EAST BAY REGIONAL PARK DISTRICT - PRE-ANNEXATION AGMT

-306 - 225: PACIFIC REPORTER the county did not own the fee, but wh were dedicated to public use in the ordin and usual way. [8] Thus, in so far as it concerns the p lit highways over which the franchises w granted, the county had no property to to and these highways became public streets 'the city of Oakland upon the annexation the territory where they were located, least when so declared to be by the. city thorities_ In any event, the entire juris tion and control over such highways for t benefit of the state was thenceforth impos in the city, and all jurisdiction of the co ty in respect thereto ceased with the anne tion. (I] The right which the grantee of s str railroad franchise obtains is more than t mere right to operate a railroad. As sa by Mr. Justice Shaw in San Frandsco, et Ry. Co. v. Scott, 142 Cal. 222, 228, ?5 Pa `675, 5b1: "The right which a street railroad obta' from the city to lay it~a track and operate i road on a street, on the contrary, is the mo valuable part of its franchise. It carries t obligation to serve the public in the use of street, and is in furtherance of the origin use." The. state has been zealous to insure tha -this obligation to serve the public in the ua of the street shall be protected and enforce by the public agency having .control over th streets. All these franchises were condition ed upon this power of supervision and con trol, and, as the highways covered by then franchises are the property of the state, th state is interested in enforcing the obliga tions of service to the public under the fran chisel. (8, 9] The gross percentage charge enacted under the franchises is in the nature of a toll or rental for the use of the streets cov- ered by the franchises. In Tulare County v. City of Dinuba, 188 Cal. 664, 670, 206 Pac. 983, 985, the Supreme Court say: "The gross receipt charge under the Brough- ton Act is neither a taa nor a license, but is obviously a toll or charge, which the holder of the franchise undertakes to pay as part of the consideration, for the privilege of using the avenues and highways occupied by the public utility." Primarily this charge would go to the ~ state as the o~cner of the highway. But the state has chosen to award it to the public agency upon which is imposed the burden I of enforcing the obligations under the fran- j chile. ~+ The act of 1889 (Stats. 1889, p. 353) pro- vides that when the annexation is complete the annexed territory shall be "to all intents i i and purposes a part of such municipal cor- poration." This language is broad enough to support the conclusion that the supervi- (Cal' ich lion and control of all public highways with- ary in the annexed territory passes from the county to the municipality. As the Percent- ub- age upon the gross receipts collected under ere the franchises is a fee for the supervision se, and .control of the street railroads operat- of ing on the public streets, it is reasonable to of assume that the state intended that this per- at tentage should be paid to its new agency. su- [10] The question of the impairment o: the dic- obligation of a contract is not involved. The he franchises were all granted after the enact- ed -went of the annexation statute and must be nn- deemed to have been made in contemplation xa- of its terms. The state; through the an- neaation statute, has transferred the super- eet vision and control of the streets from the he county to the city. This transfer carries id 'with it the right to collect charges for the c., use of the streets. An assignment of the c. rights of the grantor has thus been effected by operation of law. This result is wholly ins consistent with the annexation statute in to contemplation of which the contracts were at executed. he It is also argued that the county has lost the whatever claim it might assert to the ~ centages through the acquiescence of itspof- ficials in the collection oP payments by the city over a period of eleven years. .\Ve do t not favor the doctrine of acquiescence, or e estoppel, as applied to a situation of this d kind. There is much respectable authority e holding that public officials and public" agen- ties cannot alienate public rights by mere failure. to assert such rights in behalf of the e public which they represent. [it] It is also said that the doctrine of de- _ Partmental construction should be applied and People v. Town of Antioch, 17 Cal. App. 751, 757, 121 Pac. 945, is cited. But, inas- much as the question before us demands an interpretation of the legislative intention in • the enactment of the statute involved, it ' would be unreasonable to hold that the Leg- islature is bound by the interpretation pla~- ed upon its acts by the officials of one coun- ty without, at least, some showing that such interpretation was brought to the notice of the Legislature either directly or indirectly. We conclude that when the franchises were granted the county was merely acting as the agent of the state ; that the gross re- ceipts charge was enacted as a toll for the use of the state's public Iighways; that when the supervision and control of these highways vas transferred to a new state agency, it carried the benefits as well as the burdens, including the right to collect and retain these charges. Accordingly, the coun- ty has no enforceable property right grow- ing out of the franchises. Judgment affirmed. ~Veconcur: LA.NGDON, P. J.; STIIRTE- VANT, J.