datory or as meaning anything different from what the language itself sets forth in clear and unambiguous terms, it would seem to be entirely unnecessary to discuss any of them.

"In determining the county to which the cause should be transferred, I take into consideration the fact that it would be most inconvenient for the attorneys and witnesses for plaintiff to have to go to either Sierra or Santa Clara county, because of the distance, etc., that Sutter, the neighboring county has her hands full of similar cases, as I am informed; and I have decided that Sacramento county would probably be more favorably located, taking everything into consideration, than almost any other county within reasonable distance of Yuba. The motion for a change of venue to a county other than the plaintiff is granted; that part of the motion relating to either Sierra or Santa Clara county is denied, and the superior court in and for the county of Sacramento is hereby designated as the court to which the above-named action is transferred for trial.

"Dated this 24th day of December, 1908.

"EUGENE P. MCDANIEL, Judge." Defendants have filed no brief. We discover no point in plaintiff's brief which is not satisfactorily disposed of by the opinion of Judge McDaniel, except the point made by plaintiff that section 394, Code of Civil Procedure, is violative of section 16, article XII, and subdivisions 3 and 4, section 25, article IV, of the constitution.

Section 16, article XII, reads as follows: "Sec. 16. A corporation or association may be sued in the county where the contract is made or is to be performed, or where the obligation or liability arises, or the breach occurs; or in the county where the principal place of business of such corporation is situated, subject to the power of the court to change the place of trial as in other cases." [6] It seems to us that the clause, "subject to the power of the court to change the place of trial as in other cases", is authority for the court to look to section 394, Code of Civil Procedure, as providing for some of the "other cases" referred to in the constitution in which the change of the place of trial is provided for. [7] The further point that section 394 is obnoxious to the provisions of the constitution prohibiting special legislation, "regulating the practice of courts of justice" and "providing for changing the venue" of actions, because according privileges to corporations doing business without the county where the action is commenced not accorded to corporations doing business within the county, is not, in our opinion, well taken. This discrimination is found in other sections where the right to have the place of trial changed is placed upon the distinct ground that the defendant resides in a county other than the county in which the action is commenced, and this although had the defendant been a resident of the latter county he could not have the venue changed. Such legislation has never been regarded as in any just sense special legislation within the meaning of the inhibitory provisions of the constitution.

The order is affirmed.

We concur:

BURNETT, J.

HART, J.

CHIPMAN, P. J.

MINUTES.

FIRST DISTRICT.

San Francisco, December 28, 1909. 707--Estate of Gregory. The orders appealed from are affirmed. Kerrigan. J. We concur: Hall, J.; Cooper, P. J. 765-Wilson v. Crabtree etc. et al. By the Count. Upon stipulation of the parties herein appearing therefor. it is hereby ordered that the above entitled cause be submitted as of this date for determination and division. Cooper, P. J. Dated December 28, 1909.

SECOND DISTRICT.

Los Angeles, December 22, 1909. 725-Klein v. A. T. & S. F. Ry. Co. Judgment and order affirmed. Allen, P. J. We concur: Shaw. J.; Taggart, J.

781-Jeffries Co. v. Superior Court. By the Court. An application for a writ of review having been filed in the above entitled matter, it is ordered that petitioner give to defendants notice of the hearing of said application at 10 o'clock a. m. on Monday, January 3, 1910, which date is the time fixed for the hearing thereof.

Los Angeles, December 23, 1909. 782--Vernon v. Justice's Court. By

FIRST

the Court. Petition for writ of prohibition denied.

Los Angeles, December 27, 1909. Court met at 10 a. m. Present: Allen. P. J.; Shaw, J.: Taggart, J.; Little, deputy clerk; Crumrine, reporter: Morris, bailiff.

784-Franklin et al. v. Meadows. Sheriff etc. et al. G. I. P. Shaw, Esq., appeared on behalf of respondents and presented motion to dismiss appeal taken herein. It appearing to the court that the appeal taken herein was taken to this court when such appeal should have been taken to the Supreme Court. it is ordered that said case be, and the same is hereby transferred to the Supreme Court of the State of California.

WALKER & COOPER

CERTIFIED PUBLIC

ACCOUNTANTS

401 Monadnock Building, S. F. Phone: Douglas 5173

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IN THE

United States Circuit Court of Appeals

FOR THE NINTH CIRCUIT.

THE SUNSET TELEPHONE AND TELEGRAPH COMPANY, a Corporation, Appellant, vs. THE CITY OF POMONA, a Municipal Corporation, et al., Appellees. Upon appeal from the United States Circuit Court, for the Southern District of California, Southern Division.

