The city may annex such restrictions and conditions to its grant as to its authorities may seem proper, so long as such conditions do not conflict with any law. (Municipal Corporation Act, sec. 862; Civ. Code, sec. 470; Pacific R. R. Co. v. Leavenworth, 1 Dill. 393; Northern Cent. Ry. Co. v. Baltimore , 21 Md. 93; Jersey City etc. R. R. Co. v. Jersey City etc. R. R. Co ., 20 N. J. Eq. 61.)

JUDGES: Britt, C. Belcher, C., and Searls, C., concurred. McFarland, J., Henshaw, J., Temple, J.

OPINION

BRITT, Judge

Plaintiff is a municipal corporation of the sixth class. It is situated in Los Angeles county, a few miles from the city of Los Angeles, and on a line of railway owned and operated by defendant extending from Los Angeles through said South Pasadena and beyond, to the city of Pasadena in the same county. This, together with other tangible property and franchises pertaining thereto, was acquired by defendant in virtue of a consolidation effected about September 26, 1890, under the laws of this state, with another railroad corporation called the Los Angeles, Pasadena & Glendale Railway Company, to which, until said consolidation, such railroad property and franchises belonged. On July 22, 1889, the board of trustees of the plaintiff, the city of South Pasadena, passed an ordinance granting to said Los Angeles, Pasadena & Glendale Railway Company the right to construct, maintain, and operate a steam railroad in certain public streets of the city upon various conditions relating to the improvement of such streets, the maintenance of stations within the city limits, the number of trains to be run each day, etc. Among said conditions was the following: "That round trip fares between any of the above-named stations [those within the city limits] and the business center of Los Angeles city, on the line of the Los Angeles cable railway, shall never exceed thirty cents, including the round trip fare of said Los Angeles cable railway,. .. . and that such round trip tickets shall be on sale at all proper times within said city of South Pasadena." The ordinance further declared that "This franchise is especially granted upon each and all of the provisions and conditions herein contained, and if said grantee or assigns shall fail in any particular to comply therewith, then and in that event all rights under this ordinance shall thereupon and immediately be forfeited, and this grant shall thereupon be null and void." The Los Angeles, Pasadena & Glendale Railway Company, pursuant to the license thus granted, constructed the road above mentioned, and its rights and obligations under said ordinance passed to the defendant in virtue of said consolidation. Prior to September 1, 1891, the defendant and its said predecessor operated the road in conformity with the requirements of said ordinance relating to rates of fare, and carried passengers between stations in South Pasadena and the business center of Los Angeles at the round trip rate of thirty cents, including the fare within that city on said cable railway, the defendant's road stopping short of such business center by the space of about one mile, and the intervening distance being covered by the cable railway which connected with the road of defendant; the fare on the cable road was five cents each way. The defendant's business proved unprofitable, the road not paying expenses of operation, and on August 24, 1891, the board of railroad commissioners of this state passed a resolution to the effect that the said Los Angeles Terminal Railway Company be, and it was thereby in terms, authorized to make the rate of single trip tickets either way between Los Angeles and Pasadena twenty-five cents, and for round trip tickets either way between the same places, good for two days, thirty-five cents, and to raise the rates to and from all intermediate stations in the same proportions. The stations within the limits of South Pasadena [41 P. 1094] are intermediate stations between the city of Pasadena and the city of Los Angeles. Accordingly, about September 1, 1891, the defendant raised its rate for round trip tickets between its station in South Pasadena and the business center of Los Angeles from thirty cents to forty cents, including the cable road fare; this was a net advance on the line of defendant's own road from twenty cents to thirty cents, and the last-mentioned sum -- thirty cents -- was proportionate, as the charge between South Pasadena and Los Angeles, to the charge of thirty-five cents between Pasadena and Los Angeles mentioned in the order of the railroad commission. The more important matters above stated appear from the findings and admitted allegations of the pleadings; some others are shown by the undisputed evidence.

