LOS ANGELES RAILWAY COMPANY v. CITY OF LOS

ANGELES.

[152 Cal. 242, 92 Pac. 490.]

FRANCHISE, Forfeiture of Ipso Facto.-A statute providing for the obtaining of street railway franchises, specifying certain provisions, and declaring that a failure to comply with either of the provisions or with any of the provisions of any ordinance granting the franchise works a forfeiture of the right of way and franchise, is self-executing, and no adjudication or other judicial proceeding is necessary to declare the forfeiture. (p. 56.)

STREET RAILWAYS, Forfeiture of Right to Lay Track of.Upon the breach of a condition or provision which, by the statute, has the effect of forfeiting its franchise, a street railway has no more right to lay its track than if it never had been granted such right. (pp. 56, 57.)

STREET RAILWAYS, Right of Municipality to Resist by Force. If the right of a street railway company to lay additional track has been forfeited by the lapse of time, the municipality has the right to resist by force any attempt to lay such additional track. (p. 57.)

Bicknell, Gibson, Trask, Dunn & Crutcher, for the appellant.

W. B. Mathews, Leslie R. Hewitt, Herbert J. Goudge and Lewis R. Works, for the respondent.

243 BEATTY, C. J. This is an appeal by the plaintiff-a street railway corporation-from a judgment of the superior court denying its prayer for an injunction restraining the defendant from interfering with the exercise of an alleged franchise. The record consists of the pleadings, certain stipulated facts, and the decree, from which it appears that, by an ordinance of the city of Los Angeles, duly adopted May 11, 1897, the predecessors of plaintiff were granted a franchise to construct and operate a street railway over and along certain streets of that city-the work of construction to be commenced within six months, and completed within eighteen months from the passage of the ordinance. By a subsequent ordinance the time of completion was extended six months, but at the end of this extended time-May 11, 1899-only one and three-quarter miles out of four and three-quarter miles of the projected road had been built, leaving one mile at one end and two miles at the other end of the route covered by the franchise entirely vacant and unoccupied, in which condition it remained until May 1, 1903, a period of four years. One of the express conditions contained in the ordinance granting the franchise was the following: "If said

road is not fully completed and in operation within said time, then this franchise shall be forfeited as to the portion thereof uncompleted." The grantees of the franchise paid the city therefor the sum of five thousand dollars. No ordinance declaring the franchise forfeited was ever passed or adopted, but, on May 15, 1903, while the plaintiff was engaged in the work of extending its tracks over a portion of the route described in the ordinance which had been left unoccupied from May 11, 1899 to May 1, 1903, the defendant, by its police officers and superintendent of streets, entered upon this new construction, compelled plaintiff to suspend work, and threatened to tear up and remove the newly laid tracks.

To enjoin this proceeding the present action was commenced May 15, 1903. It appears from the decree that an injunction pendente lite was issued restraining defendant, its officers, agents, etc., from tearing up, removing, destroying or in any wise interfering with the new portion of the track then in process of construction, and this temporary injunction remained in force until October 12, 1905, when it was dissolved by the final decree from which this appeal is prosecuted. 244 The question whether the superior court erred in dissolving the temporary injunction and denying a permanent injunction depends mainly upon the further question whether the franchise of plaintiff was forfeited ipso facto by its failure to complete the road within the time limited by the grant. The respondent claims that it was so forfeited under the provisions of section 502 of the Civil Code, while the appellant contends that without a decree declaring a forfeiture in an action by the attorney general in behalf of the state, the franchise remained unimpaired. It is argued in support of this view that nothing is involved in this controversy beyond the respective rights of the plaintiff and defendant growing out of and dependent upon the ordinance granting the franchise, which, it is contended, embraces all the terms of the contract, and which upon the received construction of grants providing for forfeitures upon breach of conditions subsequent means no more than that their breach entitles the grantor to maintain an action to enforce the forfeiture. The respondent, on the other hand, contends that section 502 of the Civil Code in force at the date of the grant is a part of the contract, and that it is self-executing in working a forfeiture for failure to complete the construction of the road within the time specified in the ordinance.

We agree with the appellant that the rights of the parties are measured by the terms of their contract, but we think the

statute (Civ. Code, sec. 502) enters into the contract, and that its provisions must be taken into account in construing the contract. The city in granting a street railway franchise is but an agency of the state, and if there were any conflict between the ordinance containing the grant and the general laws of the state, the latter would govern. In this case, however, there is no conflict. The ordinance provides that in case of a failure to complete the work within the time limited the franchise shall be forfeited, but if this provision is not selfexecuting, it is not in conflict with a provision of the statute which is self-executing, and so the only question is as to the proper construction of these words of section 502 of the Civil Code: "A failure to comply with either of the foregoing provisions of this section, or with either of the provisions of the ordinance granting said right of way, works a forfeiture of the right of way and also of the franchise," etc.

