Act Cited.

Thompson v. Alameda Co., 111 Cal. 553, 44 Pac. 230; People ex rel. v. Craycroft, 111 Cal. 544, 4 Pac. 463; South Pasadena v. Los Angeles Terminal Co., 109 Cal. 315, 41 Pac. 1093; People ex rel. v. Supervisors, 122 Cal. 421, 55 Pac. 131; Horton v. Los Angeles, 119 Cal. 602, 51 Pac. 956.

Annotation.

Construction of Act-Sale for Cash.-By the terms of this act, franchises named therein must be sold for cash, and an agreement to pay a percentage of the gross receipts cannot be received as a lawful bid or tender. (Thompson v. Alameda Co., 111 Cal. 553, 44 Pac. 230.) And mandamus will not lie to compel the award under such a bid. (Thompson v. Alameda Co., 111 Cal. 553, 44 Pac. 230.)

Constitutionality-Title.-This act sufficiently embraces in the latter clause of the title the subject matter of the issuance and sale of franchises by county boards of supervisors, although such counties are not properly within the designation of municipalities. (Thompson v. Alameda Co., 111 Cal. 553, 44 Pac. 230.)

Steam Railroads not Included.-Steam railroad franchises to pass through the streets of a city en route between the company's termini are not required to be granted according to the terms of this act. And mandamus will lie to compel the city trustees to act upon an application for such a franchise without reference to the act of 1893. (People ex rel. v. Craycroft, 111 Cal. 544, 44 Pac. 463.)

Power to Grant Legislative.-Authority of city officers to grant use of public streets for railroad purposes is legislative, and is not referable for its support to the power of making contracts. (South Pasadena v. Los Angeles Terminal Ry., 109 Cal. 315, 41 Pac. 1093.) And no valid franchise can be granted by the supervisors which conflicts with the general laws. (People ex rel. v. Sutter St. Ry. Co., 117 Cal. 604, 49 Pac. 736.) And after this act took effect, the granting of franchises was governed by its provisions, and not by the provisions of the Political Code. (People ex. rel. v. Supervisors, 122 Cal. 421, 55 Pac. 131.)

Consistent With County Government Act.-This act is not repealed by section 25, subdivision 40, of the county government act, in effect on the following day, giving to boards of supervisors general power to fix terms, conditions, and restrictions upon which franchises may be granted, since full force and effect may be given to both statutes. (Thompson v. Alameda Co., 111 Cal. 553, 44 Pac. 230.)

Proceeding Commenced Under Act of 1893, Defeated by Act of 1897.-Proceedings for sale of franchise under act of 1893 could not be carried to a conclusion after the repeal of that act, and approval of act of 1897 (Stats. 1897, p. 135). (Horton v. Los Angeles, 119 Cal. 602, 51 Pac. 956.)

Proceedings to Forfeit.-A proceeding to forfeit a franchise is by information of the attorney general, who has control of the action, and the proceeding is not by relation, unless the relator has an interest in the proceeding. (People ex rel. v. Sutter St. Ry. Co., 117 Cal. 604, 49 Pac. 736.)

An act providing for the sale of street railroad and other franchises in municipalities, and providing conditions for the granting of such franchises by the legislative or other governing bodies, and repealing conflicting acts.

[Approved March 13, 1897; Stats. 1897, p. 135. See the following act, also note under sec. 4 of this act.]

Section 1. Every franchise or privilege to erect or lay telegraph or telephone wires, to construct or operate street railroads, upon any public street or highway, to lay gas or water pipes, to erect poles or wires for transmitting electric power, or for lighting purposes, along or upon any public street or highway, or to exercise any other privilege whatever hereafter proposed to be granted by the board of supervisors, board of trustees, common council, or other governing or legislative body of any city and county, city, or town within this state, except steam railroads, telegraph lines, and renewal of franchise for piers, chutes, and wharves, shall be granted upon the conditions in this act provided, and not otherwise. The fact that an application for such franchise or privilege has been made to such board of supervisors, board of trustees, common council, or other governing or legislative body, together with a statement that it is proposed to grant the same, must first be advertised in one or more newspapers of the city and county, city, or town, wherein the said franchise or privilege is to be exercised. Such advertisement must state that bids will be received for such franchise, and that it will be awarded to the highest bidder, and such advertisement must be published in such daily newspaper once a day for ten successive days, and if there be no daily newspaper published in such county, city and county, or city, then it shall be published in a weekly newspaper published in such county,

