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Ewer and the town cannot be maintained. The for other governing bodies, and repealing confacts alleged show beyond dispute that in deal- ticting acts.” ing with the public,

the municipality

Section 1 of said act is as follows: was acting in its legislative capacity, and that its action is not referable, for its support, to

"Every franchise or privilege to erect or lay the power or making contracts.

Plain- ! telegraph or telephone wires, to constructor tiff cannot avoid the restraining effect of the operate street railroads upon any public street Constitution by attempting to convert its legis or highway, to lay gas pipes for the purpose of lative acts into the contracts.

We can carrying gas for heat and power, to erect poles not escape the fact that the grant was made or wires for transmitting electric beat and powon condition that the grantee pay for the privi- er along or upon any public street or highway, lege granted--a condition, as we have seen, which or to exercise any other privilege whatever is beyond the power of the municipality to im- hereafter proposed to be granted by boards of pose.

supervisors, boards of trustees or common councils or other governing or other legislative bodies

of any city and county, city or town within tbis But it is not disputed that by said ordi- state, except steam railroads and except teleDance the board of trustees granted to Prior graph or telephone lines doing an interstate and his assigns a franchise to erect and main business, and renewals of franchises for piers,

chutes or wharves shall be granted upon the tain poles and wires for the purpose of fur-conditions in this act provided, and not othernishing electric power, and that the right wise." existed to charge for this privilege as pro It is to be seen that no mention is made vided by the statute in force at the time of said therein of any franchise for laying water grant, and the inquiry then is whether any pipes or laying or erecting pipes or strucpart of the receipts from the exercise of the tures for furnishing light. This, no doubt, lighting franchise may be included in the was in consequence of the decision in the consideration for the grant of this power | Pereria Case, supra. privilege. The statute itself provides the Said act provides also for public advertis. terms and conditions upon which said fran- ing of the application, and in section 3 therechises may be granted, and it will not be dis- of is this language: puted that the municipality must be guided "The publication must state the character of and controlled by the provisions found there the franchise or privilege purposed to be grantin. The first of these acts, commonly known

ed,

and if it be a street railroad, the

route to be traversed; that sealed bids therefor as the "Sale of Franchise Acts," was passed will be received up to a certain hour and day by the Legislature in 1893 (St. 1893, p. 288). named therein, and that the successful bidder It is entitled "An act providing for the sale and his assigns must, during the life of said of railroad and other franchises in municipal. (296) of the gross annual receipts of the person,

franchise, pay to the municipality two per cent. ities, and relative to granting of franchises,” partnership or corporation to whom the fran. and it provided for the public advertising of chise is awarded, arising from its use, operathe fact that an application for a franchise tion or possession. No percentage shall be paid had been made, and that the franchise must the franchise, but thereafter such percentage

for the first five years succeeding the date of be awarded to the highest bidder. This was shall be payable annually.” followed by the enactment of 1897 (St. 1897, Section 5. of said act provides: p. 135), entitled "An act providing for the

"Said advertisement shall also contain a statesale of street railroad and other franchises ment that the said franchise will be granted to in municipalities, and providing conditions the person, firm or corporation who shall make for the granting of such franchises by the leg- that at the time of the onening of said bids any

the highest cash bid therefor; provided only, islative or other governing bodies, and re-responsible firm or corporation present, or reppealing conflicting acts.” This act also pro- resented, may bid for said franchise or privivided for public advertising of the fact that lege a sum not less than ten per cent above the an application for a franchise had been made, made, may be raised ten per cent. by any other

highest sealed bid therefor, and said bid, 60 that no bids will be received of a single sum responsible bidder present, and said franchise or amount stated, but that all bids must be or privilege shall finally be struck off, sold and for the payment of a stated per cent. of the granted by said governing body to the highest

bidder therefor, in gold coin of the United States, gross annual rec

ts of the person to whom and said successful bidder shall be required to the franchise is awarded, arising from its deposit with said governing body, or such peruse, operation, or possession, but such per- son as it may direct, the full amount of his or centage shall in no case be less than 3 per after; and in case he or it shall fail so to do,

its said bid, within twenty-four hours therecent. per annum of such gross receipts. The then the said franchise or privilege shall be statute, in so far as it provided for offering granted to the next highest bidder therefor." lighting franchises for sale to the highest From the foregoing, it is quite apparent bidder, was declared in Pereria v. Wallace, that the consideration for the sale, as far as supra, to be unconstitutional, as conflicting it is to be determined by the action of the with said section 19, art. 11, of the Constitu- governing body of the municipality, is to be tion. The next act, and the one under which for a stated amount to be paid in cash imthe sale was made in the present instance, mediately. In other words, in case there was passed in 1901 (Stats. 1901, p. 265) and be competitive bids, the municipal adthorities is entitled “An act providing for the sale of have no discretion as to whom they shall sell street railroad and other franchises in munic- the franchise, or upon what basis. They ipalities, and providing conditions for the must sell—if they sell at all—for cash and

