section 2, art. 1, of the charter, as amende for; and that they have for that purpose in 1909. These subdivisions authorize the city availed themselves of the general grant from to sell surplus water or surplus electric pow- the state contained in section 19, art. 11, of er, belonging to the city, to other cities, or to the Constitution, of the privilege of using consumers outside of the city of Los Angeles. the public streets of said city, and have, in It is argued that this, in effect, gives the city pursuance thereof, laid and maintained in unlimited power to engage in the business of said streets mains, pipes, conduits, poles and generating and supplying electricity through- wires for the transmission and distribution out the state, as a commercial enterprise, of gas and electricity to the city and its inin the same manner and to the same extent habitants, and now maintain and operate the as any public service corporation or private same. It is earnestly insisted that the efperson might do, and that this is not a mu- fect of the constitutional provision is to vest nicipal purpose and the exercise of it would in these corporations a franchise which, so be beyond the power of the city as a corpor- far as the city is concerned, is exclusive, or, ation for municipal purposes, within the at least, that it amounts to an undertaking meaning of the Constitution (article 11, § 6), or promise by the state, binding upon each citing Low v. Marysville, 5 Cal. 214. There city, respectively, that whenever any such is nothing in the ordinance calling the elec- corporation shall have accepted the offered tion, or in the resolution of intention pre- franchise to use the streets and shall have ceeding it, which suggests that the city in- laid therein its pipes and conduits, or erecttends to engage in any such enterprise, ored its wires thereon, such city shall not even that it intends to sell any surplus of thereafter engage in the same business thereelectricity over and above that needed by in in competition with such corporation, or the city and its inhabitants. If it should use the streets for that purpose. The quesattempt to engage in the business solely as tion is a new one in this court. a commercial enterprise for profit its pow- Section 19, aforesaid, is as follows: "In er in that behalf can be tested when the any city where there are no public works attempt is made. These proceedings will not owned and controlled by the municipality estop any citizen or taxpayer from making for supplying the same with water or artithe objection at that time. Furthermore, ficial light, any individual, or any company the secret or avowed intention to do either duly incorporated for such purpose under of these things, even if without authority, and by authority of the laws of this state, would have no effect on the validity of bonds shall, under the direction of the superinauthorized and issued solely for the legiti- tendent of streets, or other officer in control mate purpose of supplying electricity to the thereof, and under such general regulations city and its inhabitants. The fact that such as the municipality may prescribe for dambusiness was suggested in a report of the ages and indemnity for damages, have the board of public works made to the council privilege of using the public streets and thorbefore the proceedings to issue the bonds oughfares thereof, and of laying down pipes were begun, does not make it a part of the and conduits therein, and connections thereproceedings nor affect the validity thereof. with, so far as may be necessary for introducing into and supplying such city and its inhabitants either with gaslight or other illuminating light, or with fresh water for domestic and all other purposes, upon the condition that the municipal government shall have the right to regulate the charges thereof."

It is a general principle of construction, too well established to require discussion, that grants of franchises and special privileges by the state to private persons or cor

[3] 3. There is no force or merit in the proposition that the proposed dedication of the contemplated works and the product thereof to the purpose of supplying electric power to the inhabitants of the city for their private use is not a dedication to public use. No substantial distinction can be drawn in that respect between the general distribution of electricity for power and its distribution for light or heat, or between the general distribution of electricity for power in private business, and the general distribu-porations are to be construed most strongly tion of gas or water for private use. We deem it unnecessary to discuss the question. [4] 4. It is alleged in the complaint that the city of Los Angeles has not heretofore supplied to its inhabitants electricity or any other substance for light, heat or power; that there are and for many years have been certain public service corporations engaged in the business of supplying gas and electricity to the city and to its inhabitants, in general, for light, heat and power for private and public uses and purposes; that these corporations have invested large sums of money in that business and now have much valuable property devoted thereto and necessary there

in favor of the public, and that, where the privilege claimed is doubtful, nothing is to be taken by mere implication as against public rights. Charles River B. Co. v. Warren B. Co., 11 Pet. 543, 547, 9 L. Ed. 773; Helena W. Co. v. Helena, 195 U. S. 392, 25 Sup. Ct. 40, 49 L. Ed. 245; Knoxville W. Co. v. Knoxville, 200 U. S. 33, 26 Sup. Ct. 224, 50 L. Ed. 353; Mayrhofer v. Board, 89 Cal. 112, 26 Pac. 646, 23 Am. St. Rep. 451; Skelly v. School Dist., 103 Cal. 655, 37 Pac. 643; Witter v. School Dist., 121 Cal. 350, 53 Pac. 905, 66 Am. St. Rep. 33. [5] It is also a settlea rule founded upon the foregoing principle, and it is conceded by appellant, that where

