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170 PACIFIC REPORTER

Ewer and the town cannot be maintained. The
facts alleged show beyond dispute that in deal-
ing with the public,
was acting in its legislative capacity, and that
the municipality
its action is not referable, for its support, to
the power or making contracts.
tiff cannot avoid the restraining effect of the
# * Plain-
Constitution by attempting to convert its legis-
lative acts into the contracts.
not escape the fact that the grant was made
We can
on condition that the grantee pay for the privi-
lege granted-a condition, as we have seen, which
is beyond the power of the municipality to im-

pose."

or other governing bodies, and repealing con(Cal flicting acts."

Section 1 of said act is as follows:

therein of any franchise for laying water It is to be seen that no mention is made pipes or laying or erecting pipes or structures for furnishing light. This, no doubt, was in consequence of the decision in the Pereria Case, supra.

ing of the application, and in section 3 thereSaid act provides also for public advertisof is this language:

the franchise or privilege purposed to be grant"The publication must state the character of ed, will be received up to a certain hour and day * and if it be a street railroad, the route to be traversed; that sealed bids therefor named therein, and that the successful bidder and his assigns must, during the life of said franchise, pay to the municipality two per cent. partnership or corporation to whom the fran(2%) of the gross annual receipts of the person, chise is awarded, arising from its use, operafor the first five years succeeding the date of the franchise, but thereafter such percentage tion or possession. No percentage shall be paid shall be payable annually."

"Every franchise or privilege to erect or lay operate street railroads upon any public street telegraph or telephone wires, to construct or or highway, to lay gas pipes for the purpose of or wires for transmitting electric heat and powcarrying gas for heat and power, to erect poles er along or upon any public street or highway, hereafter proposed to be granted by boards of or to exercise any other privilege whatever supervisors, boards of trustees or common counBut it is not disputed that by said ordi- state, except steam railroads and except telecils or other governing or other legislative bodies of any city and county, city or town within this nauce 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, tain poles and wires for the purpose of fur-conditions in this act provided, and not otherchutes or wharves shall be granted upon the nishing electric power, and that the right wise." existed to charge for this privilege as provided by the statute in force at the time of said grant, and the inquiry then is whether any part of the receipts from the exercise of the lighting franchise may be included in the consideration for the grant of this power privilege. The statute itself provides the terms and conditions upon which said franchises may be granted, and it will not be disputed that the municipality must be guided and controlled by the provisions found therein. The first of these acts, commonly known as the "Sale of Franchise Acts," was passed by the Legislature in 1893 (St. 1893, p. 288). It is entitled "An act providing for the sale of railroad and other franchises in municipalities, and relative to granting of franchises," and it provided for the public advertising of the fact that an application for a franchise had been made, and that the franchise must be awarded to the highest bidder. This was followed by the enactment of 1897 (St. 1897, p. 135), entitled "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." This act also provided for public advertising of the fact that an application for a franchise had been made, that no bids will be received of a single sum or amount stated, but that all bids must be for the payment of a stated per cent. of the gross annual receipts of the person to whom the franchise is awarded, arising from its use, operation, or possession, but such percentage shall in no case be less than 3 per cent. per annum of such gross receipts. The statute, in so far as it provided for offering lighting franchises for sale to the highest bidder, was declared in Pereria v. Wallace, that the consideration for the sale, as far as From the foregoing, it is quite apparent 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 authorities 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 granting of such franchises by legislative to the highest bidder. Thompson v. Alameda

Section 5 of said act provides:

ment that the said franchise will be granted to "Said advertisement shall also contain a statethe person, firm or corporation who shall make that at the time of the opening of said bids any responsible firm or corporation present, or repthe highest cash bid therefor; provided only, resented, may bid for said franchise or privilege a sum not less than ten per cent. above the made, may be raised ten per cent. by any other responsible bidder present, and said franchise highest sealed bid therefor, and said bid, so or privilege shall finally be struck off, sold and granted by said governing body to the highest and said successful bidder shall be required to deposit with said governing body, or such perbidder therefor, in gold coin of the United States, son as it may direct, the full amount of his or after; and in case he or it shall fail so to do, then the said franchise or privilege shall be its said bid, within twenty-four hours theregranted to the next highest bidder therefor."

