Postal Telegraph-Cable Co. v. City & County of San Francisco

The plaintiff and respondent herein is a telegraph corporation operating under the provisions of an act of Congress enacted on July 24, 1866 [14 Stats. 221; 9 Fed. Stats. Ann., 2d ed., pp. 505-518; U. S. Comp. Stats., secs. 10072-10077], commonly known as the “Post Roads Act” and is a public utility within the meaning and effect of the Public Utilities Act of the state of California; and as such it had established, maintained,

[1] It may be stated at the outset that it is conceded by the appellant that the city and county of San Francisco, while engaged in the operation of its municipal street railway system, is acting in a proprietary and not in a governmental capacity. It has, in fact, been so decided in the case of Vale v. Boyle, 179 Cal. 180 , [ 175 Pac. 787 ], It is, however, contended by the appellant that while the municipality may be acting in a proprietary capacity in

We are unable to follow this refinement on the part of the appellant in its attempted application to the facts of the instant case. The municipality had for some considerable time prior to the date when this controversy arose been actually engaged in the operation of its municipal railway system along Market Street to its junction with Geary Street and thence out Geary Street to and along Van Ness Avenue. It proposed the further extension of its said system out Market Street to its junction with Van Ness Avenue, and was actually threatening to proceed with such extension with the imminent consequence of the destruction of the plaintiff’s manholes when, in order to avoid such destruction, the plaintiff, under protést, removed and replaced the same at the cost for which this judgment was obtained. To our minds the action of the municipality thus taken and threatened was strictly within the exercise of its proprietary and not its governmental functions. We are unable to distinguish this case from the case of Los Angeles Gas & Electric Co. v. Los Angeles, 251 U. S. 32 , [ 64 L. Ed. 121 , 40 Sup. Ct. Rep. 32 ], In that case it appeared that the city of Los Angeles, which for some time had been engaged in the erection, construction, and operation of a distributing system for the distribution and sale of electric energy to be used for the lighting of its streets and public places of said city and for supplying its inhabitants with electricity for illumination and other purposes for remuneration, enacted an ordinance requiring various persons, firms, and corporations then maintaining in the streets and public places of said city certain appliances for the distribution and sale of electric energy, to remove or relocate the same at the expense of the owners

We fail to appreciate the force of this distinction. [2] The plaintiff’s acceptance and use of the portion of said street wherein its conduits and manholes were placed was something more than a mere privilege, revocable by the municipality at will. The plaintiff in its occupancy of these portions of said street was acting under the authority of the act of Congress commonly known as the Post Roads Act, which entitled it to use the streets of cities for its wires and conduits, which were a necessary part of its interstate and foreign telegraph system and service. It was also entitled to such use under the provisions of section 536 of the Civil Code of California. The occupation and use of said street under the authority thus conferred did not, of course, give to the plaintiff the right to lay its conduits or establish and maintain their approaches in such a manner as would interfere with the normal and ordinary uses of the street for purposes of travel and traffic; but it was, nevertheless, a valuable and vested right, and

The case of In re Board of Rapid Transit Commrs. of the City of New York, 197 N. Y. 81 , [90 N. B. 456], is directly in point upon this phase of the case, the question involved in that case being the right of the city of New York, in the course of the construction and operation of an underground railway along certain of its streets, to take or damage the property right or fee of abutting land owners in such streets without compensation. The court held that the use of a public street for railway purposes was'not such a street or highway use for the usual and ordinary purposes for which public streets and highways are created as would justify the taking, damaging, or destruction of the property or rights of other persons in,' along, or under such streets without compensation, and that the city of New York in entering upon the use of its said streets for the purposes of an underground railway was engaged in a proprietary enterprise, and was not acting in or exercising k governmental function.

We can discover no real distinction in principle between the above case and the case at bar. It is not contended that the plaintiff’s conduits and established manholes and approaches thereto in any way interfered with or obstructed the ordinary uses of said street for the purposes of public travel, or that the city, in the exercise of its police power, had any such cause to order their removal or change in form or place. [3] It was only when the municipality entered upon the proprietary enterprise of constructing, operating, and extending a municipal railway system that the properties of the plaintiff, in place under its several franchises entitling it to the use of said street, were so threatened with destruction as to render their removal and replacement imperative. Under such conditions we think the municipality was bound to pay the reasonable cost to plaintiff of the compulsory removal and replacement of its said properties,

Kerrigan, J., and Waste, P. J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on August 11, 1921. .

All the Justices concurred, except Angellotti, C. J., and Wilbur, J., who were'absent.