(dissenting). By the opinion of the majority of the court it is held that the appellant has acquired a franchise for the use of 'the appellee’s streets under and by virtue of section-536 of the Civil Code of-California, enacted March 21, 1872, which provided that:

It is matter of common knowledge that, at the time of the adoption of the statute, telephones for public use were unknown. The opinion does not attempt to construe the statute, or to say that i't authorizes the construction and maintenance of telephone lines; nor does it deny the doctrine that in construing a statute that meaning must be given to its words which they had at the date of the act, a doctrine which is well established by the authorities. 26 Am. and Eng. Enc. of Law, 611, and cases there cited. In Wadsworth Board of Works v. United Telephone Co., 13 Q. B. D. 914, it was said that a word used in a statute must receive the popular meaning existing at the time when the act of Parliament was passed. In Sharpe v. Wakefield, 22 Q. B. D. 242, Lord Esher said:

Nor is it denied that in Richmond v. Southern Bell Telephone Co., 174 U. S. 761 , 19 Sup. Ct. 778, 43 L. Ed. 1162 , the Supreme Court, in construing a statute similar to section 536, held that its provisions had no application to telephone companies. Said the court in that case:

But the opinion of the majority of this court assumes that all of these considerations are to be disregarded, and that section 536 of the Civil Code of California must be held to include telephone companies, under the doctrine that a federal court is bound to follow the construction placed upon a state statute by the highest judicial tribunal of the state. It is not to be doubted that, if the Supreme Court of California has placed a construction upon this precise statute, that construction must he adopted by a federal court. It is not asserted that this statute has ever been construed by the Supreme Court of California; but it is said that, because that court has held in Davis v. Pacific Tel. & Tel. Co., 121 Cal. 313 , 57 Pac. 764 , 59 Pac. 698 , that the word “telegraph” as used in another statute, a section of the Criminal Code of that state, should be construed to include “telephone,” a construction has been placed upon the word “telegraph” as used in section 536' which this court is bound to follow. This proposition, I confidently assert, is unsupported by reason or authority. While there is a prima facie presumption that the meaning of a word repeatedly used in the same statute is identical in all cases, unless there is something to show a different intention, the presumption is at best a weak one, or, as End-lich says (section 387), “it is not of much weight.” But such a prima facie presumption has not been held to apply to words used in different statutes. On the contrary, the doctrine is well sustained that there is no presumption that a word is used in the same sense in different statutes. In L. & N. R. Co. v. Gaines (C. C.) 3 Fed. 266 , it was held that the fact that the Constitution of a state uses a word in one sense in one clause is no evidence that it is used in the same sense in every other clause, and that even in the same statute a word is often used with distinctly different meanings; the court giving to it in each instance the meaning which ilie Legislature intended it to have in that particular connection. In State v. Knowles, 90 Md. 654 , 45 Atl. 878 , 49 L. R. A. 695, the court said:

See, also, Henry v. Trustees, 48 Ohio St. 676 , 30 N. E. 1122 , and cases there cited.

Section 536 of the Civil Code and section 591 of the Penal Code are subject to different rules of construction. The latter was, in the Davis Case, construed under the authority of section 4 of the Penal Code, which provided that:

But the construction of section 536 is controlled by the general rule, which is thus expressed in Knoxville Water Co. v. Knoxville, 200 U. S. 22 , 26 Sup. Ct. 224, 50 L. Ed. 353 :

The provision of section 4480 of the Political 'Code that, with relation to. time, the provisions of the four Codes must be construed as though all such Codes had been passed at the same moment of time and were parts of the same statute, does not purport to say that a word used in the statutes shall have the same meaning wherever used, and it has no bearing upon the question whether the Supreme Court of California has construed section 536 of the Civil Code; and the decision of that court in Bruner v. Superior Court, 92 Cal. 239 , 28 Pac. 341 , that under section 4480 the word “elisor,” as used in Code Civ. Proc. § 226, must be deemed to have been used with reference to its definition given in the Political Code, has no application here, for the reason that the word “telegraph” has not been defined in either of the Codes, as was the word “elisor.”

In Wood v. Brady, 150 U. S. 18 , 14 Sup. Ct. 6, 37 L. Ed. 981 , it was held that the construction placed by a state court upon one statute implies no obligation on its part to put the same construction upon a different statute, although the language of the two may be similar. In Carroll v. Carroll’s Lessee, 16 How. 275 , 14 L. Ed. 936 , it was held that the construction placed upon a state statute by the highest court of that state, in a case where the decision did not necessarily involve the construction of the statute, is not binding on the federal courts. In Caesar v. Capell (C. C.) 83 Fed. 403 , it was held that, while federal courts follow the construction of the state statutes given by the courts of the state, they are not required to adopt a construction based on implications from the language of a judicial opinion. In Southern Ry. Co. v. Simpson, 131 Fed. 705 , 65 C. C. A. 563 , it was held that the opinion of a state court of lasj: resort construing a state statute is conclusive on the federal courts sitting in such state to the extent only of the precise question decided. Said Judge Lurtoh, for the court:

I submit that not only has section 536 not been construed by the Supreme Court of California, but that we have no means of knowing, from any of the decisions of that court, what construction would be placed upon it in a case involving its meaning. I think that the opinion of the court below ( 164 Fed. 561 ) correctly disposes of the questions of law involved in the case, and that the judgment should be affirmed.