We are of the opinion that whatever right was acquired by the county of Tulare to a portion of the gross receipts of the defendant corporation by virtue of this franchise remains unimpaired.

IS THE BROUGHTON ACT VOID FOR INDEFINITENESS!

We come next to appellant's second point, that the provision for paying to the county of Tulare a percentage of the gross annual receipts "arising from the use, operation or possession," of the easement in the public highways, is so obscure and uncertain as to be incapable of ascertainment.

Without doubt, the Broughton Act contains inconsisten、 cies and uncertainties, particularly in its enlarged application to counties. Earlier legislation along the same line was confined to strictly municipal corporations, and was enacted at a period when the public utilities in the nature of street railways and gas and electric systems were generally confined in their operations to the single municipal territory.

At the present time such agencies commonly extend beyond the municipal limits, and frequently cover several counties with their lines and distributing systems. In the case before us the defendant corporation has several electrical generating plants distributed over three or four counties, and with its lines of poles and wires extending in connecting systems throughout Tulare, Fresno, Kern, and perhaps other counties, with franchises over the public highways of each of said counties, and its electric current passing back and forth indiscriminately from one or the other of its power-houses over the entire system.

It may happen that a power-house is located many miles, and across intervening counties, from the territory of distribution to the consumer. Its conduit line may extend through an entire county, over a franchise for the use of a public highway, without delivery to a single customer. On the other hand, such generating plant may be within a few rods of the county line and use only so much of a county franchise as will carry its electric current to the adjoining county. Such generating plant may be just outside a municipal corporation, and distribute its entire

APPLICATION for revocation of an order of disbarment from practice of the law. Denied.

The facts are stated in the opinion of the court.

George D. Collins, in pro. per., for Petitioner.

Wm. Denman and C. J. Goodell for Bar Association.

THE COURT.-The petitioner herein applies for an order vacating and setting aside a former order of this court made on July 19, 1909, striking from the roll of attorneys and counselors the name of said petitioner. It appears from the face of the moving papers and also of the records of this court that the action of the court in making said order was taken upon the receipt by it of a certified copy of the record of the conviction of the petitioner of a felony involving moral turpitude; and it also affirmatively appears that said action was taken by the court and said order made by it ex parte and without the service upon the petitioner of any order to show cause, citation, or other process or notice. The present contention of the petitioner which forms the ground of his said motion is that the said order thus made was and ever since has been and still is void; that this court did not acquire or have jurisdiction to make said order and that by the making of the same without notice or other process served upon him he has been deprived of his liberty and property without due process of law and has been denied the equal protection of the laws in violation of the federal constitution.

The provisions of the Code of Civil Procedure pursuant to which the order thus assailed was made are sections 287, 288, 289, and 299 thereof, which, when the order was made, read, in part, as follows:

"Sec. 287. An attorney and counselor may be removed or suspended by the supreme court. . . for either of the following causes, arising after his admission to practice:

"1. His conviction of a felony or misdemeanor involving moral turpitude, in which case the record of conviction shall be conclusive evidence."

"Sec. 288. In case of the conviction of an attorney or counselor of a felony or misdemeanor involving moral tur

same way. The legislature evidently intended to make no discrimination. It will be seen at a glance that it is utterly impossible to give this act any reasonable or sensible construction as applied to railroads. If it means that the company must pay at least two per cent of its entire gross earnings . . . to each municipality, over whose streets it may be built, and to each county, whose highways it may cross, the railway company, in many instances, will be compelled to pay more than its receipts for the right to build its road over the highways and through the cities along its way. If, as some of the counsel suggest, the percentage should be computed only upon the gross receipts of that part of the road located upon the streets of the city, or across the highways, as the case may be, then we are met by the fact that there is no method provided (if it is possible to suggest one), by which the actual gross receipts of that particular part of the road can be ascertained. Such receipts will not necessarily be in the same proportion to the entire earnings as the length of the road upon the highways or streets may be to the entire length of such railroad. Travel may be greater or less upon one part of the road than upon another. Such a rule would be an arbitrary one, which the act has not prescribed, and which will not comply with its terms."

