In 1923 the legislature passed an act purporting to grant “to every municipal corporation of the State of California the right to construct, operate and maintain water and gas pipes, mains and conduits, electric light and electric power lines, telephone and telegraph lines, sewers and sewer mains, all with their necessary appurtenances, across, along, in, under, over or upon any road, street, alley, avenne or highway, and across, under or over any railway, canal, ditch or flume which the route of such work intersects, crosses or runs along, in such a manner as to afford security for life and property”, it "being provided in the act that the street or highway shall be restored as nearly as possible to its former state and such use located so as to interfere as little as possible with other uses and it being further provided “that before any such municipal corporation shall use any street, alley, avenue or highway within any other municipal corporation, the municipal corporation proposing to use such street . . . shall request the municipal corporation in which such street ... is situated to agree with said municipal corporation proposing to make such use, upon the terms and conditions to which such use shall be subject and the location thereof, and if said two municipal corporations are unable to agree on such terms and conditions and location within three months thereafter, then the municipal corporation proposing to use such street . . . may bring an action in the superior court of the county in which the same is situated against such other municipal corporation to have such terms and conditions and location determined, and in such action such superior court may determine and adjudicate the terms and conditions to which such use of the said street, avenue, alley or highway shall be subject, and the location thereof, and upon the making of the final judgment in such action the municipal corporation desiring so to do may enter and use the street, alley, avenue or highway upon the terms and conditions and at the location specified in such judgment”. (Deering’s General Laws, 1923, p. 1992; Stats. 1923, p. 147.) Pursuant to this act the plaintiffs commenced an action for the purpose of securing a judgment authorizing the use of certain streets in the defendant city to erect and maintain an electric transmission line and adjudicating the terms and conditions to which the use would be subject and the location thereof. It was alleged that the request had been made of the defendant city and that it had refused to agree; and that the plaintiff city had purchased certain land adjoining the streets which it proposed to use and cross. A demurrer to the complaint was interposed and sustained without leave to amend. From the judgment of dismissal the plaintiffs prosecute this appeal.

The respondent argues that the act here in question is unconstitutional because it attempts to confer upon the courts a legislative function and also because it is special legislation, and to the first of these questions we now turn our attention.

It is suggested in the brief of appellants that the tendency of legislation- in recent years, with the approval of the courts, has been to break away from the theory of three separate and independent departments of government. That there has been such a tendency in legislation cannot be denied, but that it has met with approval by the courts to any appreciable degree must be denied. The very fact that an effort, probably unconscious, is being made to break away from a tripartite system of government, instead of inducing the courts to relax their vigilance, ought rather to render them the more alert to the danger of infringing those constitutional limitations, under and by which the liberties of the people are preserved, and under the beneficent influence of which our nation has grown from a mere infant to one of the giant countries of the world. Unoppressed by unrestrained power gathered into the hands of one man' or set of men the people have bathed in the sunshine of contentment, happiness and unparalleled prosperity. Reason dictates that if we are to continue to go forward, we should pay strict heed to those fundamentals of government which have served us in the past, and not be led astray by the glamour of an illusion, misnamed progress. We ought to be equally alert to detect an attempt to confer legislative authority upon judicial bodies and to resist the legislative interference with judicial functions. We agree with those authorities which declare that to define the extent of judicial functions is a thing not free from difficulty (City of Zanesville v. Zanesville Tel. & Tel. Co., 64 Ohio St. 67 [ 83 Am. St. Rep. 725 , 52 L. R. A. 150, 59 N. E. 781 , at 783, 784]), but it is indisputably true that there exists certain well-known principles and tests by which it may be determined in a given instance whether a power be judicial or legislative. In general, judicial authority is exercised for the purpose of determining the rights or liabilities of parties according to law, with respect to transactions already had between them, while legislative authority is made use of for the purpose of announcing the law applicable in future cases. With some exceptions the judicial function is to find facts and apply rules of law thereto for the purpose of settling a dispute or contest between parties concerning their rights. (People v. Oakland Board of Education, 54 Cal. 375 ; Quinchard v. Board of Trustees, 113 Cal. 664 [ 45 Pac. 856 ].) There can be no doubt but that the legislature in this instance conferred upon appellant municipality (assuming the constitutionality of the statute) the right to erect and maintain the proposed electric transmission line. The courts have not and should have no voice in such a grant. It is further alleged that more than three months prior to the filing of the action the appellant municipality proposed to the respondent city the terms and conditions of the use of the streets in question and submitted an agreement therefor, but that the respondent city failed and refused to accede thereto. Here, then, is a contest revolving around certain asserted rights of the parties, and arising by virtue of existing laws. In what manner is the contest to be settled if not by submission to a judicial tribunal? If the respondent city refuses upon the theory that appellant has no right to erect and maintain an electric transmission line, it is obvious that the controversy must be adjudicated with reference to the statute from which we have quoted and a judicial construction thereof. If it refuses because it fears the existing use of the streets will be unreasonably interfered with by the new use, the conflict of rights is subject to adjudication by a judicial body. If it refuses because it claims the right to legislate reasonable terms and conditions to which the use shall be subject, its rights and limitations in this particular are the proper subject of judicial inquiry. Finally, if it refuses because in its opinion the proposed location is dangerous to its citizens its contention in this regard is the subject of proof and adjustment. It cannot, however sit, supinely by and deny the right granted to another city without being compelled to submit its contention or claims of right to a court for adjustment. Thus far we have cited no authority upon the precise question, not by reason of lack of analogous reasoning, but rather because we think that to dissect the statute will more clearly reveal the pertinency of prior pronouncements.

