Mutual Electric Light Co. v. Ashworth

California Supreme Court Sep 3, 1897 No. S. F. No. 583Published

Before: Henshaw, McFarland, Temple

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Holding. The court held that while the discriminatory denial of permits by city officials is unlawful, an injunction cannot be granted to allow the plaintiff to obstruct public streets without the required permit, as such an obstruction constitutes a nuisance.

Issues

Whether an injunction should be granted to restrain city officials from interfering with the erection of poles in public streets without a required permit.
Whether the discriminatory application of a valid ordinance by city officials justifies the violation of that ordinance by the plaintiff.

Disposition. affirmed

Quotations verified verbatim against the opinion

“It cannot be denied that such an obstruction, without the permit, is unlawful, and therefore a nuisance.”

“It cannot be, however, by a violation of a valid ordinance.”

Synopsis

APPEAL from an order of tbe Superior Court of tbe City and County of San Francisco refusing an injunction. J. M. Seawell, Judge.

The facts are stated in tbe opinion of tbe court.

It was lawful for plaintiff to use tbe public streets of San Francisco for electric lighting purposes. (Const., art. XI, sec. 19.) Being lawful its acts could not be a nuisance. (Civ. Code, secs. 3479, 3482; Marini v. Graham, 67 Cal. 130; Ex parte Taylor, 87 Cal. 91; Vernon v. Voegler, 113 Ind. 325; Miller v. New York, 109 U. S. 385; Commonwealth v. Capp, 48, Pa. St. 53.) Section 19, article XI, of the constitution, is self-executing and binding upon every department of the government, state and municipal. (Ewing v. Oroville Min. Co., 56 Cal. 654; Spring Valley Water Works v. San Francisco, 61 Cal. 18, 24, 25; People v. Stephens, 62 Cal. 209, 234-36; Const., art. I, sec. 22.) A city has no right to create a monopoly without express authority. (Saginaw Gas Light Co. v. Saginaw, 28 Fed. Rep. 529; Jackson etc. R. Co. v. Interstate etc. Ry~ Co., 24 Fed. Rep. 306; New Orleans etc. R. Co. v. Crescent City R. Co., 12 Fed. Rep. 308; 5 Fed. Rep. 160; Norwich City Gas Light Co. v. Norwich City Gas Co., 25 Conn. 19; City v. Cincinnati Gas Light Co., 18 Ohio St. 262; Grand Rapids etc. P. Co. v. Grand Rapids etc. Gas Co., 33 Fed. Rep. 659.) A city ordinance which unfairly discriminates between competing companies is void. (Chicago ¶. Rumpff, 45 Ill. 90; Tugman v. Chicago, 78 Ill. 405; Ex parte Chin Yan, 60 Cal. 78; Ex parte Frank, 52 Cal. 606; Tarkio v. Cook, 120 Mo. 1; Davis v. Anita, 73 Iowa, 325; Ex parte Burnett, 30 Ala. 461; Austin v. Murray, 16 Pick. 121; Milhau v. Sharp, 17 Barb. 435; Dunham v. Trustees of Rochester, 5 Cow. 462; Mayor etc. v. Thorne, 7 Paige, 261.)

Section 19 of article XI of the constitution confers no right to erect posts in the streets, but is limited to the laying of pipes and conduits, under a proper construction of the language used. (Sutherland on Statutory Construction, 219-79, 326; State v. Green, 24 Mo. App. 227; Albertson v. State, 9 Neb. 429; State v. Trenton, 38 N. J. L. 64; People v. Wells, 11 Cal. 329; Hoey v. Gilroy, 129 N. Y. 132; Smith v. Stephens, 10 Wall. 321; 23 Am. & Eng. Ency. of Law, 446.) A post on the street is an obstruction and a nuisance, unless legalized by municipal authority. (Commonwealth v. Boston, 97 Mass. 555.) Any unlawful obstruction of a sidewalk is a nuisance. (Marini v. Graham, 67 Cal. 130; Ex parte Taylor, 87 Cal. 91; Bonnet v. San Francisco, 65 Cal. 230; Ex parte Casinello, 62 Cal. 538; Young v. Inhabitants etc., 9 Gray, 386.)

TEMPLE, J.- This is an appeal from an order refusing an injunction. The action was brought for the purpose of obtaining an injunction restraining the personal defendant, bis servants and deputies, from “interfering with, obstructing or prohibiting plaintiff from erecting its posts, making the necessary connections with its supply wires or furnishing electric lights to the citizens and inhabitants of the city and county of San Francisco; and specially from hindering and preventing this plaintiff from making connections with its electric wires as aforesaid on said Market street, in said city and county of San Francisco, in the block bounded by Geary and Kearny streets, Grant avenue, and Market street.

The verified complaint sets forth the incorporation of plaintiff for the purpose of furnishing electric light to the inhabitants of San Francisco; that the owners of the premises fronting the portion of Market street'described applied to plaintiff for electric light in the building and for lights in front of the building, as they had theretofore been supplied by the Electric Light and Power Company. That plaintiff proceeded to erect posts just as they had been theretofore maintained by the rival company, with the consent of the city, but was stopped by the defendants and its servants threatened with arrest if they proceeded to erect the poles.

Many other matters are alleged tending to show that the defendants are favoring the rival company, and obstructing the plaintiff in the interest of its rival, and it is averred that the opposition of plaintiff has reduced the charge for electric lighting twenty-five per cent.

In response an affidavit of a deputy street superintendent is filed, the point of which is to deny that any interference has been made with plaintiff in its efforts to make connection with its wires for the purpose of furnishing light to the owners of the building. Also that the plaintiff was attempting to obstruct the streets by erecting poles therein, and an ordinance is shown which prohibits any person from erecting poles in the street without special permission so to do.

Eeply affidavits, made by P. B. Cornwall and W. B. Summer-hayes, were filed, in which the charges made in the complaint, are repeated with some more specific statements of facts, and they charge that the action of the superintendent of streets and the [4]board of supervisors preventing tbe plaintiff from carrying on its legitimate business “was and is inspired and controlled and directed by the corporation known as the Electric Light and Power Company, and was and is done for the purpose of driving the plaintiff out of the market as a competitor in electric lighting in the city and county of San Francisco.”

Mutual Electric Light Co. v. Ashworth

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