LOS ANGELES COUNTY FLOOD CONTROL DISTRICT, Appellant, v. SOUTHERN CALIFORNIA EDISON COMPANY (a Corporation), Respondent, 51 Cal. 2d 331

TRAYNOR, J. Plaintiff, Los Angeles County Flood Control District, appeals from a judgment entered in favor of defendant, Southern California Edison Company, in an action brought for declaratory relief against numerous public utilities maintaining facilities that must be relocated in the public streets to make way for the construction of storm drains by the district. Edison cross-complained to recover the costs of certain relocations and for declaratory relief with respect to others not included in the complaint.

A severance was granted as to Edison, and the only parties to the trial and this appeal are Edison and the district. The relocations involved are all located within various cities in the county of Los Angeles other than the city of Los Angeles. No question is presented as to the cost of relocating facilities in the unincorporated area of the county or within the city of Los Angeles. In the cities that are involved, Edison operates under various types of franchises; franchises granted pursuant to

article XI,

section 19 of the California Constitution as it existed before 1911, franchises granted by charter cities, franchises granted by both charter and non-charter cities pursuant to the Franchise Act of 1937 (now Pub. Util. Code, §§ 6201-6302), and other franchises not granted under the 1937 Act but which Edison contends have the same legal effect for the purposes of this action. The district is engaged in a comprehensive flood control program involving among other things the construction of storm drains throughout its territory.

It is conceded that Edison may properly be required to relocate its facilities in the public streets to make way for the construction of the drains. The sole issue is whether Edison or the district must bear the cost of such relocations. In Southern Calif. Gas Co. v.

Los Angeles, 50 Cal.2d 713, 716 [329 P.2d 289], we stated that “In the absence of a provision to the contrary it has generally been held that a public utility accepts franchise rights in public streets subject to an implied obligation to relocate its facilities therein at its own expense when necessary to make way for a proper governmental use of the streets. [Citations.] The laying of sewers is a governmental as distinct from a proprietary function under the foregoing rule. [Citations.]’’ In this respect no distinction has been made between sanitary sewers and storm drains or sewers. (New Orleans Gaslight Co. v.

Drainage Com., 197 U.S. 453, 461-462 [25 S.Ct. 471, 49 L.Ed. 831] ; B. & Q. Ry. Co. v. Illinois ex rel. Grimwood, 200 U.S. 561, 591 [26 S.Ct. 341, 50 L.Ed. 596]; see also Matter of L. & W. Orphan Home, 92 N.Y. 116, 119; City of Cincinnati v. Penny, 21 Ohio St. 499, 508 [8 Am.Rep. 73] ; Stoudinger v. City of Newark, 28 N.J.Eq. 446, 448; Cummins v. City of Seymour, 79 Ind. 491 [41 Am.Rep. 618, 625]; ScrantonPascagoula Realty Co. v. City of Pascagoula, 157 Miss. 498 [128 So. 73, 74]; Kiley v.

Bond, 114 Mich. 447 [72 N.W. 253, 254].) Edison contends, however, that the use of public streets for storm drains can only be considered a primary use of the streets when the principal purpose of the drains is to drain the streets themselves. When, as in this case, the principal use of the drains will be to drain the entire areas served and drainage of the streets will be only incidental thereto, Edison contends that use for drainage is on a parity with its own use, and that therefore the district must pay for relocating Edison’s preexisting facilities.

We find no basis in the eases for the distinction Edison seeks to draw based on what may be the primary purpose of any particular drain. Thus in the New Orleans Gas Company case, the defendant’s purpose ivas to provide drainage for the entire city and not merely the streets thereof. It would be manifestly impossible to provide drainage for the public streets without also draining the surrounding land, and the right of abutting owners to discharge surface waters onto the public streets is recognized as a customary use of the streets. (Portman v.

Clementina Co., 147 Cal.App.2d 651, 659-660 [305 P.2d 963] ; see also Kramer v. City of Los Angeles, 147 Cal. 668, 674-676 [82 P. 334].) Moreover, the fact that a comprehensive flood control system requires construction of trunk drains that primarily service areas other than the streets under or across which they are located does not affect the character of the public use or limit the public’s right in the public streets.