The case upon which the greatest reliance is placed by appellant is that of City of Zanesville v. Zanesville Tel. & Tel. Co., supra. In that case the telephone company was authorized by statute to use the roads and streets within the state for the purpose of erecting and maintaining its lines. It proposed to the city of Zanesville an agreement therefor and submitted an ordinance to be passed containing provisions that the lines should be so placed as not to interfere Avith travel, and for protecting the city against damages arising from the construction or maintenance thereof. The city declined and suggested more onerous conditions unsatisfactory to the company, which then brought an action to have its rights determined. The trial court held the statute, authorizing the court to act, unconstitutional. The Ohio Supreme Court says:

In Canada Northern Ry. v. International Bridge Co., (D. C.) 7 Fed. 653 , we also find language very persuasive of the instant cause. In that case Congress authorized the construction of a bridge across the Niagara River by the International Bridge Company “and provided that ‘all railway companies desiring to use said bridge shall have and be entitled to equal rights and privileges in the passage of the same, and in the use of the machinery and fixtures thereof, and of all appurtenances thereto, under and upon such terms and conditions as shall be prescribed by the District Court of the United States for the Northern District of New York’ ”. The objection being urged to a petition to have the terms and conditions fixed that it conferred legislative authority, it was said:

It is unnecessary to the present problem to unqualifiedly approve the length to which these two authorities are extended, but their reasoning is conclusive of our question. And without quoting further we append a list of cases which sustain the result at which we have arrived. (City of Newark v. Erie R. Co., 72 N. J. Eq. 447 [68 Atl. 413]; State v. Superior Court, 42 Wash. 491 [ 85 Pac. 264 ]; West Jersey & S. R. Co. v. Atlantic City & S. Traction Co., 65 N. J. Eq. 613 [ 56 Atl. 890 ]; City of Brownwood v. Brown Tel. & Tel. Co., (Tex. Civ. App.) 152 S. W. 709 ; Lyon v. City of Payette, 38 Idaho, 705 [ 224 Pac. 793 ]; Ballard v. Titus, 157 Cal. 673 [ 110 Pac. 118 ].)

It has been assumed so far herein that the legislature granted appellant the right to use the streets of respondent city, but it is argued by the latter as one of its reasons for maintaining that the statute confers legislative power, that the grant on account of the generality of its language is ineffectual to create a vested right until a final decree of court shall have been signed. It cannot, of course, be denied that the authority of the legislature over the highways is sufficient to warrant it in granting such a franchise when deemed expedient. (Western Union Tel. Co. v. Hopkins, 160 Cal. 106 [ 116 Pac. 557 ]; In re Smith, 26 Cal. App. 116 [ 146 Pac. 82 ].) Under such circumstances it is unimportant whether the notice by appellant of its desire to use certain streets constitutes an acceptance of the grant, or whether the acceptance remains incomplete until the final location is determined upon. The appellant is clothed with a right and has done everything within its power to evidence its selection of particular streets for the purpose of exercising that right. The power to adjust the controversy is none the less judicial.

There yet remains the question whether the legislation is special.

Appellants’ counsel direct our attention to decisions by our Supreme Court holding that a municipal corporation does not change its character by engaging in the business of supplying water and power. One of these cases is in point and must be accorded consideration in determining the present problem. It is the case of City of Pasadena v. Railroad Com., 183 Cal. 526 [10 A. L. R. 1425, 192 Pac. 25 ], wherein it was held that the Railroad Commission was without authority to fix the rates to be charged by the city of Pasadena for supplying the inhabitants of the city of South Pasadena with water. The conclusion in the opinion was arrived at largely by reason of the language of sections 22 and 23 of article XII of the Constitution, which authorizes the legislature to confer upon the Railroad Commission the power of regulation of public utilities, and which sections it is said draw a marked distinction between privately owned public utilities and municipally owned public utilities. Another case, that of Marin Water Dist. v. Marin Water Co., 178 Cal. 308 [ 173 Pac. 469, 471 ], demonstrates that California at least, has departed from the rule laid down by the celebrated Marshall in the case of Bank of United States v. Planters’ Bank of Georgia, 9 Wheat. (U. S.) 904 [ 6 L. Ed. 244 , see, also, Rose’s U. S. Notes], to the effect that when a government enters into business instead of communicating to the business any of its privileges and prerogatives, it descends to a level of the business in which it engages. In the California case, under the authority of a constitutional provision, it is held that a water district formed for the purpose of supplying its inhabitants with water has the right to condemn the property of a privately owned public utility theretofore engaged in the business of supplying water to the same people and that the enactment did not violate the provision of “the federal constitution prohibiting a state from depriving a person of his property without due process of law, or denying him the equal protection of the laws.” The provision of the state Constitution to which we have here referred is section 23a of article XII and reads as follows:

Respondent’s argument, therefore, that there is no “natural, intrinsic or constitutional distinction” to be drawn between a municipality and a private corporation engaged in the business of a public utility is foreclosed of that consideration which might otherwise be afforded it. The people in the Constitution have declared in no uncertain terms that such a distinction exists and have gone so far as to provide for the condemnation of the property of a privately owned public utility to what we must perforce say is a greater public use when acquired by “the state, or any county, city and county, incorporated city or town, municipal water district, irrigation district or other public corporation or district”.

Judgment reversed.

Works, P. J., and Schmidt, J., pro tem., concurred.

A petition for a rehearing of this cause was denied by the District Court of Appeal on October 21, 1930, and a petition by respondent to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on November 20, 1930.