The exact point here involved was decided by the United States Circuit Court for the Southern District of California in Madera Waterworks v. Madera (C. C.) 185 Fed. 281, decided by Wellborn, J., on September 12, 1910. It was there held that after private capital has, in a city of this state where there are no municipal waterworks, laid its main and pipes in the streets in pursuance of the constitutional grant, and while it continues to operate such works, the city itself may install and operate similar works in competition with the private works. The opinion is elaborate and exhaustive and it satisfactorily establishes the proposition.

a grant of such franchise by the state or | The other cases cited are to the same effect. some municipality thereof is not by its terms made an exclusive franchise, and the city in which it is to be exercised is not, by the law or ordinance granting it, forbidden or prevented from competing, then a city may establish its own works for the same purpose and engage in the same public service within the city, although it may thereby injure, or practically destroy, the business of the holder of such franchise. Knoxville W. Co. v. Knoxville, supra; Helena W. Co. v. Helena, 195 U. S. 392, 25 Sup. Ct. 40, 49 L. Ed. 245; Joplin v. Light Co., 191 U. S. 156, 24 Sup. Ct. 43, 48 L. Ed. 127; Hamilton G. Co. v. Hamilton, 146 U. S. 268, 13 Sup. Ct. 90, 36 L. Ed. 963; Skaneateles W. Co. v. Skaneateles, 184 U. S. 363, 22 Sup. Ct. 400, 46 L. Ed. 585.

[7] The statement in section 22 of article 1, that the provisions of the Constitution are mandatory and prohibitory, does not require a different interpretation of section 19, art. 11. It refers to the effect, not to the meaning, of the constitutional provisions, and declares that they are imperative and paramount, according to their true meaning, ascertained by the rules of construction otherwise applicable thereto. Section 22, as is well known, was inserted because of certain previous decisions holding that the provisions of the Constitution of 1849 regarding the titles of legislative acts were directory and not mandatory. Washington v. Page, 4 Cal. 388; Ex parte Newman, 9 Cal. 523; Pierpont v. Crouch, 10 Cal. 315; In re Boston M. Co., 51 Cal. 626. As there is no declaration, express or implied, in section 19. that cities shall not establish competing works, and use the public streets for that purpose, there is nothing on that point to which section 22, art. 1, can be applied.

[6] The express grant made by section 19 is of the privilege, franchise, or easement to place in the public streets of a city the conduits necessary or convenient for the business of supplying light or power to the city and its inhabitants. It may be accepted by any person, or by any company duly incorporated to engage in that business. The section does not declare that such franchise or easement, when accepted, shall be exclusive. It implies the contrary, for it does not confine the grant to the first person or corporation to accept it and use the streets, but extends it to "any individual or any company." See Stockton, etc., Co. v. San Joaquin Co., 148 Cal. 318, 83 Pac. 54, 5 L. R. A. (N. S.) 174. The debates over its passage in the constitutional convention show that it was not intended to give a monopoly to the first company, or to encourage monopolies at all, but to prevent them, so far as the right to use the streets was concerned, by conferring the right upon any competitor against an established company. People v. Stephens, 62 Cal. 235. It is true the right is not given in cities which are operating municipal works for the same purpose. But there is nothing in the terms of the section which would prevent a city from granting to an opposition company a right to establish such works, nor anything in the nature of a declaration, prom-ed of rights or powers unless the intent to ise, or assurance that cities which have no such public works shall not establish such works and use the streets therefor after a private company has availed itself of the privilege granted. Under the rule stated, therefore, this section should not be construed to grant an exclusive franchise in the streets, or to prevent a city from establishing and operating such public waterworks or light works, notwithstanding the fact that private persons or corporations are using the streets in operating works of the same kind.

In the Knoxville Case the city had stipulated that it would not grant a similar franchise to any other person. Yet it was held that the city was at liberty to establish and operate municipal works, regardless of the

It is suggested that from the fact that the right to use the streets is offered only in cities having no municipal works, an implication or inference arises that the city shall not establish municipal works after the constitutional offer to private parties has been accepted and used. The rule above stated, that nothing is to be taken by implication against public rights, that the public authorities will not be deemed to have been depriv

that effect clearly appears, is a sufficient answer to this suggestion.