Thus, in the Los Angeles Gas Company case, although the city’s sewer served incidentally at most the county street under Avhich it passed, we held that the company’s franchise obligations were not affected. “Such obligations rest on the paramount right of the people as a whole to use the public streets wherever located, and the fact that a franchise is granted by one political subdivision as an agent of the state [citations], does not defeat the right of another such agent acting in its governmental capacity to invoke the public right for the public benefit. [Citations.]” (Southern Calif. Gas Co. v.

Los Angeles, 50 Cal.2d 713, 717 [329 P.2d 289].) Edison contends that any obligation to relocate its facilities at its own expense rests in the police power of the state and that the state has not delegated its police poAver in this respect to the district. It invokes the rule that grants of power to municipal corporations are to be strictly construed and any doubts resolved against the existence of the power claimed. (See Harden v. Superior Court, 44 Cal.2d 630, 641 [284 P.2d 9], and eases cited.)

Section 2 of the Los Angeles County Flood Control Act expressly authorizes the district to ‘1 construct, maintain and operate,” the drains here involved. (West’s, Wat. Code-Appendix, § 28.2, 1 Leering’s Wat. Code, Act 4463, § 2.) In doing so it is exercising the police power of the state. (House v. Los Angeles County Flood Control Hist., 25 Cal.2d 384, 392 [153 P.2d 950]; O’Hara v. Los Angeles County Flood etc.

Hist., 19 Cal.2d 61, 64 [119 P.2d 23].) By insisting that Edison is obligated to relocate its facilities at its own expense, the district is not seeking to exercise an implied authority to impose additional burdens upon Edison, but is relying on the claimed existence of obligations that arose when Edison accepted its various franchises. (See City of San Antonio v. San Antonio St. Ry. Co., 15 Tex. Civ. App. 1 [39 S.W. 136, 139] ; New Orleans Gaslight Co. v.

Drainage Commission of New Orleans, 111 La. 838 [35 So. 929, 933], aff’d, 197 U.S. 453 [25 S.Ct. 471, 49 L.Ed. 831].) If, as the district contends, Edison accepted its franchise rights in public streets subject to implied obligations to relocate its facilities at its own expense when necessary to make way for proper governmental uses of the street, there was no need expressly to authorize the district to impose such obligations, for Edison had already assumed them. Edison contends, however, that the 1953 amendment to

section 16 of the Los Angeles County Flood Control Act provides for the payment of its relocation costs by the district.

The amendment, which follows the act’s enumeration of the powers of the board of supervisors of the district, states, “provided, however, that nothing in this act contained shall be deemed to authorize said district in exercising any of its powers to take, damage or destroy any property or to require the removal, relocation, alteration or destruction of any bridge, railroad, wire line, pipeline, facility or other structure unless just compensation therefor be first made, in the manner and to the extent required by the Constitution of the United States and the Constitution of California.” (Stats. 1953, ch. 1139, p. 2635, § 1.) This provision cannot reasonably be interpreted, as Edison contends, to mean that compensation is to be made in the manner and to the extent that would be required if the constitutional provisions required compensation.

It clearly provides for compensation only as “required” by those provisions. Had the Legislature intended that the district should go beyond constitutional requirements in making compensation it is reasonable to assume that it would have adopted language similar to that found in many other flood control acts adopted before, after, and contemporaneously with the 1953 amendment.

For example the Marin County Flood Control and Water Conservation District Act provides that the district shall “in addition to the damage for the taking, injury, or destruction of property, also pay the cost of removal, reconstruction or relocation of any structure, railways, mains, pipes, conduits, wires, cable, poles, of any public utility which is required to be moved to a new location. . . .” (Stats. 1953, eh. 666, p. 1915, 1919; West, Water Code-Appendix, § 68-5 (13); 1 Deering’s Wat.

Code, Act 4599, subd. 13.) It is true that if the amendment does no more than require compliance with the state and federal Constitutions, its enactment was unnecessary, and given the Legislature’s awareness of the problem as evidenced by provisions of other flood control acts enacted at the same session, it is at least dubious that by expressly reaffirming the district’s constitutional obligations, it was intended by implication to negative others that might also exist.