County, 111 Cal. 553, 44 Pac. 230. If there | The mistake, though, would not prevent apbe 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 Mayof the gross proceeds arising from the busi-or, etc., of Borough of Rutherford v. Hudness of operating the franchise. The mu- Ison 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 at 2 per cent. by the law. The basis upon which it is to be computed is equally clear. It is to be taken from the gross proceeds of the use and exercise of the franchise which is granted by said municipality. This means, of course, from the proceeds of the franchise which is legally granted by the authorities. No percentage can be charged against a franchise which already belongs to the applicant.

It is quite plain though, that by said ordinance the city board of trustees attempted to impose this percentage charge upon the applicant for the privilege of supplying electric light as well as the electric power. But the charge for the power was in excess of the allowance provided by the law, and is

therefore void to that extent.

The fact is the sale of the franchise was not made for cash at all. The record does not even show that any bid was received for the same. Prior was and had been for years operating the plant, and there was probably no disposition to exact of him any thing more than the percentage provided by

the statute.

To recapitulate: The board of trustees attempted to grant two franchises. One of these, however, already belonged to the grantee by virtue of the provision of the Constitution, and, therefore, as to it said ordinance was inoperative. The franchise which was the subject of bargaining between Prior and the municipality was not sold for cash, but was transferred in consideration of the percentage provided by law. It is unimportant that said percentage was recited in the ordinance, as this added nothing to what is fixed by the statute. The case is exactly as though two separate ordinances had been passed, in one of which a franchise was granted to furnish electric light, and in the other, to supply electric power, and in each it was provided that the grantee should pay 2 per cent. of the gross proceeds to the city. Under the authorities, as we have seen, the attempted charge for the first would fail and only the second could be collected.

[2] As we have already intimated, Prior and the trustees no doubt believed that the town had the legal right to grant or withhold the lighting franchise. The parties, in other words, were acting under a mutual mistake as to their legal rights in the premises, and this accounts for the charge attempted to be imposed upon the exercise and operation of the electric light franchise.

chise provided that the railroad company do certain macadamizing, and it was contended that the provision was ultra vires and void. Therein it was said:

"But in our view it is not open to the traction company to raise the question that the grant of its local privileges and franchises was ultra vires the municipal corporation, while at the same time the company retains and enjoys those privileges and franchises. The plea of ultra vires is not admitted in such circumstances, except where it is practicable to restore the status quo ante, and we therefore think the present respondent is estopped from setting up that plea."

But herein the only privilege secured by Prior through the action of the board of trustees was to operate the plant for the purpose of furnishing electric power, and appellant does not claim that therein was the act ultra vires. If such claim were made, it is probable that it could not be maintained by virtue of the principle of estoppel. The doctrine, however, does not preclude the assertion of a right and privilege obtained from an entirely different source, nor does it affect contracts entered into beyond the range of municipal authority. In City of Arcata v. Green, 156 Cal. 759, 106 Pac. 86, it was said:

"A party contracting with a city regarding a subject-matter within the scope of the city's powers may, where he has received the benefit of the contract, be precluded from asserting that the contract was not, on the part of the city, executed in the manner required by law. The doctrine, however, cannot be made to cover contracts entirely beyond the range of the municipal authority."

See, also, Foxen v. City of Santa Barbara, 166 Cal. 77, 134 Pac. 1142; Town of St. Helena v. Ewer, supra.

We can see no merit in the last two contentions of respondent, and as to the first, the law has been construed in this state in favor of appellant's claim.

The judgment should be reduced to $57.98, and as thus modified, it is affirmed, appellant to recover its costs.

We concur: CHIPMAN, P. J.; HART, J.

On Petition for Rehearing.

PER CURIAM. For the first time on petition for rehearing our attention has been called to the case of City of Hanford v. Hanford Gas & Power Co., 169 Cal. 749, 147 Pac. 969, L. R. A. 1915E, 165. It is claimed by the respondent that this case is directly in point and is at variance with the opinion

170 PACIFIC REPORTER

(Cal.