Syllabus: A telephone company doing an interstate business is one system and all its lines are agencies in the transaction of interstate commerce, just as each rail and tie of an interstate railroad constitute an integral part of its system; and no distinction arises because its poles and wires are used also for intrastate business.

Section 536 of the Civil Code of California applies to telephone corporations, and when any such a corporation erects its lines under this section and maintains and operates the same, a contract is thereby created between it and the state which may not be impaired by any subsequent legislation; nor can it be compelled to apply for municipal franchises, but is subject to all reasonable police regulations.

Telephone and telegraph lines doing an interstate business are excepted from the statutes of California providing for certain corporations to acquire franchises from municipalities.

PILLSBURY, MADISON & SUTRO, Attorneys for Appellant.

R. G. LOUCKS, City Attorney, and J. PERRY WOOD, as amicus curiae, for Appellees.

Before GILBERT, Ross, and MORROW, Circuit Judges. Ross, Circuit Judge, delivered the opinion of the court: The question presented on this appeal is whether the appellant, a California corporation, has the right to maintain its telephone poles and wires in the streets of Pomona, which is a city within the state, of the fifth class, without

obtaining from the city a franchise therefor. No question is presented by the record respecting the right of the city to make a charge against the company for the use of those portions of the streets actually occupied by it.

A controversy between the company and the city and its officers over the question stated having arisen, and the city authorities having commenced to cut down the poles of the company, the suit was commenced by it to secure injunctive relief, resulting, on the final hearing, in a decree dismissing the appellant's bill of complaint, from which decree the present appeal comes.

While, in the court below, the complainant's alleged rights were in part based upon the act of Congress of July 24, 1866, entitled "An Act to aid in the construction of telegraph lines and to secure to the Government the use of the same for postal, military and other purposes" (14 Stats. 221), which act entered into the consideration of the court below and is much discussed on the present appeal by counsel for the ap'pellees, no right growing out of that act is here asserted en the part of the appellant, and hence we omit all reference to it.

The appellant here bases its alleged rights upon certain provisions of the statutes of the state of California, and upon a claimed contract between it and the city, arising out of: 1. 1. The construction, maintenance and operation of its plant in Pomona since August 8, 1898, and, more particularly. the maintenance, operation and additional construction of its telephone system between the years 1898 and 1902 by and with the acquiescence and consent and under the direc tion of the city, at a cost of more than $10,000.00; 2. The change and removal, in the year 1901, by the appellant, of its poles and wires from Second street, at the request of the city, and their reconstruction on others of its streets with its approval and under its direction, at a cost to the appellant of more than $6,716.48; 3. The extension of the appellant's telephone system by the alleged permission of the city under a resolution thereof of date of October 23, 1903, at a cost of about $1,500.00, and 4. The assessment and taxation by the city to the appellant of a franchise for several years preced

ing the commencement of this suit, including the years 1904-5, and 1905-6, and the acceptance and use by the city of two free telephones from the appellant for more than three years prior to and after the commencement of the suit.

The appellant was incorporated in April, 1889, for the purpose of doing a general telephone and telegraph business in the states of California, Oregon, and Nevada, and the then territories of Washington, Utah, and Arizona, and elsewhere. Prior to its incorporation, to wit, on the 8th day of August, 1888, the city of Pomona passed an ordinance, numbered 30, granting to another and distinct corporation, called The Sunset Telephone-Telegraph Company, a franchise to erect telephone poles and wires along the public streets of the city. for a period of ten years, and, in the month of May of the following year, that company transferred to the appellant all of its property, including whatever rights it acquired under that ordinance. Since the month of May, 1889, the appellant has carried on a general telephone business throughout the state of California, including the city of Pomona, and in many parts of Oregon, Washington, and Nevada, its lines of poles and wires in Pomona being an integral part of its system, and its subscribers and all other persons using its system in any place in the states or territories mentioned, holding conversations from time to time by telephone with other subscribers and persons in other cities and places reached by the said system. On the 8th day of August, 1898, the term of the franchise granted by the aforesaid ordinance numbered 30 to the appellant's aforesaid assignor expired by limitation, notwithstanding which the appellant, accord ing to the record, continued to construct, maintain and operate its telephone system in Pomona without question on the part of the city as to its right to use the public streets and highways therein for its poles and wires until February 2 1899, when the Board of Trustees of the city for the first time notified the appellant that it had "no franchise, privilege, or other legal right in the city". The record shows subsequent extensions and changes of the appellant's poles and wires in the city, made with the consent, and, in some instances, at the suggestion of the city, but the contentions