We adopt as correct the statement of facts and of the issues prepared by Mr. Justice Richards in the opinion of the district court of appeal, first .district, first division, as follows:

The Gross Eeeeipts from Electricity Furnished for Lighting Purposes.

[1] It is admitted that under the decision of the United States supreme court in Russell v. Sebastian, supra, the Great Western Power Company at all times after 1908 had a franchise which enabled it to furnish electricity for lighting throughout the whole city of Oakland. The contention of the city is that by the application for the franchise in 1913 and by the acceptance of a franchise which covered the whole city (with the exception of a certain district), the defendant thereby surrendered its constitutional franchise in lieu of the franchise granted in 1913. Whatever justification thére might be for this theory, if the granting of the franchise of 1913 had been a result of mutual bargaining between the parties, assuming that they stood on the same basis as private persons negotiating for similar rights and entering into a new contract with relation to those rights, there is absolutely no justification for the extension of this theory to the facts involved in this case where the grant of the franchise of 1913 as well as that of 1909 was required to be to the highest bidder at public auction. The applications of the defendant to the council of the city of Oakland to offer for sale at public auction the form of franchise proposed by it merely set in operation the machinery provided in the charter act for the sale of franchises (Charter of Oakland, art. XX, Stats. 1911, p. 1628). ■ The applicant for such a franchise, if he bids at the sale, stands upon no different footing from any other individual in the community who may be a prospective buyer of the franchise.

The charter in effect at the time of the sale of the 1913 franchise provided that the franchise should be sold to the “bidder offering to pay to the city during the life of the franchise, permit or privilege, the highest percentage of the gross annual receipts received from the use, operation, or possession of the franchise, permit or privilege, provided that such percentage be not less than two per cent of said gross annual receipts during the first five years,” etc. (Sec. 140, subd. 2, art. XX, of the Charter, Stats. 1911, p. 1629.)

[2] It is difficult to see upon what theory the purchase by the defendant of this franchise, either directly from the city or from some purchaser of the franchise at public auction, could in anywise affect a right which it theretofore owned. There is no provision in the franchise requiring the surrender to the city of other franchises. There was no agreement in the application or at any other time on the part of the defendant to surrender such franchise and the charter does not require such surrender. We cannot understand how the purchase of such franchise by the defendant can be justly made a basis for a claim that it thereby agreed to pay two per cent of the gross returns from the operation of the properties and franchises theretofore owned and operated by the purchaser. On the contrary, the charter required that the bidding should be on the basis of the annual receipts derived from the possession of the franchise so purchased (subd. 2, supra), and not from the possession of prior franchises. Neither the franchise granted by the city nor that granted by the constitution was exclusive. The ordinance granting the franchise expressly provided that it was not an exclusive privilege. If the franchise offered for sale had been purchased by some competitor of the defendant, there was no reason why the defendant could not continue to operate under its constitutional franchise and no legal reason why it could not again apply to the council to advertise a new blanket franchise covering the city. The whole scheme for the sale of franchises at auction upon competitive bidding is opposed to the theory that the purchaser of the franchise surrenders any right it theretofore had, merely by purchase at such sale. It is not contended that the defendant surrendered its rights by the application for the franchise, nor would it be contended that it surrendered its rights to some other bidder for the franchise if it had been unsuccessful in the competition. At what point, then, can it be said that the defendant surrendered its constitutional franchise to the city?

The answer presented by the city is: “At the time it acquired the new franchise, ’ ’ but this answer ignores the fundamental requirement of competitive bidding for all franchises.

The city makes the point that certain sections of the ordinance granting the franchise of 1913 show an intention to substitute the new franchise for the old. For instance, the franchise of 1913 contains an agreement by which the grantee obligates itself to sell to the city for cash, all prop erty used in the enjoyment of the franchise (see. 16). This provision of the franchise was required by the charter to be inserted in every ordinance granting a franchise (Charter of Oakland, sec. 145 of art. XX, supra).