The plaintiff commenced this action November 30, 1891, alleging sundry violations by defendant of the conditions specified in said ordinance of July 22, 1889, including that concerning round trip fares; but as the court found that defendant has fulfilled the requirements of the ordinance in the particulars complained of, except as to such fares, the other matters do not concern us. The prayer of the complaint was in the alternative: 1. That defendant be required to fix and charge for its said round trip fare a sum not exceeding thirty cents, including the fare on the Los Angeles cable railway; or 2. That defendant be enjoined from operating any portion of its road on the route allowed by the terms of said ordinance, and that its road now existing along or over said route be abated as a nuisance. The court below adjudged that said ordinance and all its conditions are binding upon defendant; that it has violated the condition thereof in respect to said round trip fares; that by reason of such violation it has forfeited its right of way granted by such ordinance; that its line of track and other improvements in the streets of plaintiff are a nuisance; that the same be abated; and enjoined defendant from operating the road in the streets occupied by it.

It is by statute provided that "No railroad corporation must use any street, alley, or highway, or any of the land or water within any incorporated city or town, unless the right to so use the same is granted by a two-thirds vote of the town or city authority from which the right must emanate." (Civ. Code, sec. 470.) By the terms of section 862 of the municipal corporation act (Stats. 1883, pp. 269, 270) plaintiff's board of trustees is given power, "13. To permit, under such restrictions as they may deem proper, the laying of railroad tracks and the running of cars drawn by horses, steam, or other power thereon. .. . in the public streets." Somewhat advanced ground is taken on behalf of respondent upon the effect of these enactments. It is claimed by counsel that the "power thus granted is an absolute one, the franchise to be granted or not in the discretion of the city authorities"; that "having this power to grant or refuse, it may annex such terms and conditions to its grant as to its authorities may seem proper, so long as such conditions do not conflict with any law." With the qualification stated, viz., that such conditions do not conflict with any law, we may accept the statement as correct for the purposes of this decision. The ruling in Pacific R. R. Co. v. Leavenworth, 1 Dill. 398, was that the authorities of the city might prescribe in such a case, as conditions of their assent, "such lawful and proper terms as they deemed expedient." The authority of the city board of trustees under the statutes referred to is legislative in its nature; primarily it is of a piece with the power to enact municipal police and other ordinances -- local laws (McCracken v. San Francisco , 16 Cal. 620) -- and is not referable for its support to the power of making contracts. (San Francisco v. Spring Valley Water Works , 48 Cal. 529; People's R. R. v. Memphis R. R ., 10 Wall. 51; Dillon on Municipal Corporations, 4th ed., sec. 724; Tiedeman on Municipal Corporations, sec. 302; see Arcata v. Arcata etc. R. R. Co ., 92 Cal. 639; Reagan v. Farmers' etc. Co ., 154 U.S. 397.) If the city could make a valid agreement for rates of fare to Los Angeles, including the charges of a connecting line of street railway, then it might also stipulate for rates over connecting lines to San Francisco or elsewhere. And if, as claimed by respondent, the case is one of mere contract obligation, then we think it clear that some grant of authority mediately through the legislature -- and this would be of doubtful constitutionality -- or immediately through the constitution, from the people of the state, either in express terms or by necessary implication, must be exhibited to warrant such a contract; and, since none appears, we think the city was as destitute of capacity to bargain with a railroad company for rates of transportation to distant points for its inhabitants and other persons to whom it does not stand in loco parentis (San Diego Water Co. v. San Diego , 59 Cal. 517), as it was, for example, to bargain with a purveyor to supply them with entertainment; the city is not the agent of its inhabitants or of the public for such purposes. (Hodges v. Buffalo , 2 Denio, 110; Love v. Raleigh , 21 S.E. 503 (N. C., April 16, 1895); and see Wallace v. San Jose , 29 Cal. 186-88; Herzo v. San Francisco , 33 Cal. 143; Aberdeen v. Honey, 8 Wash. 251, 254; Tiedeman on Municipal Corporations, sec. 169.)

