People ex rel. Sabichi v. Los Angeles Electric Railway Co.

Sharpstein, J. This action is brought to have it determined that the defendant has forfeited and that it be excluded from all rights, privileges, right of way, and franchises acquired by it under a municipal ordinance passed by the city of Los Angeles on the twenty-eighth day of January, 1886. A copy of said ordinance is annexed to and made a part of the complaint.

In the complaint, two causes of action are separately stated. “The first,” in the language of respondent’s brief, “ is based upon the theory that the law does not permit any incorporated city or town in this state to grant authority to any individual or corporation- to lay railroad tracks through the streets or public highways of such city or town whereupon cars can be propelled by the force of electric power. The second rests upon the ground that if defendant had the right to construct railroad tracks through the streets of Los Angeles, whereon it could propel cars by such electric power, it had forfeited that right by its failure to complete the road within three years from the date of the ordinance granting the right of way to construct said road, as prescribed by the Civil Code.”

The complaint was demurred to by the defendant on the ground that it did not state facts sufficient to constitute a cause of action, and each alleged cause of action was separately demurred to on the same ground. The demurrer was overruled, defendant failed to answer, and [340]judgment by default was entered against it by which it is adjudged guilty of usurping and unlawfully holding said franchise described in said complaint, and adjudging that the defendant be excluded from all rights, privileges, right of way, and franchise acquired under and by virtue of said municipal ordinance numbered 210, described in said complaint, and that the same has become wholly forfeited.

From that judgment this appeal is taken. Since this appeal was taken, the legislature of this state has passed two acts which, in our opinion, have an important bearing upon this case. By one of said acts, section 497 of the Civil .Code is so amended as to invest municipal corporations with the power to grant a right to propel cars by electricity upon railroad tracks through streets and public highways. By the other of said acts, ordinances passed prior to the passage of said act, by any municipality, giving authority and permission to propel cars upon railroad tracks .laid through the streets and public highways of said city, city and county, or town, by electricity, are confirmed, ratified, and made valid. If constitutional, the efficacy of this act of the legislature cannot, in our opinion, be doubted. Respondent claims that it'is repugnant to section 7, article XII., of the constitution, which section reads as follows: “The legislature shall not extend any franchise or charter, nor remit the forfeiture of any franchise or charter of any corporation now existing, or which shall hereafter exist; under the laws of this state.”