city and county, or city, once a week for four weeks, and in either case the full advertisement must be completed not less than twenty nor more than thirty days before any further action of the board of supervisors, board of trustees, common council, or other governing or legislative body. The advertisement must state the character of the franchise or privilege proposed to be granted, the term of its continuance, and if a street railroad, the route to be traversed; that sealed bids or tenders will be received up to a certain hour on a day named therein, and a further statement that no bids will be received of a single sum or amount stated, but that all bids must be for the payment in lawful money of the United States of a stated per cent of the gross annual receipts of the person, partnership, or corporation, or other authority to whom the franchise is awarded, arising from its use, operation, or possession. No percentage shall be paid for the first five years succeeding the date of the franchise, but thereafter such percentage shall be payable annually, and shall in no case be less than three per cent per annum upon such gross receipts, the franchise to be forfeited by failure to make the payments stated in the bids upon which the award was made; provided, the board of supervisors, board of trustees, common council, or other governing or legislative body may provide as a condition of such franchise that the payments of said percentage shall begin at any time less than five years after the franchise is granted, if such franchise is a renewal, or substantially a renewal, of a franchise already in existence. After the expiration of the time stated in the advertisement up to which sealed bids or proposals will be received, the board or other governing or legislative body herein mentioned, must meet in open session and open and read the tenders or bids. The franchise or privileges must then be awarded to the highest bidder; provided, however, that nothing in this section shall affect a special privilege, granted for a shorter term than two years; and provided further, that the governing power may reject any or all bids. And provided further, that unless the bidder shall file with his bid a bond to each county, city and county, city, town, or district, with at least two good and sufficient sureties, to be approved by such board or other governing or legislative body in a penal amount to be by it prescribed and set forth in the advertisement for bids, conditioned that such bidder shall well and truly observe, fulfill,

and perform each and all of the terms, conditions, and obligations of such franchise, in case the same shall be awarded to him, and that in case of any breach of condition of such bond, the whole amount of the penal sum therein named shall be taken and deemed to be liquidated damages, and shall be recoverable from the principal and sureties upon said bond, no award of any such franchise shall be made upon such bid, although the same may be the highest, but such franchise may be awarded to the next highest bidder, who shall have complied with this proviso, or, in the discretion of such board, or other governing or legislative body, all bids may be set aside and rejected, and new bids advertised for.

Sec. 2. No franchise now existing, or which may hereafter be granted, shall be renewed by the board of supervisors, board of trustees, common council, or other governing or legislative body above described, nor shall the extension or renewal of the same be advertised or offered for sale by such governing or legislative body until within one year prior to the date of the expiration of the existing franchise, unless the existing franchise is first surrendered by the holders thereof; provided, no franchise can be surrendered without the consent of the board of supervisors, board of trustees, common council, or other governing or legislative body of the city and county, city, or town, granting such franchise. And provided further, that on the application of the mayor, or a majority of the board of supervisors, board of trustees, common council, or other governing or legislative body above described, it shall be the duty of the attorney general to sue for a forfeiture of any franchise granted by such governing or legislative body, alleging in such suit noncompliance with the terms of the franchise.

Sec. 3. Any member of any board of supervisors, common council, or other governing or legislative body of any city and county, city, or town, of this state, who, by his vote, violates or attempts to violate the provisions of this act, or any of them, shall be guilty of a misdemeanor and of malfeasance in office, and be deprived of his office by the decree of a court of competent jurisdiction, after trial and conviction.

Sec. 4. All acts and parts of acts in conflict with this act are hereby repealed.

See the following act.

Act Cited.

Pereria v. Wallace, 129 Cal. 397, 62 Pac. 61; Horton v. Los Angeles, 119 Cal. 602, 51 Pac. 956.

Annotation.

Unconstitutional in Part.-So far as the foregoing act assumes to provide for the sale of franchises to lay waterpipes, etc., in the streets of a city or town for the supplying of the inhabitants thereof with water, it is in conflict with section 19, article XI of the Constitution, granting such right to persons generally under the conditions named therein. (Pereria v. Wallace, 129 Cal. 397, 62 Pac.

61.)

Under the power to prescribe regulations for "damages and indemnity for damages" given by section 19, article XI of the Constitution, the municipality has no further power of regulation than such as is expressly conferred, and cannot impose additional burdens or terms as conditions to the exercise of the right to lay pipes for the supplying of a city with water, or illuminating light. (In re Johnson, 137 Cal. 115, 69 Pac. 973.)

An ordinance assuming to require a permit from the superintendent of streets on verified application therefor is void. (In re Johnson, 137 Cal. 115, 69 Pac. 973.)

Effect of Act of 1897 on Proceedings Commenced Under Act of 1893. Froceedings for sale of franchise, commenced under act of 1893, but incomplete at time of passage of act of 1897, cannot be carried to a conclusion under the later act. (Horton v. Los Angeles, 119 Cal. 602, 51 Pac. 956.)

An act providing for the sale of street railroad and other franchises in municipalities, and providing conditions for the granting of such franchises by legislative or other governing bodies, and repealing conflicting acts.

[Became a law under constitutional provision without governor's approval, March 11, 1901; Stats. 1901, p. 265. Amended, Stats. 1903, p. 90.]