This is a bill brought by the appellee, a California corporation, to restrain the city of Pomona from removing the appellee's poles and wires from the streets of the city, and from preventing the appellee's placing further poles and wires in the streets. The circuit court dismissed the bill (164 Fed. 561), but the decree was reversed and an injunction granted by the circuit court of appeals. 97 C. C. A. 251, 172 Fed. 829. Two of the grounds originally relied upon were that the appellee, being a telegraph as well as a telephone company, had rights under the act of Congress of July 24, 1866, chap. 230, 14 Stat. at L. 221 (Rev. Stat. §§ 5263 et seq. U.S.C.omp. Stat. 1901, p. 3579), that were infringed, and that the conduct of the city had given rise to a contract. These are no longer pressed, but they warranted taking the case to the circuit court of appeals. Spreckels Sugar Ref. Co. v. McClain, 192 U.S. 397, 407, 48 L. ed. 496, 499, 24 Sup. Ct. Rep. 376. The remaining ground is that the Constitution of California, as amended in 1911, or the statutes of the state, contained a grant with which the Constitution of the United States does not permit the city to interfere. This is the only argument pressed here. Unless the appellee got a grant from one of these two sources, it has no right to occupy the streets.
The claim based upon the amendment to article 11, § 19, of the Constitution of the state, October 10, 1911, does not impress us. Before that date the article provided that in cities having no public works for artificial light, etc. individuals or corporations of the state, duly authorized, should have the privilege of using the streets, etc., for the purpose, upon the condition that the municipal government should have the right to regulate the charges. By the amendment 'any municipal corporation may establish and operate public works for . . . telephone service,' either by construction or by purchase. It then goes on: 'Persons or corporations may establish and operate works for supplying the inhabitants with such service upon such conditions and under such regulations as the municipality may prescribe under its organic law, on condition that the municipal government shall have the right to regulate the charges therefore.' We agree with the appellants that the amendment seems intended as a step in the direction of municipal ownership or control. The words, 'upon such conditions,' ect., are not to be confined to police powers, which are conferred by § 11 of the same article, but are of general import. If the municipal corporation does not see fit to establish the public works itself, it may let others do it; but its power to impose conditions excludes the notion that the Constitution alone is a grant to others of a right to occupy the streets without its consent.
The claim founded upon the statutes seems to us stronger. By § 536 of the Civil Code, 'Telegraph . . . corporations may construct lines of telegraph . . . along and upon any public road or highway . . . and may erect poles . . . in such manner and at such points as not to incommode the public use of the road.' This is treated by the supreme court of California as a grant when acted upon. Western U. Teleg. Co. v. Hopkins, 160 Cal. 106, 116 Pac. 557. But as the words 'telegraph corporations' have been construed not to include telephone corporations (Sunset Teleph. & Teleg. Co. v. Pasadena, --Cal. --, 118 Pac. 796),-a construction that we know no sufficient reason for not following (Yazoo & M. Valley R. Co. v. Adams, 181 U.S. 580, 45 L. ed. 1011, 21 Sup. Ct. Rep. 729; Richmond v. Southern Bell Teleph. & Teleg. Co. 174 U.S. 761, 43 L. ed. 1162, 19 Sup. Ct. Rep. 778),-the section until amended did the appellee no good. On March 20, 1905, however, the section was amended so as to include telephone corporations, so that, if that were all, the case of the appellee would be clear, the city of Pomona not having been organized under provisions of the Constitution that withdrew certain cities from the operation of general laws. See Ex parte Helm, 143 Cal. 553, 77 Pac. 453; Sunet Teleph & Teleg. Co. v. Pasadena, --Cal. --, 118 Pac. 796, 803.