County, 111 Cal. 553, 44 Pac. 230. If there | The mistake, though, would not prevent ap be no competitive bids, however, or no cash pellant from taking advantage of its legal offer, they may grant to any applicant the rights when they were disclosed unless the franchise upon such reasonable regulations doctrine of estoppel could be successfully as they may prescribe, and upon the condi- invoked. But we can see no room for the tion provided by the statute that the applicant application of such principle. Respondent pay to the municipality a certain percentage cites, in this connection, such cases as May. of the gross proceeds arising from the busi. or, etc., of Borough of Rutherford v. Hudness of operating the franchise. The mu son River Traction Co., 73 N. J. Law, 227, nicipality has no contol over this percentage. 63 Atl. 84, wherein a street railroad franIt is not the subject of contract, but is fixed chise provided that the railroad company do at 2 per cent. by the law. The basis upon certain macadamizing, and it was contended which it is to be computed is equally clear. that the provision was ultra vires and void. It is to be taken from the gross proceeds Therein it was said : of the use and exercise of the franchise "But in our view it is not open to the traction which is granted by said municipality. This company to raise the question that the grant means, of course, from the proceeds of the of its local privileges and franchises was ultra

vires the municipal corporation, while at the franchise which is legally granted by the au

same time the company retains and enjoys those thorities. No percentage can be charged privileges and franchises. The plea of ultra against a franchise which already belongs to vires is not admitted in such circumstances, exthe applicant.

cept where it is practicable to restore the status

quo ante, and we therefore think the present It is quite plain though, that by said ordi- respondent is estopped from setting up that nance the city board of trustees attempted plea." to impose this percentage charge upon the

But herein the only privilege secured by applicant for the privilege of supplying elec. Prior through the action of the board of tric light as well as the electric power. But trustees was to operate the plant for the the charge for the power was in excess of

purpose of furnishing electric power, and apthe allowance provided by the law, and is pellant does not claim that therein was the therefore void to that extent.

act ultra vires. If such claim were made, it The fact is the sale of the franchise was is probable that it could not be maintained not made for cash at all. The record does by virtue of the principle of estoppel. The not even show that any bid was received doctrine, however, does not preclude the asfor the same. Prior was and had been for sertion of a right and privilege obtained years operating the plant, and there was from an entirely different source, nor does probably no disposition to exact of him any it affect contracts entered into beyond the thing more than the percentage provided by range of municipal authority. In City of the statute.

Arcata v. Green, 156 Cal. 759, 106 Pac. 86, To recapitulate: The board of trustees at

it was said: tempted to grant two franchises. One of

"A party contracting with a city regarding a these, however, already belonged to the gran- subject matter within the scope of the city's tee by virtue of the provision of the Consti- powers may, where he has received the benefit tution, and, therefore, as to it said ordinance of the contract, be precluded from asserting that

the contract was not, on the part of the city, was inoperative. The franchise which was executed in the manner required by law. The the subject of bargaining between Prior and doctrine, however, cannot be made to cover the municipality was not sold for cash, but contracts entirely beyond the range of the muwas transferred in consideration of the per

nicipal authority.” centage provided by law. It is unimportant See, also, Foxen v. City of Santa Barbara, that said percentage was recited in the ordi- 166 Cal. 77, 134 Pac. 1142; Town of St. nance, as this added nothing to what is fixed Helena v. Ewer, supra. by the statute. The case is exactly as We can see no merit in the last two conthough two separate ordinances had been tentions of respondent, and as to the first, passed, in one of which a franchise was the law has been construed in this state in granted to furnish electric light, and in the favor of appellant's claim. other, to supply electric power, and in each

The judgment should be reduced to $57.98, it was provided that the grantee should pay and as thus modified, it is affirmed, appellant 2 per cent. of the gross proceeds to the city. to recover its costs. Under the authorities, as we have seen, the attempted charge for the first would fail

We concur: CHIPMAN, P. J.; HART, J. and only the second could be collected. [2] As we have already intimated, Prior

On Petition for Rehearing. and the trustees no doubt believed that the town had the legal right to grant or with

