Circumstances which I could not well control have prevented me from giving to this case the prompt consideration which it otherwise would have received.

At the oral argument, Mr. McCutchen submitted, and his printed brief subsequently filed contains, the following abstract:

This paragraph, although brief, is comprehensive, and dispenses with a statement of the case. To the facts, which it implies, however, *282 may be added, quoting from page 19 of defendants’ brief filed August 19, 1909, the following:

Complainant, in its reply brief filed September 10, 1909, at page 18, seems to accept this as a correct statement of the matter to which it refers, and I shall, accordingly, do the same.

Section 19 of article 11, above referred to, is as follows:

The other parts of the Constitution, which it is claimed bear on the subject, stated in the order in which Mr. McCutchen’s brief arranges them, are article 14, article 12, § 10, and article 13, § 1.

Complainant’s franchise to occupy and use the streets of the city of Madera must necessarily rest in a grant from the state. There is no other conceivable source from whch it could emanate, and it follows, as the simplest of corollaries, that the nature and extent of the franchise is determinable from the grant, and that no action .by the state, unless it entrenches upon the franchise so determined, can be justly characterized as “contrary to natural rights,” “subversive of fundamental principles,” or “violative of constitutional provisions.” All efforts, therefore, to pitch the controversy on any other than a contractual plane, must be unavailing. Nor does the- claim that section 19 of article 11 should be treated as a provision fixing a state policy help at all to a decision of the case. Indeed, this contention, instead of clarifying, only removes a step further from view, and thus tends to obscure, the point at issue. If it be conceded that said section embodies the declaration of a public policy, still it is, both in form and substance, tire offer of a special privilege, which, when duly accepted, becomes a binding agreement, and,hence, whether or not complainant’s franchise so acquired is exclusive as against the city of Madera *283 is purely a matter of contract, to be determined by applying to tlic section appropriate rules of construction.

With this understanding of the controversy, there is little need to do more than quote the following authoritative utterances from the Circuit Court of Appeals of this Circuit, speaking through Judge Ross;

The opinion of Judge Gilbert, on the hearing of this case in the Circuit Court, is also a clear statement of the law, and I quote therefrom as follows;

To the authorities cited in the above opinions of Judges Ross and Gilbert should be added Knoxville Water Company v. Knoxville, 200 U. S. 22, 37, 26 Sup. Ct. 224, 226 ( 50 L. Ed. 353 ), which wag decided after Judge Gilbert’s opinion was rendered. In the Knoxville Case the court says:

Thus, it will be seen that the Knoxville Case and the one at bar are substantially alike in their issues; the main difference being that here the contract is evidenced by a constitutional provision, and there by an ordinary written agreement between the municipality and the water company. This difference, however, is immaterial so far as concerns the matter of interpretation, and the court, at page 34 of 200 U. S., at page 228 of 26 Sup. Ct. ( 50 L. Ed. 353 ), so declares in the following language:

At page 31 of 200 U. S., at page 229 of 26 Sup. Ct. ( 50 L. Ed. 353 ), the court further says:

In Charles River Bridge Company v. Warren Bridge Company, 11 Pet. (36 U. S.) 420, 543, 9 L. Ed. 773 (underscoring mine), the Chief Justice, speaking for the court, said:

Mr. McCutchen, in his brief, at page 27, refers to the rule of strict construction applicable to private legislative grants as “a rule which *287 grew out of the situation presented by adventurers, as they were called, seeking private grants from the crown, and themselves drawing the-grants and employing ambiguous language, and then endeavoring to take advantage of the ambiguity.” Whatever may have been the (trigin of the rule in England, it is obvious from'the case last cited that the Supreme Court of the United States does not ascribe its adoption by our own tribunals to the reason above indicated, but places it upon the higher, broader ground that powers of government designed to subserve the general welfare can never be surrendered by implication, or,_ in the court’s own language, repeating the extract from the last-quotation (underscoring mine) :

Thus it clearly appears that the reason for the rule which limits a franchise to the express words of the grant is just as strong in the case of a constitutional provision as in that of a legislative enactment ; or, as defendants’ brief filed September 9, 1909, at page G, tersely puts the matter:

See, also, Leavenworth, etc., R. R. Co. v. United States, 92 U. S. 733 . 740, 23 L. Ed. 634 , and Barden v. Northern Pac. R. R. Co., 154 U. S. 288, 325 , 14 Sup. Ct. 1030, 38 L. Ed. 992 .

The Supreme Court of California, on this subject, has said:

The same court, in another case, says:

Nevada v. Hallock, 14 Nev. 202 , 33 Am. Rep. 559 , is without force as a precedent herd. The constitutional provisions there involved conferred no franchise whatever, but merely declared that paupers should be maintained by the respective counties of the state. This unquestionably fixed a public policy, and the court held that an act of the Legislature creating a state asylum, and depriving the respective counties of the means of providing for their own poor, contravened such policy, and was therefore void, saying:

Spier v. Baker, 120 Cal. 370 , 52 Pac. 659 , 41 L. R. A. 196, is also inapplicable. Section 1 of articled of the Constitution of California, there in issue, does not purport to define the nature and extent of the elective franchise, but is simply an enumeration of the persons entitled to exercise it, and the court properly said:

Nor does People v. Stephens, 62 Cal. 209 , holding that the word “cities” in' article 11, § 19, includes towns, conflict with the rule of construction which I have announced, for there the ruling of the court in no way affects the nature or extent of the franchise, but onh adds', by implication, another class of municipalities to the one expressly named in the section. And it may be further observed that to multiply the persons by whom, or the places in which, a franchise such as complainant’s may be .exercised, does not promote, but is restrictive of monopoly.

