224 U.S. Argument for Appellee. The repeal of § 536 of the Civil Code as reënacted in 1905 by the amendment of § 19 of Art. XI of the constitution neither impairs the obligation of any contract of the company arising under said § 536, nor assails any of its vested rights. Under § 327, Political Code, any statute may be repealed at any time except when it is otherwise provided therein. No vested contractual rights can arise in the face of such provisions. Shields v. Ohio, 95 U. S. 319; Gas Light Co. v. Hamilton, 146 U. S. 258; San Antonio Traction Co. v. Altgelt, 200 U. S. 304; Bienville Water Supply Co. v. Mobile, 186 U. S. 212; and see also St. Louis v. West. Un. Tel. Co., 149 U. S. 465; Postal Tel. Co. v. Baltimore, 79 Maryland, 502, 510; S. C., 156 U. S. 210; Memphis v. Postal Tel. Co., 145 Fed. Rep. 602; Blair v. Chicago, 201 U. S. 200. Again the lines destroyed or threatened by the City of Pomona were constructed or maintained wrongfully and without competent authority. Even though § 536 as reënacted in 1905 continued in full force until repealed in October, 1911, the continued maintenance of these lines wrongfully constructed or maintained in the first instance would give rise to no contractual right authorizing their maintenance for all time to come. The elements going to make up a contract are entirely wanting. Mr. Alfred Sutro, with whom Mr. E. S. Pillsbury was on the brief, for appellee: Appellee has the right, under § 536 of the Civil Code of California, as reënacted in 1905, to use the streets of the City of Pomona for its telephone system without a special franchise therefor from the city. Davis v. Pacific Tel. Co., 127 California, 312, held that "telegraph” embraced within its meaning the narrower word "telephone," but Sunset Telephone Co. v. Pasadena, 118 Pac. Rep. 796, held otherwise. VOL. CCXXIV-22 Argument for Appellee. 224 U.S. Section 536 of the Civil Code is a grant of right by the State to telephone and telegraph corporations to use the highways of the State for their lines. West. Un. Tel. Co. v. Hopkins, 116 Pac. Rep. 557; West. Un. Tel. Co. v. Los Angeles Co., 116 Pac. Rep. 564; Postal Tel. Co. v. Los Angeles Co., 116 Pac. Rep. 566. The word "highways" in § 536 includes the streets of cities and towns in California, Political Code, § 2618; West. Un. Tel. Co. v. Visalia, 149 California, 744, 746; Niles v. Los Angeles, 125 California, 572; Smith v. San Luis Obispo, 95 California, 463, 469. The object of such legislation as is contained in § 536 is to foster and promote the growth of telegraph and telephone systems. They are recognized as an important element in the business and social life of the day. Abbott v. Duluth, 104 Fed. Rep. 833; S. C., 117 Fed. Rep. 137; Duluth v. Telephone Co., 87 N. W. Rep. 1127; N. W. Tel. Exch. Co. v. Minneapolis, 86 N. W. Rep. 69; Wichita v. Old Colony Trust Co., 132 Fed. Rep. 641; Wichita v. Missouri Telephone Co., 78 Pac. Rep. 886; Rocky Mountain Bell Tel. Co. v. Red Lodge, 76 Pac. Rep. 758; Chamberlin v. Iowa Tel. Co., 93 N. W. Rep. 596; State v. Nebraska Telephone Co., 103 N. W. Rep. 120; Wisconsin Telephone Co. v. Sheboygan, 86 N. W. Rep. 657; S. C., 90 N. W. Rep. 441; Michigan Telephone Co. v. Benton Harbor, 80 N. W. Rep. 386; Farmer v. Columniana Telephone Co., 74 N. E. Rep. 1078; Carthage v. Central N. Y. Tel. Co., 78 N. E. Rep. 165; Garnett v. Independent Telephone Co., 106 N. Y. S. 3; Texarkana v. Southwestern Tel. Co., 106 S. W. Rep. 915; Missouri River Telephone Co. v. Mitchell, 116 N. W. Rep. 67; Hodges v. West. Un. Tel. Co., 18 So. Rep. 84. Section 536 is a general law of the State and is effective in Pomona. The Pasedena Case, 118 Pac. Rep. 796, 803; Ex parte Braum, 141 California, 204, 214. The conclusion of the Supreme