This point is answered by the fact that the ordinance granting a franchise is not the result of mutual bargaining from which it might well be inferred that the defendant was agreeing to sell all its property to the city, but is a general proviso applicable alike to all prospective purchasers, and, therefore, to be construed only as applicable to property used in the exercise of the particular rights granted by the franchise and not otherwise owned or acquired. To require a purchaser owning a perpetual franchise to distribute electricity for light, and another to distribute electricity for power and heat, to agree to sell that system at the end of thirty-five years, long before its rights to so distribute electricity for light, heat, and power terminated under its other franchises, as a condition of bidding for the new 1913 franchise would be obviously putting such a purchaser at a great disadvantage as compared with other bidders owning no system and no rights, and would require a consideration from it wholly out of proportion to that tendered by other bidders. The contention that the defendant, by bidding in this franchise, in effect agreed to surrender a perpetual franchise, and a fifty-year franchise, and agreed to sell its property in thirty-five years, and that the agreement so to do is a consideration for the new franchise, if sustained, shows that the city was requiring from this bidder a consideration it had no right to require or to exact, for the only consideration the city was authorized to accept in such competitive bidding was a percentage of the gross receipts to be derived from the franchise sold. The basis upon which the percentage was to be computed is the same in the ease of each bidder. This contention of the city cannot be sustained if the fundamental principle of equal competitive bidding for franchises be conceded, as it must be in the light of the express requirements of the charter (sec. 140, subd. 5, art. XX, supra). Furthermore, as its hid of percentages would cover the receipts from its plant and distributing system already installed, which amount the city is seeking to recover in this action, vdiile another competitor would be compelled to pay only on the revenue from its plant subsequently installed, it is apparent that a bid of two per cent from a corporation with a larger business already developed would be vastly greater in proportion than that of a similar percentage from a bidder that might take years to develop its system to the point already attained by its competitive bidder.

On the other hand, suppose that the defendant’s constitutional franchise requited an annual payment to the city of five per cent of the gross returns, would it be contended that the defendant by bidding in a blanket franchise requiring no payment for three years, and two per cent thereafter, would thereby be released from the payments due under its original franchise where it continuously occupied the streets with its poles and wires and conducted its business ? Assuredly not. If it did not terminate its duties under the old franchise it is equally clear that the mere bidding in of such a blanket franchise did not terminate its rights thereunder.

Other points of the city based upon an analysis of the terms of the franchise of 1913 are met by the same considerations and, therefore, need not be considered in detail.

There is no basis whatever, in law or in fact, for the contention that the defendant’s rights and duties under its old franchise terminated by the acceptance of the new. The customers of the defendant were entitled to be served under the terms of the old franchise, a right derived by them from the constitution, and the people in the district not yet served by the defendant were entitled to the same privilege (Russell v. Sebastian, supra). These mutual rights and duties should not be deemed impaired or terminated by mere inferences derived from circumstances that defendant applied for and subsequently bid in a new franchise duplicating in part rights it already enjoyed and was entitled to continue to exercise. The situation presented by the record is simply this:

The defendant at all times since 1908 has had the right by an express grant to it by the constitution of the state to serve the inhabitants of the city of Oakland with electricity for lighting purposes.

All revenues derived from the sale of electricity for light are revenues derived by the corporation by reason of its constitutional franchise and not by reason of the franchises subsequently obtained from the city for the distribution of electricity for lighting purposes.

If it should be held that the franchise of 1913 had any effect upon the prior right of the bidders, it would follow that there could be no equal and competitive bidding.

The charter expressly provides that franchises shall be so framed that there shall be no direct or indirect restriction upon free and open competition in bidding therefor (art. XX, sec. 140, subd. 5, supra).

The Great Western Power Company, if compelled by its bid to surrender its perpetual franchise for the distribution of electricity for lighting purposes, could .not afford to bid as much for the franchise as some other bidder who had no such interest at stake, and the same would be true with reference to any other owner of a franchise which would be included in the blanket rights covered by the franchise of 1913. Hence no such surrender can be implied.