(35 Cal. App. 711)

heretofore filed by this court in the case at
bar. There seems to be merit in the conten- REYNOLDS v. E. CLEMENS HORST CO.
tion; and, in order that the important ques-

tion herein involved may be further consid

ered, especially in the light of the said recent
decision of the Supreme Court, the petition
for rehearing is granted.

On Rehearing.

PER CURIAM.

(Civ. 1731.)

(District Court of Appeal, Third District, Cali

fornia. Dec. 28, 1917.

28, 1918. Rehearing Denied by Supreme Court On Rehearing, Jan. Feb. 25, 1918.)

1. MASTER AND SERVANT 281(7)-INJURY TO SERVANT-OBVIOUS PERIL EVIDENCE. her dress being caught by a revolving shaft In an action by a servant for injuries, due to while she was working on a hop-picking manot voluntarily place herself in way of an obvious and well-understood peril, so that she chine, held, under evidence, that plaintiff did could not recover.

2. MASTER AND SERVANT 204(1)—ASSUMPTION OF RISK-STATUTE.

p. 796), assumption of risk is no defense in an
Under Employers' Liability Act (St. 1911.
action by a servant for injuries.

3. MASTER AND SERVANT 281(1, 8) — CON-
TRIBUTORY NEGLIGENCE
EVIDENCE.
SUFFICIENCY OF

to her dress being caught by a revolving shaft
while she was at work on a hop-picking machine,
In an action by a servant for injuries, due
evidence held to show that plaintiff did not vol-
untarily select an unsafe place in which to
her duties.
work, or adopt a dangerous method to discharge
4. MASTER AND SERVANT ~276(4)—CauSE OF
ACCIDENT-GUARDING SHAFT EVIDENCE.

servant when her dress caught in a revolving
In an action for injuries sustained by a
show that the accident would not have occur-
red if the shaft had been suitably protected.
shaft in a hop-picking machine evidence held to
5. MASTER AND SERVANT 278(13)-DUTY TO
PROTECT SHAFT EVIDENCE.

A rehearing was granted in this case for the purpose of considering the case of City of Hanford v. Hanford Gas, etc., Co., 169 Cal. 749, 147 Pac. 969, L. R. A. 1915E, 165, which was called to our attention for the first time in the petition for a rehearing. We find nothing in said case which, in our judgment, militates against the views expressed and the conclusion reached in our former opinion. The question as to the right of a municipality to exact from lighting and other like public service corporations the payment of certain sums for a franchise to operate its business in municipalities was not raised, considered, or discussed in the Hanford Case, and it is therefore no authority for the position that municipalities may impose upon such corporations a charge upon gross receipts arising from the use of gas or electricity for lighting purposes. The cases cited in the original opinion filed herein seem clearly enough to hold that no charge for the use of gas or electricity for lighting purposes may, under the terms of section 19 of article 11 of the Constitution, as that section read when the franchise here involved was granted, be ex-evidence held to warrant the conclusion that deIn an action by a servant for injuries, due 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 Constitution itself directly grants to public service corporations engaged in the generation and manufacture and sale of electricity and gas the right to enter the streets and other thoroughfares of a city and use the same for the laying down of their pipes, etc., for the pur-gence and assumption of risk. pose of supplying gas and electricity to the inhabitants of such city for lighting or illuminating purposes, we cannot see how it may or could consistently be held that the right so granted may in any way be hampered or impaired or qualified by any act of such city; and certainly such might well be held would be the effect of a ruling that the city may exact a charge from such corporations for supplying gas or electricity, or both, to the inhabitants of such city for use for illuminating purposes.

Therefore after a full consideration of the whole case, as it is submitted here, the justices of this court are of the opinion that the conclusion heretofore arrived at by this court, as expressed in the former opinion filed herein, is correct, and we, therefore, approve and adopt the opinion prepared by Justice BURNETT, and which was handed down and filed herein.

shaft.

6. MASTER AND SERVANT 101, 102(10) unprotected would not affect the duty of the DANGEROUS MACHINERY-DUTY TO GUARD. That the servant knew that the shaft was master to properly guard the same; such fact bearing only on questions of contributory negli

7. TRIAL 260(8)-INSTRUCTIONS SUBSTANTIALLY GIVEN REFUSAL.

willfully and knowingly testified falsely, you Refusal of instruction that, if a witness has may disregard, etc., was not prejudicial, where court instructed, in addition to elaborate inin one part of his testimony is to be distrusted structions on credibility, that a witness false in others.