Other inconsistencies which the court deems irreconcilable with the spirit and purpose of the act are pointed out in this opinion, but we do not consider them important to the issue before us. It must be conceded that all these difficulties in fixing the amount to be charged to the holder of the franchise on a given and limited part of the highways used by the public utility, with others not there discussed, exist in this case. The gross receipts of this defendant accrue from two distinct agencies. One is the generating plants or power-houses of the company, located in three separate counties; the other is the distributing system, consisting of poles and wires extending throughout the three counties, partly upon and over streets and highways and covered by various county and municipal franchises, and partly over private easements owned by the company.

[5] The corporation's gross receipts, to refer to the language of the act, arise from "the use, operation or pos

188 Cal. 43

session," not alone of these franchises over the streets and highways, but likewise from the use, operation, or possession of the power-houses and private rights of way. The two last named are not subject to any franchise charges and the county or municipality is not entitled under the law to any part of the gross receipts attributable to these privately owned parts of the system. The percentage payment is not a tax upon the property of the corporation, nor a license charge for the privilege of operating its business. It is a compensation for the use of the portions of the highway covered by the franchise easement, and it is limited to such percentage of the total gross receipts as can be shown to have arisen from the use of the franchise.

It can no more be said that the receipts from electricity sold in the county of Tulare arise from the possession or use of the highways covered by the county franchise than from the possession or use of the private rights of way, or from the use of the connecting distributing lines through which the electric current is received from an adjoining county.

The absurdity of the position that any integral part of an electric distributing system like this is entitled to credit for the whole of the earnings from deliveries and sales in a given county or municipality when a large part of such service is over parts of the system not subject to such franchise permit may be shown by various illustrations.

Let us suppose that the only part of the system which is in Tulare County consists of a main transmission line upon a single highway traversing the entire width of the county, delivering no part of the current in that county, but carrying it for distribution and sale to an adjoining county. On the suggested theory, Tulare County obviously could not collect a cent of gross earnings because there would be none in that county, yet, all of the electricity would be supplied through this main line. Assuming, again, that the electric supply was brought to the Tulare County border by a transmission line wholly without the county, and the entire current distributed to consumers in Tulare County through a system of wires wholly on private rights of way, clearly neither county could claim any gross receipts, for in the one county no revenue would arise

from the conduit on the highway, and in the other no franchise would be owned or exercised.

If the electric plant is all within the borders of a single municipality and entirely distributed from transmission lines covered by the franchise no complications can arise. The entire proportion of the earnings attributable to the transmission and delivery of electricity belongs to the gross receipts from which the two per cent shall be paid. Immediately the operation of the business passes such limitation the complications begin, if we treat the separate franchises as controlling the income from all electricity passing through the part of the system covered by such franchise. We may have a condition where the transmission line merely crossing a street from the power-house, under a franchise, to connect with privately owned rights of way over the rest of the county, would claim the same revenue from such franchise, as it would where the entire distributing system was maintained and operated over public highways.

A PRACTICAL INTERPRETATION POSSIBLE. Notwithstanding the difficulties suggested we are of the opinion that there is an entirely practicable and consistent interpretation of this provision of the act which will permit a fair determination and distribution of the prescribed percentage of receipts arising from the use, operation, or possession of each franchise utilized by the distributing sys

tem.

[6] It must be conceded that the purpose of the act was to impose only a two per cent charge upon the gross receipts arising from the entire franchise rights enjoyed in all the highways covered by the system, whether in one or several counties or municipalities. When the company or corporation has paid two per cent of all its earnings properly attributable to all its franchises whether covering one or more counties, it has fulfilled its obligation. It, of course, cannot concern such corporation how this amount is distributed to the various municipalities, so long as it is released from further liability. The real issue is as to the several rights of the municipalities in sharing the payments. The state is at liberty to make this distribution upon any reasonable basis it sees fit to adopt. It will be