The city relies very strongly upon the case of City of Hanford v. Hanford Gas etc. Co., 169 Cal. 749 , [ 147 Pac. 969 ], while the defendant relies with equal assurance upon the decision in the Town of Suisun City v. Pacific Gas & Electric Co., 35 Cal. App. 380 , [ 170 Pac. 1078 ]. We will refer to the former as the Hanford and to the latter as the Suisun case. The question involved in the Hanford case is altogether different from that involved in the case at bar. In that case suit was brought by the city to recover from the holder of a franchise for heat, light, and power, the two per cent of the gross annual receipts arising from the use of the franchise. The defendant demurred to the complaint, making no issue upon the allegation of the complaint that the receipts sought to be recovered were derived from the franchise, but claiming that by reason of its holding a constitutional franchise it had the right to distribute heat and power as well as light. This contention was determined against the defendant and it was held that the franchise gave the right for heat and power distribution, something which the company did not possess under the constitution. The question answered in that case is thus stated in the decision: “Did the defendant in accepting this franchise from the City of Hanford acquire anything of value?” Instead of supporting the contention of the plaintiff it is apparent from the decision, taken as a whole, that the court eon sidered that there was no inconsistency between the grant for light, already owned by the gas company, and the right to distribute gas for light and power purposes, covered by the new franchise.

The Suisun case was an action similar to the one at bar brought by the city to recover a percentage of the gross receipts from a franchise granted by the board of trustees of Suisun for light and power purposes to one Prior, who had theretofore been distributing electricity for lighting purposes under the constitutional franchise. It was held that the grant by the city for lighting purposes was void and in conflict with the constitutional franchise, and that the obligation to pay two per cent did not arise on the electricity distributed for lighting purposes. A petition for hearing in this court was denied in the Suisun case. The only distinction between that case and the one at bar favorable to the contention of the plaintiff is that subsequent to the grant of the franchise in the Suisun case the constitution of the state was amended (Const., art. XI, sec. 19). On the other hand, it is urged that the city of Oakland was not by such amendment vested with authority to grant franchises for the distribution of electricity for lighting purposes, and, therefore, that the rule in the Suisun case is still applicable. In view of our conclusion that the defendant has the right to furnish electricity for lighting purposes under its constitutional franchise and is not required to pay two per cent of its gross return therefrom, we deem it unnecessary to further discuss the authoritative force of either the decision in the Hanford or the Suisun case. Neither of these cases is opposed to the conclusion reached by us.

Right to a Percentage of the Gross Receipts Under the Franchise of 1909.

[3] The question is, whether the franchise granted the defendant in 1909 by sale at public auction in accordance with the Broughton Act (Stats. 1905, p. 777) is still in effect or whether the acceptance of the franchise of 1913 operated to supersede the prior franchise.

What we have said with reference to the effect of the grant of the franchise of 1913 upon the constitutional franchise theretofore owned by the defendant is largely determinative of the question here involved. The franchise of 1909 was for a fifty-year period and for the distribution of electrical energy for heat and power purposes only. It was believed by the defendant that the right' to continue construction under this franchise terminated in three years. The new franchise, so far as the distribution of electricity for heat and power was concerned, was desired to cover those districts in the city not theretofore occupied by the power lines of the defendant, in view of the termination of the right to continue construction under the franchise of 1909. There is no dispute as to the amount which would be due on the theory that the ordinance of 1909 remained in full force and effect as these amounts were stipulated before the trial court. What we have said with reference to competitive bidding applies with equal force to the rights of the defendant under the franchise of 1909, although the Broughton Act differs somewhat from the charter. If, as a condition of bidding, or as a result of the acceptance of the new franchise, the rights of the defendant under the old franchise of 1909 were thereby surrendered or lost, then it would follow that the bidding was not competitive. The defendant could only bid at the hazard of losing rights it already possessed while other persons or corporations could bid without such hazard. There is no inconsistency in the ownership by the defendant of rights under several distinct franchises. The parties have been able to stipulate in dollars and cents the return to the city from the respective franchises, if all are still in existence, and there is nothing in the nature of such franchises to justify the conclusion that the acceptance of the later franchise was a surrender of the earlier franchise. The only difference between the defendant as a purchaser of the franchise and any other bidder is that the acceptance of the franchise by the defendant enables it to furnish the heat and power to customers and in districts not theretofore served under the franchise of 1909 without duplicating poles and wires in the districts theretofore served.