8. TRIAL

252(11)-INSTRUCTIONS-ASSUMPTION NOT SUPPORTED BY EVIDENCE.

that plaintiff servant, at the time of the acci-
Where there was no room for an inference
dent, was at a place where she should not have
that such was the case was properly refused.
been, an instruction based upon an assumption
On Rehearing.

9. MASTER AND SERVANT 349-INJURY TO
SERVANT-LAW APPLICABLE.

1913, pp. 279, 320) § 91, providing that the
Workmen's Compensation Act 1913 (St.
compensation provisions shall not apply to in-
juries sustained prior to the taking effect of the
act, continues existing laws in force as to inju-
ries sustained prior to the date the act became
effective.

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10. CONSTITUTIONAL LAW 106 AND SERVANT 347 WORKMEN'S COMPENSATION.

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Plaintiff employé's right to compensation under Employers' Liability Act of 1911 for injuries was a vested right, which could not be taken away by a repeal of such act, which constituted a part of plaintiff's contract with her employer.

Appeal from Superior Court, Tehama County; John F. Ellison, Judge.

Action by Susan M. Reynolds against the E. Clemens Horst Company. Judgment for plaintiff, and defendant appeals. Affirmed. H. P. Andrews and W. A. Fish, both of Red Bluff, and Edward C. Harrison and Maurice E. Harrison, both of San Francisco, for appellant. Frank Freeman, of Willows, and James T. Matlock, of Red Bluff, for respondent.

That plaintiff's version of the accident may be understood, we quote from her testimony as follows:

"I was standing upon that platform that comes along there in front of that grate, and this grate and throw them behind me on the my job was to pick the sticks and leaves off floor, and the hops was to be left on the grate, and that was my orders, and this stick was furnished to us to poke the hops down when they come on the machinery, and if the hops caught above the machine we were to take the stick and shake it along until the hops went through, and we was to walk up and down on this thing and pick these hops out. We were not pickers, but we was to walk backwards and forwards and see the hops went through, and if any stems when we got that done, to go back on the other or sticks, to throw them off on the floor, and end and clean it out the same way, and so I was walking from this end to this end, and up 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 her dress being caught by a revolving iron shaft while she was engaged at work on a hop-picking machine, and she was seriously hurt. We attach hereto a diagram to illustrate the situation and to make clearer the testimony to which we shall refer. "A" represents the platform on which plaintiff stood, "B" the shaft on which her dress was caught, "C" the south post, close to or against which she stood when her clothing came into contact with the shaft, "D" the grate, with its iron bars, on which the hops fell from above, "E" the post at the north end of the platform and distant from "C" nearly eight feet, "F" the brace to post "C." The platform was 20 inches, and the shaft 294 inches, from the floor. The south post, 'C," was 51⁄2 inches thick, the shaft was 4 inches distant from it, and it was 7 inches to said post from the bottom of the most southern iron rod in said grate.

when the bunch fell in front of me on the grate, when I came back from pulling the hops down, I felt something pull on the left-hand side of my dress, and of course you would always think something, and I thought somebody went along the machinery I was tangled up in, and when there and touched me, and I never thought of I felt that, I turned to see who was behind me, and just at that I noticed my dress was on the shaft, and I didn't think then or realize my dress was tangled in the shaft, and just as I felt it pull I looked around and felt myself going, and put my hands up, thinking I would grab something to save myself falling, and I was pitched up in the air and came down on the floor as hard as I could come.'