245 We are of the opinion that the words italicized make the statute self-executing. A judgment declaring and enforcing a forfeiture does nothing more than work a forfeiture, and when a breach of condition works a forfeiture there is no office for a judgment to perform, except perhaps to supply conclusive evidence of the fact-evidence which may in certain contingencies be useful, though not for all purposes essential.

Our conclusion upon this point is fully supported by the cases of Oakland R. Co. v. Oakland B. B. & F. V. Co., 45 Cal. 365, 13 Am. Rep. 181, and Upham v. Hosking, 62 Cal. 250. In neither case was the language providing for a forfeiture any stronger or more explicit than the language of section 502 of the Civil Code, but in both it was held that the forfeiture was complete upon failure to comply with the conditions of the respective grants. Those decisions have been frequently cited and never overruled by this court, though questioned in other jurisdictions.

Borland v. Lewis, 43 Cal. 569, is another case in which the provision for a forfeiture was held to be self-executing, but there the language of the statute was different and stronger than that in question here. A large number of decisions in other jurisdictions are cited by the appellant, many of which support its contention—and many of an opposite tendency are cited by respondent. We do not consider it necessary to review these cases, since our own decisions must control. The decision in People v. Los Angeles Electric Ry. Co., 91 Cal. 338, 27 Pac. 673, so far as it touches the question we are considering, implies that if the time allowed for construction had

expired before the commencement of the action, the franchise would have been forfeited, but the question whether the provision of section 502 of the Code of Civil Procedure, for forfeiture of the franchise for failure to complete the work in time, is self-executing would not have been involved.

In Santa Rosa etc. Co. v. Central Co., 112 Cal. 436, 44 Pac. 733, the question was involved, and the final affirmance of the judgment of the superior court by reason of the equal division of the qualified justices of this court was in effect a decision that the forfeiture in such cases is self-executing.

It follows from this conclusion that the plaintiff having forfeited its right to use or occupy the street which it had left vacant for four years after the expiration of the time limited 246 for the completion of its road, had no more right to lay its track there than one who had never been granted a right of way, and the city was clearly within its right in preventing the trespass.

Some cases are cited in support of the contention that even if the right of way was forfeited ipso facto on the 12th of May, 1889, the city could not lawfully oust plaintiff from the possession of the street by force. But those cases are not in point. The plaintiff was not in possession. It was attempting unlawfully to take possession, and the city was merely resisting an unlawful entry upon a street which its duty to the public required it to keep clear of unauthorized obstructions. The judgment of the superior court is affirmed.

Shaw, J., McFarland, J., Sloss J., Angellotti, J., and Lorigan, J., concurred.

The Charter of a Corporation has been Held not to Expire by reason of an omission or commission of acts on the part of the company for declaring a forfeiture, but such franchises continue in full force until the penalty of forfeiture is claimed by the state, by and through legal proceedings by which the cause of forfeiture is legally declared: Higgins v. Downward, 8 Houst. 227, 40 Am. St. Rep. 141.

ESTATE OF LENNON.

[152 Cal. 327, 92 Pac. 870.]

WILLS, Revocation of Probate of, What is not a Ground for. That a will is invalid and contrary to the laws of the state relating to charitable uses is not a ground for revocation of its probate. (p. 59.) A CHARITABLE TRUST is a Gift for the Benefit of Persons, either by bringing their hearts and minds under the influence of education or religion, by relieving their bodies of disease, suffering or constraint, by assisting to establish them for life, by erecting or maintaining public buildings, or in other ways lessening the burdens or making better the condition of the general public, or some class of the general public, indefinite as to names and numbers. (pp. 59, 60.)

WILLS-Bequests for Masses.-A bequest to the bishop of a Catholic church of a specific sum "to have the same amount of masses celebrated as soon as possible" for the soul of the testator is not a bequest for a charitable use, and is valid. It does not fall within the provisions of the statute restricting devises and bequests for charitable uses. (p. 60.)

WILLS-Bequests for Superstitious Uses.-Bequests are not Prohibited as Superstitious if they are mere observances of any ceremonial, the efficacy of which is recognized by the church of which the donor is a member. "No religious observances can be deemed as a matter of law superstitious. (p. 60.)

O. V. Eaton, E. T. Maples and F. D. McClure, for the appellants.

H. C. Dillon and J. Wiseman Macdonald, for the respondent.

328 HENSHAW, J. The will of the deceased having been admitted to probate, appellants, as next of kin, filed a petition asking for the revocation of the probate upon three grounds: "First, that said alleged last will and testament is invalid. and contrary to the laws of the state of California as made and provided by section 1313 of the Civil Code of said state relating to charitable uses; second, that the decedent was unduly influenced in the making of the will; third, that the will was not entirely written, dated and signed by the hand of the testator." The second and third grounds were not supported by evidence, and seem to be abandoned upon this appeal. The first is not a ground for revocation of the probate of a will, since, if any will falls under the inhibition of section 1313 of the Civil Code, that section itself provides for the disposition of the assets of the estate which must follow: Estate of Willey, 128 Cal. 1, 60 Pac. 471.

Appellants undertake to bring to this court two appeals, one apparently from the decree settling the final account and