The conclusion of the trial court was erroneous upon this branch of the case.

This conclusion is fortified by the fact that the franchise of 1913 made no reference to existing construction but was framed upon the theory of additional and new construction to be commenced within four months of the date of the granting of the franchise, and therefore had no application to rights under a previous franchise and construction already erected thereunder.

As to the Percentage upon Deliveries to the Pacific Gas & Electric Corporation at Moraga.

[4] It appears from the evidence without question that the defendant corporation sold electric energy to the Pacific Gas & Electric Company. A portion of this power was delivered from the power- lines of the defendant company to the power lines of the Pacific Gas & Electric Company at a point named Moraga outside of the city limits of the city of Oakland. Under both the franchises of 1909 and 1913 the payment of a percentage by the defendant to plaintiff was only “upon the gross annual receipts resulting from the sale of electric energy delivered within the limits of the city of Oakland.” The contract between the defendant and the Pacific Gas & Electric Company provided for a delivery “at the junction of the power company’s main electric transmission lines and the main electric transmission lines of the consumer, about eight miles southeasterly from said Ridge station.” This point is known as Moraga. It was also provided that the meters and measuring instruments for measuring the power delivered at Moraga should be installed in the power company’s electric substation in said Alameda County, known as its “Fourth Avenue substation.” It is clear, however, that so long as the electricity remained on the power lines of the defendant that it was not delivered to its customer, the Pacific Gas & Electric Company. Obviously, the point of delivery was the junction of the lines of the two systems as was expressly provided in the contract between them. The fact that there was power line loss between the measuring station and the point of delivery is of no significance whatever. Such loss is a known quantity and the amount of electricity delivered at the point of intersection of the two power lines could be as accurately determined by a meter several miles away as by a meter at the point of delivery. Both the contract and the physical facts demonstrate that the point of delivery was outside the city of Oakland and consequently not within the terms of the franchise. [5] A point is made by the plaintiff that some portion of the power delivered by the defendant to the Pacific Gas & Electric corporation is subsequently returned by that corporation and distributed within the limits of the city of Oakland. Obviously, the defendant is not concerned with the distribution of power by its consumer, and such deliveries by the consumer are not deliveries within the meaning of the franchises held by the defendant. It may be said, however, in connection with this point that the twelve thousand kilowatt hours delivered by the defendant to the Pacific Gas & Electric Company is mingled with the other current flowing in the wires of the Pacific Gas & Electric Company derived from independent sources of power and that only about five hundred kilowatt hours of the total of twenty-five thousand kilowatt hours in the lines of the Pacific Gas & Electric Company is subsequently used within the city of Oakland. This quantity, however, is immaterial to any point involved in this litigation. The court was in error in holding the defendant liable for a percentage of the gross annual returns upon the power delivered at Moraga.

In the event that it was decided that the defendant owns and holds its constitutional light franchise and its franchise of 1909 and 1913 and that the sales of electricity delivered at Moraga are not to be considered in determining the gross earnings of the defendant company, the proper amount of the judgment in favor of the plaintiff and against the defendant was stipulated.

Judgment reversed, with instructions to the trial court to enter judgment in accordance with the stipulation of the parties as to the amounts due under the law as determined by this court.

Shaw, J., Sloane, J., Angellotti, C. J., Lawlor, J., and Lennon, J., concurred.