PER CURIAM. For the first time on pebold the lighting franchise. The parties, in tition for rehearing our attention has been other words, were acting under a mutual called to the case of City of Hanford v. Hanmistake as to their legal rights in the prem- ford Gas & Power Co., 169 Cal. 749, 147 Pac. ises, and this accounts for the charge at- 969, L. R. A. 1915E, 165. It is claimed by tempted to be imposed upon the exercise and the respondent that this case is directly in operation of the electric light franchise. point and is at variance with the opinion

heretofore filed by this court in the case at

(35 Cal. App. 711) bar. There seems to be merit in the conten- REYNOLDS V. E. CLEMENS HORST CO. tion; and, in order that the important ques

(Civ. 1731.) tion herein involved may be further consid- (District Court of Appeal, Third District, Caliered, especially in the light of the said recent fornia. Dec. 28, 1917. On Rehearing. Jan. decision of the Supreme Court, the petition 28, 1918. Rehearing Denied by Supreme Court for rehearing is granted.

Feb. 25, 1918.)

1. MASTER AND SERVANT 281(71)-INJURY On Rehearing.

TO SERVANT--OBVIOUS PERIL-EVIDENCE.

In an action by a servant for injuries, due to PER CURIAM. A rehearing was granted her dress being caught by a revolving shaft in this case for the purpose of considering while she was working on a hop-picking mathe case of City of Hanford v. Hanford Gas, not voluntarily place herself in way of an ob

chine, held, under evidence, that plaintiff did etc., Co., 169 Cal. 749, 147 Pac. 969, L. R. vious and well-understood peril, so that she A. 1915E, 165, which was called to our at- could not recover. tention for the first time in the petition for 2. MASTER AND SERVANT C204(1)–ASSUMPa rehearing. We find nothing in said case

TION OF RISK-STATUTE. which, in our judgment, militates against p. 796), assumption of risk is no defense in an

Under Employers' Liability Act (St. 1911, the views expressed and the conclusion reach- action by a servant for injuries. ed in our former opinion. The question as 3. MASTER AND SERVANT C 281(1, 8) – CON. to the right of a municipality to exact from TRIBUTORY NEGLIGENCE – SUFFICIENCY OF lighting and other like public service corpo

EVIDENCE, rations the payment of certain sums for a to her dress being caught by a revolving shaft

In an action by a servant for injuries, due franchise to operate its business in munici- while she was at work on a hop-picking machine, palities was not raised, considered, or dis- evidence held to show that plaintiff did not volcussed in the Hanford Case, and it is there untarily select an unsafe place in which to fore no authority for the position that mu- her duties.

work, or adopt a dangerous method to discharge nicipalities may impose upon such corpora- 4. MASTER AND SERVANT 276(4)–CAUSE OF tions a charge upon gross receipts arising ACCIDENT-GUARDING SHAFT-EVIDENCE. from the use of gas or electricity for light In an action for injuries sustained by a ing purposes. The cases cited in the original servant when her dress caught in a repolving opinion Aled herein seem clearly enough to show that the accident would not have occur

shaft in a hop-picking machine evidence held to hold that no charge for the use of gas or red if the shaft had been suitably protected. electricity for lighting purposes may, under 5. MASTER AND SERVANT Om 278(13)-DUTY TO the terms of section 19 of article 11 of the PROTECT SHAFT-EVIDENCE. Constitution, as that section read when the In an action by a servant for injuries, due franchise here involved was granted, be ex evidence held to warrant the conclusion that de

to her dress being caught by a revolving shaft, acted from corporations furnishing the same fendant employer should have protected the in municipalities. Indeed, since the Consti- shaft. tution itself directly grants to public service 6. MASTER AND SERVANT 101, 102(10) corporations engaged in the generation and

DANGEROUS MACHINERY-DUTY TO GUARD.

That the servant knew that the shaft was manufacture and sale of electricity and gas unprotected would not affect the duty of the the right to enter the streets and other thor- master to properly guard the same; such fact oughfares of a city and use the same for the bearing only on questions of contributory neglilaying down of their pipes, etc., for the pur- gence and assumption of risk. pose of supplying gas and electricity to the 7. TRIAL O 260(8)—INSTRUCTIONS SUBSTAN

TIALLY GIVEN-REFUSAL. inhabitants of such city for lighting or il Refusal of instruction that, if a witness has luminating purposes, we cannot see how it willfully and knowingly testified falsely, you may or could consistently be held that the may disregard, etc., was not prejudicial, where right so granted may in any way be hamper-structions on credibility, that a witness false

court instructed, in addition to elaborate ined or impaired or qualified by any act of in one part of his testimony is to be distrusted such city; and certainly such might well be in others. held would be the effect of a ruling that 8. TRIAL CM 252(11)-INSTRUCTIONS-ASSUMP

TION NOT SUPPORTED BY EVIDENCE. the city may exact a charge from such cor

Where there was no room for an inference porations for supplying gas or electricity, or that plaintiff servant, at the time of the acciboth, to the inhabitants of such city for use dent, was at a place where she should not have for illuminating purposes.

been, an instruction based upon an assumption Therefore after a full consideration of the that such was the case was properly refused. whole case, as it is submitted here, the Jus

On Rehearing. tices of this court are of the opinion that 9. MASTER AND SERVANT OO 349—INJURY TO the conclusion heretofore arrived at by this

SERVANT-LAW APPLICABLE.

