People v. Turlock Home Telephone & Telegraph Co.

CURTIS, J.

This is a proceeding instituted in the name of the People of the State of California upon the relation of the City of Turlock, a municipal corporation, for a judgment declaring forfeited a certain franchise held by the defendant. The amended complaint alleges that the franchise involved herein was granted by said City of Turlock on the sixteenth day of March, 1909, to J. L. Randolph, his successors and assigns, for a term of fifty years, to erect and operate over the streets of said city poles, masts, and other structures upon which to suspend wires and other appliances for the construction and maintenance of a telephone and telegraph system; that Randolph at some time subsequent to January 1, 1912, assigned and transferred said franchise to defendant; that defendant is the owner, holder, and user of said franchise; and that defendant at all times since the expiration of the five-year period subsequent to the granting of said franchise has paid to the City of Turlock its annual two per cent franchise tax on its gross earnings, except that portion of its gross earnings derived from performing switch service for the farmers’ telephone lines that connect with the lines of the defendant at the corporate limits of said city. It is also alleged that said two per cent tax is a tax provided for and required by section 3 of the act known as the Broughton Act. A general demurrer to this amended complaint was sustained by the court without

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leave to amend, and judgment was entered in favor of defendant. From this judgment the plaintiff has appealed. The principal argument advanced by respondent before the trial court in support of its demurrer, and the one mainly relied upon before this court to sustain the judgment herein, is that by virtue of the provisions of section 536 of the Civil Code telephone corporations are given the right to construct telephone lines along and upon the streets and highways of the municipalities of the state; and that under the provisions of said section of the code respondent is given the right to operate and maintain its telephone system over the streets and highways of the City of Turlock independent of any right it may have acquired under the Randolph franchise. Appellant replies to this argument of respondent by contending that section 536 of the Civil Code has been repealed by section 19 of article XI of the constitution as amended in 1911. Much of the briefs of the parties is taken up with a discussion of the merits of these respective contentions. We question whether the validity of section 536 of the Civil Code is material to any issue involved in this proceeding. This action was not brought to exclude the respondent, the Telephone Company, from the use of the streets and highways of the City of Turlock, but simply to declare forfeited the Randolph franchise, which, it is alleged in the amended complaint, the respondent now owns and holds and is using in said city. It may well be that the respondent, under section 536 of the Civil Code, if said section is still in force, has a right to maintain its telephone system in said city, but this right, whatever it may be, as respondent contends, is entirely apart from, and independent of, any right acquired by it by virtue of the ownership of the Randolph franchise. Conceding, therefore, that the rights of respondent under section 536 of the Civil Code are sufficient to protect it in the maintenance and operation of its telephone system in said city, still that fact presents no reason sufficient to defeat appellant’s claim to have the Randolph franchise, an entirely different right, forfeited, if it can be shown that the respondent has failed to comply with the law under which the latter franchise was granted, and which failure worked a forfeiture thereof. Section 3 of the Broughton Act provides: “In the event said payment (2 per cent of the gross annual receipts) is not made, said