Pacific Tel. & Tel. Co. v. City & Cty. of San Francisco

• Decision Date: 17 March 1959
• Citation: 51 Cal.2d 766,336 P.2d 514
• Court: California Supreme Court
• Parties: PACIFIC TELEPHONE AND TELEGRAPH COMPANY (a Corporation), Appellant, v. CITY AND COUNTY OF SAN FRANCISCO, Respondent. S. F. 20060.

Page 514

336 P.2d 514

51 Cal.2d 766

PACIFIC TELEPHONE AND TELEGRAPH COMPANY (a Corporation), Appellant, v. CITY AND COUNTY OF SAN FRANCISCO, Respondent.

S. F. 20060.

Supreme Court of California, In Bank.

March 17, 1959.

Rehearing Denied April 15, 1959.

Pillsbury, Madison & Sutro, John A. Sutro, Francis N. Marshall and Noble K. Gregory, San Francisco, for appellant.

Dion R. Holm, City Attorney, George E. Baglin and Robert M. Desky, Deputy City Attorneys, San Francisco, for respondent.

McCOMB, Justice.

Plaintiff, hereinafter referred to as 'the telephone company,' brought an action for declaratory relief to establish its claim of a state franchise to construct and maintain telephone lines in the streets in the City and County of San Francisco. The City and County of San Francisco is hereinafter referred to as 'the city.'

After trial before the court without a jury, the court found that the construction and maintenance of telephone and telegraph lines on the public streets and other public places located within the city was not a matter of concern to all the people of the State of California, but that the use and occupation of the city streets and other public places by the company's telephone lines was a municipal affair.

The court entered a judgment which determined that the city could exclude from its streets telephone lines essential to the furnishing of communication services to people throughout the State of California, unless the telephone company obtained a franchise from the city.

This is the sole question necessary for us to determine: Is the construction and maintenance of telephone lines in the streets and other public places within the city today a matter of state concern or a municipal affair under sections 6 and 8 of article XI of the state Constitution? ¹

We are of the opinion that the construction and maintenance of telephone lines in the streets and other public places within the city is today a matter of state concern and not a municipal affair.

Prior to 1896 the Legislature had plenary authority over all cities and their charters. (People ex rel. Blanding v. Burr, 13 Cal. 343, 351.) This rule was also applicable to cities which adopted freeholders' charters under the Constitution of 1879 (Davies v. City of Los Angeles, 86 Cal. 37, 41, 24 P. 771; Ex parte Ah You, 82 Cal. 339, 342, 22 P. 929) and to cities which continued to operate under a special act adopted prior to 1879 (Thomason v. Ashworth, 73 Cal. 73, 76 et seq., 14 P. 615).

In 1896 section 6 of article XI of the Constitution was amended to provide a limited amount of autonomy for freeholders' charter cities. It provided that charters 'framed or adopted by authority of this Constitution, except in municipal affairs, shall be subject to and controlled by general laws.' (Italics added.) The city acquired its first freeholders' charter under this amendment, and this was the charter in effect when the telephone company began to render telephone services in the city.

It has been uniformly held that where a freeholders' charter adopted while such amendment was applicable specifically delegated to a city power with respect to particular municipal affairs, such delegated power controlled over general laws, but that if there was no specific charter provision delegating power with respect to a particular subject, the general laws applied within the city even if the subject was a municipal affair. (Fragley v. Phelan, 126 Cal. 383, 389, 395, 58 P. 923; Civic Center Ass'n of Los Angeles v. Railroad Commission, 175 Cal. 441, 447 et seq., 166 P. 351; Stege v. City of Richmond, 194 Cal. 305, 310 (1) et seq., 228 P. 461.)

In 1914 sections 6 and 8 of article XI of the Constitution were amended to give greater autonomy with respect to municipal affairs to cities whose charters were adopted or amended after 1914. After 1914 the city, by appropriate amendment to its charter, acquired autonomy with respect to all municipal affairs except to the extent that its charter limited or restricted such autonomy. (West Coast Advertising Co. v. City and County of San Francisco, 14 Cal.2d 516, 522 (2), 95 P.2d 138.)

As to matters which are of state concern, however, freeholders' charter cities remained subject to and controlled by general state laws regardless of the provisions of their charters. (Cal.Const. art. XI, § 6; Civic Center Ass'n of Los Angeles v. Railroad Commission, supra at page 445, of 175 Cal. at page 352 of 166 P.; Douglass v. City of Los Angeles, 5 Cal.2d 123, 128 (2), 53 P.2d 353.)