Workmen's Compensation Act 1913 (St. court, as expressed in the former opinion 1913, pp. 279, 320) $ 91, providing that the filed herein, is correct, and we, therefore, ap- compensation provisions shall not apply to inprove and adopt the opinion prepared by Jus- juries sustained prior to the taking effect of the tice BURNETT, and which was handed down act, continues existing laws in force as to inju

ries sustained prior to the date the act became and filed herein.

effective.

10. CONSTITUTIONAL LAW 106 MASTER That plaintiff's version of the accident

AND SERVANT 347 VESTED RIGHTS
WORKMEN'S COMPENSATION.

may be understood, we quote from her tesPlaintiff employé's right to compensation timony as follows: under Employers' Liability Act of 1911 for in "I was standing upon that platform that juries was a vested right, which could not be

comes along there in front of that grate, and taken away by a repeal of such act, which con- my job was to pick the sticks and leaves off stituted a part of plaintiff's contract with her this grate and throw them behind me on the employer.

floor, and the hops was to be left on the grate, Appeal from Superior Court, Tehama and that was my orders, and this stick was fur

nished to us to poke the hops down when they County; John F. Ellison, Judge.

come on the machinery, and if the hops caught Action by Susan M. Reynolds against the above the machine we were to take the stick and E. Clemens Horst Company. Judgment for shake it along until the hops went through, plaintiff, and defendant appeals. Affirmed. and we was to walk up and down on this thing

and pick these hops out. We were not pickers, H. P. Andrews and W. A. Fish, both of but we was to walk backwards and forwards Red Bluff, and Edward O. Harrison and and see the hops went through, and if any stems

or sticks, to throw them off on the floor, and Maurice E. Harrison, both of San Francisco, when we got that done, to go back on the other for appellant. Frank Freeman, of Willows, end and clean it out the same way, and so I and James T. Matlock, of Red Bluff, for re was walking from this end to this end, and up spondent.

in the corner sometimes they would fall in bunches as big as that (illustrating), and there

was a big, bunch sticking there that didn't fall BURNETT, J. Plaintiff had the verdict in down, and so I took this stick here and was an action for damages resulting from per-reaching up like that to pull the hops down, and sonal injuries. The accident was caused by when the bunch fell in front of me on the grate,

when I came back from pulling the hops down, her dress being caught by a revolving iron I felt something pull on the left-hand side of shaft while she was engaged at work on a my dress, and of course you would always think hop-picking machine, and she was seriously something, and I thought somebody went along

there and touched me, and I never thought of hurt. We attach hereto a diagram to illus- the machinery I was tangled up in, and when trate the situation and to make clearer the I felt that, I turned to see who was behind testimony to which we shall refer. “A” rep- me, and just at that I noticed my dress was on resents the platform which plaintiff

the shaft, and I didn't think then or realize my stood, "B" the shaft on which her dress was it pull I looked around and felt myself going,

dress was tangled in the shaft, and just as I felt caught, “C” the south post, close to or and put my hands up, thinking I would grab against which she stood when her clothing something to save myself falling, and I was came into contact with the shaft, •:D" the pitched up in the air and came down on the

foor as hard as I could come.” grate, with its iron bars, on which the hops fell from above, “E” the post at the north

She testified that she had seen this shaft end of the platform and distant from "C" and others, but had no idea that she could nearly eight feet, "F" the brace to post "C." ever get connected with it in any way; that The platform was 20 inches, and the shaft she never thought about it, it had never en2934 inches, from the floor. The south post, tered her head that there was any danger *C,” was 542 inches thick, the shaft was 4 there; that she thought the foreman who inches distant from it, and it was 7 inches put a lady to work there would not put her to said post from the bottom of the most where she could get connected with any southern iron rod in said grate.