Therefore, we must determine whether the ordinance under view transgresses any of the just and needful restrictions which the general law of the state imposes upon local legislation of this nature. A municipal ordinance must consist with the general powers and purposes of the corporation, [41 P. 1095] must harmonize with the general laws of the state, the municipal charter, and the principles of the common law. (Ex parte Frank , 52 Cal. 609; 28 Am. Rep. 642; Ex parte Kearny , 55 Cal. 225.) One of the limitations upon such ordinances is that they can have no extraterritorial force unless by express permission of the sovereign power; in the nature of things this must be so unless intolerable confusion and evil are to result; and the constitution of the state, recognizing the necessity for such a restriction, has provided (Const., art. XI, sec. 11) that "Any county, city, etc., may make and enforce within its limits all such local,. .. . and other regulations, as are not in conflict with general laws." Here was a road lying partly within the confines of at least three municipalities -- Los Angeles, South Pasadena, and Pasadena; conceding the right of plaintiff to impose a limitation on the charges to be made for passage between stations within its limits and stations elsewhere, then the other cities named have, or might have, the same right; but suppose the city of Los Angeles, as a condition of the occupation of its streets by the railroad, had ordained that the round trip fare between stations within its limits and South Pasadena should be more or less than that fixed by the ordinance of the latter city; or that the fare to Pasadena, a place more remote than South Pasadena, should be less than that to the latter point as fixed by its own ordinance, is it not plain either that a conflict must arise and inevitable discrimination between the places ensue -- expressly prohibited by the constitution, article XII, section 21 -- or that the railroad company must charge only the lowest of the rates thus fixed by jurisdictions of equal authority, and so the ordinance prescribing the lowest rate be made operative in and between both places? Similar illustrations of possible confusion might be multiplied indefinitely.

Respondent likens the case to one in which an individual grants the right of way for a railroad over his land, and in part consideration thereof receives a free pass on the road for himself and family. But the analogy fails in all essentials: 1. As we have seen, the city, unlike an individual, has no authority to provide free passes or other transportation for anybody, unless a convict or some such person, to whom the city occupies a relation of guardianship; 2. The streets of the city are not held as corporate or municipal property, subject to the power of contractual disposition, like the property of an individual (San Francisco v. Spring Valley Water Works, supra ; In re Philadelphia etc. R. R. Co ., 6 Whart. 44; 36 Am. Dec. 202); 3. The ordinance here does not confine its scope to any individual or number of individuals, but attempts to regulate the fares to be paid by the general public -- all persons wherever resident; in short, is of governmental character.

The views above expressed render it unnecessary to consider the questions presented by counsel concerning the power of the railroad commission to fix round trip rates of fare, and whether, if it has the power, the order of the commission made August 24, 1891, was a sufficient exercise thereof to properly affect the rates involved here. It seems to us, however, that the usefulness of that commission for some of the principal purposes it was designed to accomplish -- the prevention of discrimination between places and the imposition of excessive charges by transportation companies -- must be greatly impaired, not to say destroyed, if its action may be forestalled by local ordinances prescribing rates of fare to distant points passed by every city or town admitting a railroad into its streets. We incline to think that what Chief Justice Gibson called the "universality of the public sovereignty" over the entire subject (In re Philadelphia etc. R. R. Co., supra ) is so manifest in the constitution of the state that probably even the legislature could not confer upon a municipality the power claimed by respondent. But this need not be decided; it is sufficient to say that the legislature has not attempted to do so.

We are of opinion that the clause of the ordinance found to have been violated by defendant was void for want of power in the municipality to enact it; and that the judgment and order appealed from should be reversed and the cause remanded, with instructions to the court below to modify the conclusions of law contained in the findings so as to conform to this opinion, and thereupon to enter judgment for defendant.

For the reasons given in the foregoing opinion the judgment and order appealed from are reversed, and the cause remanded, with instructions to the court below to modify its conclusions of law contained in the findings so as to conform to this opinion, and thereupon to enter judgment for defendant.