*289 Both reason and authority sanction the doctrine that, wherever the nature and extent of a franchise restrictive of legislative power is in issue, no matter through what agency of government the franchise was conveyed, whether a constitutional convention, a Legislature, or a municipality, the rule of strict construction against the grantee uniformly prevails, and, applying this doctrine, it must be held that complainant’s franchise does not shut out municipal competition.

By no rule, of construction, however, whether liberal in favor of the public, or such as applies to ordinary agreements between individuals, can a different conclusion be reached. Section 19 of article 11 certainly does not expressly grant an exclusive privilege, but shows on its face that its sole purpose was to prevent monopoly. If it were ever permissible to enlarge by implication grants of special privileges affecting the general interests, where can there be found in the case at bar any justification for such an enlargement?

Complainant invokes the debates and acts of the constitutional convention, and these, it will be readily conceded, are often useful aids to the interpretation of ambiguous clauses (6 Am. & Eng. Ency. of Law [2d Ed.] p. 922); but, if there were a doubt as to the meaning of the section here in question, the proceedings of said convention would resolve the doubt, not in favor of, but- against complainant's contention. Said proceedings in part are quoted by Judge Ross in People v. Stephens, supra, and reproduced by Mr. McCutchen, in his brief already mentioned, and a fuller account, although with slight inaccuracies, is given in the brief filed on behalf of the city and county of San Francisco, August 30, 1909. Mr. McCutchen, at page 4 of his brief, says:

Mr. Volney E. Howard, of Los Angeles, was the author of said section and offered it originally as an amendment to section 25 of article 11; but it afterwards became section 19 of said article. In support of his proposed amendment, Mr. Howard, among oilier things, said (underscoring mine) : ■

The sole object and entire scope of the section is fully and clearly expressed in the sentences above underscored, and I am at a loss to see how there can be given to it a different or a broader meaning than thus stated and defined.

Speaking to the same provisions, although embodied in another section, Mr. Reynolds said (underscoring mine) :

Immediately following, and speaking to the same subject, Mr. Estee said:

Said proceedings were had Jaunary 18, 1879. Earlier the same day the first discussion in the convention concerning water and gas monopolies took place. It arose on the report of the committee on city, county, and township organization; the particular clause under consideration being what was then numbered section 20, but afterwards became section 18 of article 11. The section as reported fixed a maximum limit upon the bonded indebtedness it authorized of 5 per cent, of the assessed value of the taxable property. Various amendments were proposed, among them one by Mr. Capíes, substituting 2 per cent, as the maximum, which was adopted with but little debate at the time, and another by Mr. Estee adding to the exception already made that of acquiring or constructing waterworks. Id. 1068, 1069.

Mr. Hager, in opposition to Mr. Estee’s proposed amendment, said:

Mr. Reynolds at the. same time adverted to the 2 per cent, limit as follows:

Mr. Grace at the same time said:

Mr. Gorman on the same day said:

The amendment of Mr. Estee was then adopted. Id. 1071. Subse-" quently, on February 27th, while said section was again under consideration, the following proceedings were .had :

This amendment struck out certain parts of the section, and was adopted! Id. 1383. One of its effects was to leave the entire section, as it now stands, without any limitation upon the amount of bonded indebtedness.

*293 This last action of the convention, and the debates, which I have quoted, leading up to it, although nominally affecting only section 18, have a direct interpretative bearing upon the latter section, section 19 of article 11, and strongly confirm the remarks of Mr. Howard as to its purpose and meaning.

The Supreme Court of the state, in a case already cited, comments on said remarks as follows (underscoring mine) :

During- the entire debate on the Howard amendment and proposed limitation of bonded indebtedness, there was not the slightest intimation that acceptance of the franchise offered by said amendment would exclude public works, and from the views and dispositions of the members of the convention, shown in the proceedings 1 have ([noted, it is unbelievable that they ever intended to shield the waterworks and gasworks of San Francisco and Los Angeles or any city from municipal or any other sort of competition, or that they intended to prevent or hinder, under any circumstances, the building of waterworks by a city; but, on the contrary, the conclusion is irresistible that their one purpose in this matter was to allow no legal obstacle to stand in the way of such public ownership.

Nor can arguments ab inconvenienti, justify any enlargement by implication of complainant’s franchise.

On this subject the following extract may be aptly quoted (underscoring mine) :

See, also, Greencastle Township v. Black, 5 Ind. 566, 570 .

State decisions to the same effect might be indefinitely multiplied (6 Am. & Eng. Ency. of Law [2d Ed.] 923) ; but it is needless to do so here, since the Supreme Court of the United States, in the Knoxville Case, supra, beginning at page 35 of 200 U. S., at page 228 of 26 Sup. Ct. ( 50 L. Ed. 353 ), settles the doctrine thus;

*295 I am of opinion that complainant’s franchise is not exclusive against the city of Madera, and that the construction and operation of waterworks by said city will violate no provision of either the state or federal Constitution.

The demurrer to the bill will, accordingly, be sustained.