machinery; that anybody could the

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shaft. There was nothing to prevent her, would probably be more reason for the confrom seeing it when she was on the floor, tention that appellant was not guilty of neg. but, when she was working on the platform, ligence in leaving the shaft exposed than for she could not see it unless she leaned over, the position upon which so much emphasis but she could not do that. Being a short is laid that the situation presented "an obvi. woman, she had to come to the end of the ous and well-understood peril.” However, as platform to reach up and pull the hops down, to this, we are satisfied that there was ground and sometimes had to “reach quite a bit to for the holding that appellant was derelict take them down." And in answer to the in not more carefully guarding against such question by appellant's counsel, “Will you contingency as was developed. In this conexplain to me why it was necessary for you nection we may state that the probability of to go so close to that revolving shaft at an accident was somewhat increased by the the extreme south end of that bin that your irregularities on the surface of said shaft, it clothing could in any way become caught in having been "chewed up with a Stilson that revolving shaft?" she replied:

wrench," as stated by one of the witnesses. "When I was just as far as I could get to the But if we concede that, to one familiar end of these grates here, and had that stick, with machinery and the laws appertaining couldn't possibly reach this place up here; had tried it, and even had to get on my tiptoes to mechanics, the situation might appear obseveral times to hammer at a buncb of stuff viously dangerous, it does not follow that up there to compel it to come down. I didn't plaintiff understood, comprehended, and apknow the distance from there up there, becanse preciated the peril. It is a reasonable conI never measured it; but when I was standing as near as I could get to this end, I have often clusion from her evidence that her lack of stuck my shoulder under that thing-that is how understanding of whatever peril existed was high it was to me--I have often stuck my shoul- such as to relieve her of the charge of conder under that thing there, and reached this way (indicating) to get those things down, and tributory negligence in continuing her emwhen I would do that, sometimes I would have ployment in such close proximity to the to reach four or five times, and hammer at it shaft; for at the time plaintiff was injured, to get it started down. That is the reason why in order to charge her with culpable conduct I had to go up so close to that end." [1] She also testified that she was not law, it was necessary for her, not only to

according to the requirement of the existing warned of any danger, and that she had to know the unsafe condition of the machine, work rapidly at her task to keep the grate but that she consented to work in the place clear. We do not think it can be said that re- of danger after full comprehension of the spondent "voluntarily placed herself in the risk which she thereby incurred. Jacobson way of an obvious and well-understood per. v. Oakland M. & P.,Co., 161 Cal. 425, 119 Pac. 11," and must therefore suffer the conse- 653, Ann. Cas. 1913B, 1194. quences of her conduct.

The case

[2] Again, it is quite apparent that the quite different from those like Brett v. Frank

position which she occupied while employed Co., 153 Cal. 267, 91 Pac. 1051, Ergo v. Mer

has an important bearing upon the question ced F. G. & E. Co., 161 Cal. 334, 119 Pac. 101, 41 L. R. A. (N. S.) 79, Bressette v. Stone, 162 of the imminence of the peril. It was maniCal. 74, 121 Pac. 312, and Andrews v. Valley festly less dangerous than if she had been Ice Co., 167 Cal. 11, 138 Pac. 699. The sit- working nearer or over the shaft. Consider. uation here is more like that presented in ing her position on the platform and the in. Davis v. Pacific Power Co., 107 Cal. 563, 40 nocent appearance of the shaft, the danger Pac. 950, 48 Am. St. Rep. 156, and kindred should be denominated a hidden rather than

It may indeed be said that the dan- an obvious one. But, after all, this contenger here was not so obvious as in the Davis tion of appellant resolves itself into the legal Case. The shaft that caught plaintiff's proposition that she assumed the risk of a clothing was not quite an inch and a half in known hazard; but this fact, as pointed out diameter, and it projected about six inches in Crabbe v. Mammouth Channel Gold Mining be the easterly side of the post "C.” It Co., 168 Cal. 500, 143 Pac. 714, and other caswas revolving rather slowly, and it did not es, affords no defense under the Employers' present a necessarily dangerous aspect. In Liability Act (St. 1911, p. 796) in effect at deed, it is quite likely that, if it had been a

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the time of the accident. Upon the theory man whose clothing was brought into con- that there was an obvious peril, the other imtact with the shaft, no injury would have portant consideration is not whether she as. been produced. And it is safe to say that sumed the risk, but whether she was charge. plaintiff might have been placed in a similar able with negligence that contributed to her position many times without suffering any injury, and this depends upon what she was inconvenience. It is to be remembered that doing at the time. To determine this ques what is called the shaft, as far as the ex- tion, we must consider the character of the posed portion is concerned, was a mere rod danger and other circumstances as we shall exhibiting but small centripetal force, and presently see. not presenting any complication by reason of We can see no merit in the point that she cogs or a belt or other mechanical contriv- "voluntarily chose an unusual and more dan

The chances were rather against the gerous method to perform her duties when

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