Had the Legislature in 1953 clearly not wanted the district to pay relocation expenses, it could have expressed this intent also more clearly than by merely reaffirming the district’s constitutional obligations. Nevertheless, the fact remains that the plain language of the 1953 amendment provides for payment only to the “extent required” by the constitutional provisions, and if it is anything more than an admonition to obey the constitutions, it constitutes legislative recognition that the district is not obligated to pay for utility relocations unless constitutional provisions so require. Edison contends that

section 15 of the act grants the district a franchise to use the public streets and that therefore its rights therein are no greater than those of any other franchise holder and, accordingly, that the later user must bear the costs of relocating the earlier user’s facilities. Essentially the same contention was answered adversely to Edison’s position in the Southern California Gas Company ease where we held that a franchise exercised by a city in its governmental capacity is not subordinate to a prior franchise granted to a public utility. (Southern Calif. Gas Co. v.

Los Angeles, supra, 50 Cal.2d 713, 718-719.) Edison contends that the express terms of the Franchise Act of 1937 define its obligation to relocate its facilities at its own expense and that as to franchises granted pursuant to that act any other similar obligations are excluded by clear implication. We rejected a similar contention based on the maxim expressio unius exclusio alterius est in the Southern California Gas Company case, and although there are some differences between the franchise provisions involved, the rule of strict construction of public grants in the public interest (.Knoxville Water Co. v.

Knoxville, 200 U.S. 22, 33-34 [26 S.Ct. 224, 50 L.Ed. 353] ; City of Sacramento v. Pacific Gas & Electric Co., 173 Cal. 787, 791 [161 P. 978] ; County of Los Angeles v. Southern Calif. Tel. Co., 32 Cal.2d 378, 384 [196 P.2d 773] ; Civ. Code, § 1069) compels the same conclusion here. As in that case most of the provisions relied on as excluding any implied obligations may reasonably be interpreted as no more than partial expressions of common-law rights and obligations inserted out of an abundance of caution or by way of example only. It is true that

section 6297 of the Public Utilities Code may go beyond a restatement of the common-law rule by requiring the utility to remove rather than merely relocate its facilities to make way for public travel, but if it does so, a point we need not decide, it supplies an additional reason why the maxim expressio unius does not apply. Had the statute referred only to removal it might cast doubt on the right to relocate instead when relocation would be sufficient to subserve the public interest. There was thus a special reason for mentioning relocation for the specified purposes in

section 6297, and it may not therefore be inferred that relocation was included to exclude by implication obligations to relocate for other purposes. (City of Lexington v. Commercial Bank, 130 Mo.App. 687 [108 S.W. 1095, 1096].) In short, here as in the Los Angeles Gas Company case, the enumeration of what were considered to be the most important of the utilities’ obligations cannot reasonably be interpreted as an ‘ ‘ express direction of the Legislature” passing the utilities’ other common-law obligations over to the taxpayer. (Transit Commission v. Long Island R.

Co., 253 N.Y. 345 [171 N.E. 565, 568]; New York City Tunnel Authority v. Consolidated Edison Co., 295 N.Y. 467 [68 N.E.2d 445, 448-449]; St. Helena v. San Francisco etc. Ry., 24 Cal.App. 71, 78 [140 P. 600, 605] ; County Court v. White, 79 W.Va. 475 [91 S.E. 350, 352, L.11.A. 1917D 660] ; Peoples Gas Light & Coke Co. v. City of Chicago, 413 111. 457 [109 N.E.2d 777, 787]; Nicholas Di Menna & Sons v.

City of New York, 114 N.Y.S.2d 347, 350.) No contention is made that the provisions of any of the franchises granted to Edison other than pursuant to the 1937 Act are more favorable to its position than those considered above, and accordingly it is unnecessary to consider such other franchises separately. The judgment is reversed with directions to the trial court to enter judgment for the district declaring its rights in accord with the views herein expressed. Gibson, C. J., Shenk, J., and Spence, J., concurred. McComb, J., dissented. "The grantee of a franchise under this

chapter shall construct, install, and maintain all pipes, conduits, poles, wires, and appurtenances in accordance and in conformity with all of the ordinances and rules adopted by the legislative body of the municipality in the exercise of its police powers and not in conflict with the paramount authority of the State, and, as to state highways, subject to the laws relating to the location and maintenance of such facilities therein.” (Pub. Util.

Code, § 6294.) ''The grantee shall remove or relocate without expense to the municipality any facilities installed, used, and maintained under the franchise if and when made necessary by any lawful change of grade, alignment, or width of any public street, way, alley, or place, including the eon-structure of any subway or viaduct, by the municipality.” (Pub. Util. Code, § 6297.)