[8] 5. It is argued that the proceedings are void because the question voted on included two distinct and separate objects or purposes, while the law allows but one to be submitted. Conceding, for argument's sake, that the Constitution (section 18, art. 11) and the bond act (Stats. 1907, p. 609) require that each question submitted to a vote shall specify a single object or purpose only, as the thing for which the proposed indebtedness is to be incurred, we are of the opinion that the question, as submitted, does not transgress such rule. The question, as printed on the ballot, was as follows: "Shall the city of Los Angeles incur a bonded debt of $3,500,

structing a certain revenue producing munic-ly contemplates that it may be done either ipal improvement, to wit, works for generat- before or after the vote of the people is taking and distributing electricity for the pur- en on the issuance of the bonds, and withpose of supplying said city and its inhabit-out action thereon by the people.

of ordinary annual revenues of the city. Both the original resolution of intention to establish the improvement and the ordinance calling the election declare that the estimated cost of the proposed improvement was $3,500,000. This was a sufficient compliance with the statute. It will be presumed from this recital, that the council did previously make the estimate stated.

ants with light, heat and power, including [11] 7. The objection that the council, bethe acquisition of lands, water rights, rights fore calling the election, did not make an of way, machinery, apparatus and other prop- estimate of the cost of the proposed improveerty and the construction of electric generat- ment, is not sustained by the record. Secing works, substations, transmission and dis- tion 1 of the bond act requires that the ortributing lines, conduits and other works dinance calling the election shall recite "the necessary therefor?" This states but a sin- estimated cost of the proposed public imgle object and purpose, namely, the estab-provements," and the provisions of the seclishment of the municipal improvement de tion authorize a bond issue when the cost of scribed. In order to accomplish this purpose the improvement is too great to be paid out and secure this object many things were, of course, necessary to be done, and they are also stated in general terms in the question. But by the question stated the money obtained from the proposed bonds is not to be used for any of the physical objects mentioned in the more detailed description, unless they are necessary for the principal purpose and object, that is, the works for supplying the city and its inhabitants with electricity. [12] 8. Another objection is that the publicaThe words "acquiring and constructing" do tion of the ordinance was insufficient because not express the dual purpose of acquiring it was not preceded by words in black face one improvement of this kind and construct-type describing in general terms the purport ing another, with the money obtained. They or character of the notice intended to be givindicate the single purpose of acquiring all en, as directed by section 4459 of the Political the property that may be found necessary for Code. See Derby v. Modesto, 104 Cal. 523, the proposed works, even including water 38 Pac. 900. The ordinance was preceded rights, and constructing works with said by its title, which clearly described its purproperty. To hold that the city must submit port. We do not regard the fact that it was in one question the proposition to construct not printed in black face type of sufficient the electrical works and in another question, importance to warrant a holding that the to be voted on separately, the proposition to proceedings were thereby invalidated, even acquire the property necessary to be used in if the section cited was applicable to the elecsuch construction, would be to hold that the tion notice in question, which we do not depeople might by one vote authorize the con- cide. struction of the plant, and by the other defeat it by refusing authority to buy the property necessary for that purpose. It is practically imperative that the question put should include in one proposition everything necessary for the Improvement.

[13] With regard to the points numbered 6, 7 and 8, it may be further remarked that even if the proceedings in the particulars mentioned had been irregular as claimed, they would be validated by the act of the Legislature of March 21, 1911, chapter 234, statutes of 1911. That act expressly declares that all bond issues irregularly authorized by any municipality in the state shall be valid, notwithstanding such irregularity or defect, if they have, at the election called for that purpose, received a two-thirds vote of the electors voting thereon. Chase v. Trout, 146 Cal. 358, 80 Pac. 81.

[9] There is no provision of the bond act, or of the Constitution, which requires that the question shall state the precise location of the works to be provided out of the fund voted, or that they should be within the city limits. In the nature of things the construction of waterworks would require a large part of them to be situated outside of the city limits, and the city authorities must be given a wide discretion as to the location of public works in many cases, even after the money is obtained on the bonds. The ques-edness allowed by the city charter. tion states the purpose with sufficient detail and certainty.

[14] 9. Lastly, it is contended that the proposed bond issue is invalid because the amount thereof exceeds the limit of indebtIt ap

pears that at the same election, and by the same ordinance, there was submitted to the [10] 6. It is objected that the proposition voters of the city a proposition to issue bonds submitted does not state when the bonds shall to the amount of $3,000,000 to defray the become payable. We find nothing in the cost of certain harbor improvements which Constitution or act aforesaid which re- the city proposed to make at Wilmington quires the time of maturity of the bonds to harbor, within the city, and that this propbe stated in the question voted on, or to be osition also carried. At the time of the elecdecided by the vote of the people. Section tion the charter of the city provided that the 2 of the act provides that the city council indebtedness of the city, exclusive of debts for shall determine that question, and it plain-waterworks, sewers and storm drains, "must