She testified that she had seen this shaft and others, but had no idea that she could ever get connected with it in any way; that she never thought about it, it had never entered her head that there was any danger there; that she thought the foreman who put a lady to work there would not put her where she could get connected with any machinery; that anybody could see 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 negbut, when she was working on the platform,ligence in leaving the shaft exposed than for she could not see it unless she leaned over, but she could not do that. Being a short woman, she had to come to the end of the platform to reach up and pull the hops down, and sometimes had to "reach quite a bit to take them down." And in answer to the question by appellant's counsel, "Will you explain to me why it was necessary for you to go so close to that revolving shaft at the extreme south end of that bin that your clothing could in any way become caught in that revolving shaft?" she replied:

"When I was just as far as I could get to the end of these grates here, and had that stick, I couldn't possibly reach this place up here; I had tried it, and even had to get on my tiptoes several times to hammer at a bunch of stuff up there to compel it to come down. I didn't know the distance from there up there, because I never measured it; but when I was standing as near as I could get to this end, I have often stuck my shoulder under that thing-that is how high it was to me-I have often stuck my shoulder under that thing there, and reached this way (indicating) to get those things down, and when I would do that, sometimes I would have to reach four or five times, and hammer at it to get it started down. That is the reason why I had to go up so close to that end."

[1] She also testified that she was not warned of any danger, and that she had to work rapidly at her task to keep the grate clear. We do not think it can be said that respondent "voluntarily placed herself in the way of an obvious and well-understood peril," and must therefore suffer the consequences of her conduct. The case seems quite different from those like Brett v. Frank

Co., 153 Cal. 267, 94 Pac. 1051, Ergo v. Merced F. G. & E. Co., 161 Cal. 334, 119 Pac. 101, 41 L. R. A. (N. S.) 79, Bressette v. Stone, 162

the position upon which so much emphasis is laid that the situation presented “an obvious and well-understood peril." However, as to this, we are satisfied that there was ground for the holding that appellant was derelict in not more carefully guarding against such contingency as was developed. In this connection we may state that the probability of an accident was somewhat increased by the irregularities on the surface of said shaft, it having been "chewed up with a Stilson wrench," as stated by one of the witnesses.

But if we concede that, to one familiar with machinery and the laws appertaining to mechanics, the situation might appear obviously dangerous, it does not follow that plaintiff understood, comprehended, and appreciated the peril. It is a reasonable conclusion from her evidence that her lack of understanding of whatever peril existed was such as to relieve her of the charge of contributory negligence in continuing her employment in such close proximity to the shaft; for at the time plaintiff was injured, in order to charge her with culpable conduct according to the requirement of the existing law, it was necessary for her, not only to know the unsafe condition of the machine, but that she consented to work in the place of danger after full comprehension of the risk which she thereby incurred. Jacobson v. Oakland M. & P.,Co., 161 Cal. 425, 119 Pac. 653, Ann. Cas. 1913B, 1194.

ing her position on the platform and the innocent appearance of the shaft, the danger should be denominated a hidden rather than an obvious one.

[2] Again, it is quite apparent that the position which she occupied while employed of the imminence of the peril. It was manihas an important bearing upon the question Cal. 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. Consideruation here is more like that presented in Davis v. Pacific Power Co., 107 Cal. 563, 40 Pac. 950, 48 Am. St. Rep. 156, and kindred cases. It may indeed be said that the danger here was not so obvious as in the Davis Case. The shaft that caught plaintiff's clothing was not quite an inch and a half in diameter, and it projected about six inches beyond the easterly side of the post "C." It was revolving rather slowly, and it did not present a necessarily dangerous aspect. Indeed, it is quite likely that, if it had been a man whose clothing was brought into contact with the shaft, no injury would have been produced. And it is safe to say that plaintiff might have been placed in a similar position many times without suffering any inconvenience. It is to be remembered that 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 cogs or a belt or other mechanical contrivance. The chances were rather against the

But, after all, this contention of appellant resolves itself into the legal proposition that she assumed the risk of a known hazard; but this fact, as pointed out in Crabbe v. Mammouth Channel Gold Mining Co., 168 Cal. 500, 143 Pac. 714, and other cases, affords no defense under the Employers' Liability Act (St. 1911, p. 796) in effect at the time of the accident. Upon the theory that there was an obvious peril, the other important consideration is not whether she assumed the risk, but whether she was chargeable with negligence that contributed to her injury, and this depends upon what she was doing at the time. To determine this ques

We can see no merit in the point that she "voluntarily chose an unusual and more dangerous method to perform her duties when

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