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y % �t MEMORANDUM... ---�" To: CLERK OF THE COUNCIL Date AUGUST 17,_1966 From: CITY ATTORNEY Subject: TELEPHONE COMPANY FRANCHISE BOND The bond to which you make reference in your inquiry is but an incident to the non - exclusive franchise granted to the Pacific Telephone & Telegraph Co. by the City of Santa Ana in 1932. The validity or efficacy of said bond will, accordingly, depend upon the status of said franchise. The latest judicial pronouncement upon the subject of telephone franchises is to be found in the case, Pacific T. & T. Co. v. City and County of San Francisco (1962), 17 Cal. Rptr. 687, wherein the court noted, inter alia, as follows: . .However, as said in People v. Willert (1939) 37 Cal.App.2d Supp, 729, 734, 93 P.2d 872, 875: 'It is nevertheless true that the organic law is subject to and controlled by conflicting state legislative action unless the subject matter is a "municipal Affair" as those words are used in sections 6 and 8, Art. XI.' Telephone communication is not a municipal affair. That the decision in Oro Electric Corp. supra, has no bearing on the subject we are considering is shown by Pacific Telephone & Telegraph Co. v. City of Los Angeles, supra, 44 Cal.2d 272, 281, 282 P.2d 36, 41, where the court pointed out that section 19 did not confer on cities the power to grant telephone franchises and that 'the right tQ exist as a telephone corporation and conduct a telephone business is a matter of statewide concern and not a municipal affair.'" The court continues by pointing out the general rule in most unambiguous terms: . ". (A) city has no power to grant franchises in a matter of state concern." and continues: "In City of Petaluma v. Pacific Tel. & Tel. Co. (1955) 44 Cal.2d 284, 288, 282 P.2d 43, 46, the court held: 'The words "along and upon any public road or highway" in section 536 (Civil Code, now section 7901, Public Utilities Code) as originally enacted were intended to mean all public highways in the state, including city streets, Western Union Telegraph Co. v. Hopkins, 160 Cal. 106, 118 -119, 116 P. 557 .' (Emphasis added.) Moreover, the opinion on the prior appeal so holds, as we have hereinbefore shown." Section 7901 of the Public Utilities Code, referred to above, reads as follows: "Telegraph or telephone corporations may construct lines of telegraph or telephone lines along and upon any public road or highway, along or across any of the waters or lands within this State, and may erect poles, posts, piers, or abutments for supporting the insulators, wires,-and other necessary fixtures of their lines, in such manner and at uch points as not to incommode the public use of the road or highway or.fnterrupt the navigation of the waters."