not exceed the sum of five million dollars." | existing limit. The authorities so declare. The indebtedness previously existing, exclu- Frost v. Central City, 134 Ky. 434, 120 S. W. sive of that for waterworks, sewers, and storms drains, was $1,324,600. The bonds for the electric works would bring the indebtness up to $4,824,600, which is a little below the limit. But if the harbor bonds are added, the total amount would exceed the limit. As both were carried by the people at the same election, it would be difficult to say that one preceded the other, or that the people preferred one to the other, so as to determine which should be declared valid in preference to the other. There were 406 more votes in favor of the electric works' bonds, and 300 less votes against them, than upon the harbor bond proposition, in a total of 14,041. We are not prepared to say that this would suffice to make the electric works' bonds valid and the harbor bonds void. We find it unnecessary, in view of a subsequent amendment of the city charter, to determine this question.

367; Austin v. Valle (Tex. Civ. App.) 71 S. W. 414; Dudley v. Lake, 80 Fed. 677, 26 C. C. A. 82; Corning v. Meade Co., 102 Fed. 57, 42 C. C. A. 154; Board v. National L. I. Co., 94 Fed. 328, 36 C. C. A. 278; Lake Co. v. Sutliff, 97 Fed. 281, 38 C. C. A. 167. The effect of the amendment, therefore, is to raise the limit existing at the time the vote was taken and to make the bonds valid if, at the time they are issued, they do not then increase the debt beyond the increased amount allowed. If the case had been submitted on appeal prior to the amendment of the charter aforesaid, the condition of the record at that time, and the then existing limit, would have required a decision with respect to the amount of the respective issues that could be considered valid. [16] But the amendment of the charter has the effect of law and is a matter of judicial knowledge. The stipulation of the fact as to the assessed valuations enables us to decide the case according to the law as it now exists and thereby to avoid the necessity for further litigation concerning the validity of the bond issues. They have not been issued and are not existing debts of the city. They do not exceed the present limit of indebtedness, and hence, so far as that objection is concerned, they are valid.

This concludes all the points urged in the briefs. We find no ground for declaring the bonds invalid.

The judgment is affirmed.

On March 6, 1911, an amendment of the charter on this subject was submitted to the voters of the city and ratified by them, and on March 20, 1911, the same was duly approved by the Legislature. This amendment provides that for the purpose of acquiring, constructing or completing electric light and power works, and certain other specified purposes, the city may incur an indebtedness not exceeding 12 per centum of the assessed value of all taxable real and personal property - within the city, in addition to 3 per cent. allowed for certain other purposes. It is stipulated by the parties, as a fact to be considered in the decision of this appeal, that the total assessed value of the taxable property within the city in the year 1910 was $289,279,927, and that for the year 1911 it was $332,884,924. This places the proposed bonded debt far below the limit allowed by the amendment. The vote of the electors upon a proposition to issue bonds for municipal improvements does not ipso facto create a debt against the city to the amount authoriz-curiæ. ed. The indebtedness of the city is not thereby increased. The increase occurs when the bonds are issued and become valid obligations in the hands of the holders, that is when they are sold and delivered to the purchaser.

[15] The provision of the charter, prior to the amendment, was that the indebtedness "must not exceed" five million dollars. It is obvious that this provision has not been violated, since the bonds here involved have not been issued, and the city indebtedness has not been increased by reason thereof. It still remains only $1,324,600. From this it follows that if, at the time the bonds are issued and become lawful debts, they do not raise the indebtedness above the legal limit, as then established, they will not be deemed void because of the fact that at the time the vote authorizing them was taken, the

J.;

We concur: ANGELLOTTI, J.; SLOSS, MELVIN, J.; LORIGAN, J.; HENSHAW, J.

On Rehearing.

Scarborough & Bowen, for appellant. John W. Shenk, City Atty., Lester R. Hewitt, and W. B. Mathews, for respondent. J. W. McKinley and Edward G. Kuster, amici

PER CURIAM. A petition for rehearing has been presented by certain persons as amici curiæ, on behalf of corporations engaged in supplying electricity to the inhabitants of Los Angeles. We briefly notice the arguments therein not considered in the opinion heretofore filed.

[17] 1. It is contended that the business of supplying electricity for motive power is a private business not within the scope of municipal purposes for which, under the Constitution, municipal corporations may be organized as provided in sectious 6 and 8 of article 11. We can see no ground for any distinction in this respect between the use of electricity for power and its use for heat and light, for which purposes counsel admit that cities may distribute it if authorized by law. It has come to be in common use in