Since 1850 the State of California has by statute authorized the construction and maintenance of telegraph lines in the roads, highways and other public places in this state. (Cf. County of Los Angeles v. Southern Cal. Tel. Co., 32 Cal.2d 378, 381 (1), 196 P.2d 773.) This statute was codified as section 536 of the Civil Code. ²

In Western Union Telegraph Co. v. Hopkins, 160 Cal. 106, 114 et seq., 116 P. 557, it was held that section 536 of the Civil Code constituted an offer by the state to telegraph corporations of a franchise to construct and maintain their lines in the highways and other public places within the state, including the streets located in freeholders' charter cities.

In 1905 the Legislature repealed section 536 of the Civil Code and re-enacted it to read as follows: 'Telegraph or telephone corporations may construct lines of telegraph or telephone lines along and upon any public road or highway, along or across any of the waters or lands within this state, and may erect poles, posts, piers, or abutments for supporting the insulators, wires, and other necessary fixtures of their lines, in such manner and at such points as not to incommode the public use of the road or highway or interrupt the navigation of the waters.' (Italics added.) The legislative intention in re-enacting this statute was to extend to telephone corporations the same offer previously made to telegraph corporations without any other change in its effect or operation. (County of Los Angeles v. Southern Cal. Tel. Co., supra at 382, of 32 Cal.2d at page 776 of 196 P.2d.)

In 1912 the United States Supreme Court in City of Pomona v. Sunset Telephone & Telegraph Co., 224 U.S. 330, 344 et seq., 32 S.Ct. 477, 479, 56 L.Ed. 788, held that the legislative intention to extend the offer of a state franchise to telephone corporations had been frustrated by another statute, the Broughton Act (Stats.1905, chap. 578, p. 777, now Pub.Util.Code, §§ 6001-6017) enacted by the Legislature at the same session at which it had re-enacted section 536 of the Civil Code. The Broughton Act provided a procedure for cities and counties to grant franchises 'to erect or lay telegraph or telephone wires' in the public streets. The Supreme Court of the United States in this case held that 'Until the state court shall decide otherwise,' this act must be construed as a delegation by the state to all California cities of the power to grant franchises to California corporations and, therefore, that the Legislature, by enacting the Broughton Act, had repealed section 536 of the Civil Code before it could apply to telephone corporations.

In 1921 the District Court of Appeal in County of Inyo v. Hess, 53 Cal.App. 415, 200 P. 373 (hearing denied by the Supreme Court), did 'decide otherwise' and repudiated the Pomona decision as a misconstruction of California law. The court held that the Broughton Act was purely a procedural statute and did not delegate to cities or counties any substantive authority. This court confirmed the holding of the County of Inyo case in County of Los Angeles v. Southern Cal. Tel. Co., supra, where we said: 'The Broughton Act, unlike section 536, does not grant any right or privilege, nor does it purport to empower or authorize boards of supervisors to grant franchises or other privileges, but instead indicates an intent to limit and restrict the powers which may have been granted under other laws by specifying the procedure which must be followed and the conditions which must be imposed in the granting of any franchises by subordinate legislative bodies.' (32 Cal.2d at page 383, 196 P.2d at page 777.)

It is now settled that section 536 of the Civil Code constitutes 'a continuing offer extended to telephone and telegraph companies * * * which offer when accepted by the construction and maintenance of lines' (32 Cal.2d at page 384, 196 P.2d at page 777) gives a franchise from the state to use the public highways for the prescribed purposes without the necessity for any grant by a subordinate legislative body.

It is likewise settled that the constitutional concept of municipal affairs is not a fixed or static quantity. It changes with the changing conditions upon which it is to operate. What may at one time have been a matter of local concern may at a later time become a matter of state concern controlled by the general laws of the state. (Helmer v. Superior Court, 48 Cal.App. 140, 141(3) et seq., 191 P. 1001; cf. Key System Transit Co. v. City of Oakland, 124 Cal.App. 733, 740(3), 13 P.2d 979; Shean v. Edmonds, 89 Cal.App.2d 315, 324(3), 200 P.2d 879; People v. Western Air Lines, Inc., 42 Cal.2d 621, 635(19), 268 P.2d 723.)

The undisputed evidence in this case discloses that all the communication services provided by the telephone company involve the transmission of intelligence by electrical impulses through its lines.

The telephone company provides direct communication service to the public in California, Oregon, Washington, the northern part of Idaho and, through a subsidiary, in Nevada. In California, either directly or in conjunction with connecting telephone companies, it provides communication service to all the people of the state.

The telephone company, directly or by connecting with the other 49 telephone companies operating in California, makes instantaneous communication available to all the people of the state. Because of the long distance service provided...