Court, in the Pasadena 224 U.S. Argument for Appellee. Case, that § 536 confers no rights upon telegraph or telephone companies, so far as the streets of Pasadena are concerned, is inapplicable to Pomona, which is a city of the fifth class. Municipal Corp. Act, Cal. Stats., 1883, p. 93; Fragley v. Phelan, 126 California, 383, 387; Ex parte Helm, 143 California, 553; Dawson v. Superior Court, 13 Cal. App. 582. Section 536 was not repealed by the Franchise Act of 1905, Stats. Cal., 1905, p. 777. The provisions of the Franchise Act of 1905 are not inconsistent with those of § 536, as reënacted in 1905, because § 536 is a grant of franchise, and the Franchise Act of 1905 only provides the method by which franchises must be granted; it contains no delegation of power to grant franchises. Supervisors v. Lackawanna &c., 93 U. S. 619, 624. The power to grant franchises, for the use of the highways in a city, inheres in the State. In re Johnston, 137 California, 115, 122; Thomason v. Ruggles, 69 California, 564; South Pasadena v. L. A. T. Ry. Co., 109 California, 315. The delegation to a municipal corporation of the power to grant franchises must clearly appear, before the right to exercise the power may be asserted. Any reasonable doubt, concerning the existence of the power, is to be resolved against the municipal corporation. See Von Schmidt v. Widber, 105 California, 151; Glass v. Ashbury, 49 California, 571; Wisconsin Tel. Co. v. Sheboygan, 86 N. W. Rep. 657, 661; Water Co. v. Los Angeles, 88 Fed. Rep. 720. The general rule that, where a later statute deals with the same subject-matter as does an earlier one, and in such way as to indicate that the lawmakers intended the later act to be a substitute for the earlier one, the prior statute is held to have been repealed, does not apply to this case as the 1905 Franchise Act does not deal Argument for Appellee. 224 U. S. with the same subject-matter as does § 536. Hess v. Reynolds, 113 U. S. 73, 79; Bank v. Cahn, 79 California, 463, 465; Patterson v. Tatum, 18 Fed. Cas. 1331. Any repeal of § 536 of the Civil Code by the Franchise Act of 1905 could have been only by implication. Such repeals are not favored and are never allowed except in cases of clear and irreconcilable conflict. Supervisors v. Lackawanna R. R. Co., 93 U. S. 619, 624. See also Wodd v. United States, 16 Pet. 341, 362; The Distilled Spirits, 11 Wall. 356, 365; Henderson's Tobacco, 11 Wall. 652; Arthur v. Homer, 96 U. S. 137, 140; Chew Heong v. United States, 112 U. S. 536, 549; Frost v. Wenie, 157 U. S. 46, 58; United States v. Greathouse, 166 U. S. 601, 605; Cope v. Cope, 137 U. S. 682, 686; Wetzell v. Paducah, 117 Fed. Rep. 647; Merrill v. Gorham, 6 California, 41; Soher v. Supervisors, 39 California, 134; Malone v. Bosch, 104 California, 680, 683; Banks v. Yolo Co., 104 California, 238; Thompson v. Supervisors, 111 California, 553, 556; Hilton v. Curry, 124 California, 84; Rowe v. Hibernia Sav. & L. Soc., 134 California, 403, 406. Section 536 of the Civil Code was reenacted at the same session of the legislature and at about the same time that the Franchise Act of 1905 was passed. This circumstance is a strong argument against the repeal by implication of the former by the latter. State v. Board of Commissioners, 85 N. E. Rep. 513, 522; State v. Duncan (Ala.), 50 So. Rep. 265, 266; Stubblefield v. Menzies, 11 Fed. Rep. 268, 276. The Circuit Court erred in concluding that § 536 of the Civil Code was repealed by the Franchise Act of 1905. Judge Gilbert, in his dissenting opinion in the Circuit Court of Appeals, did not follow that conclusion. N. W. Tel. Exch. Co. v. St. Charles, 154 Fed. Rep. 386, does not support the conclusion for which it is cited. Appellants concede that, under § 536 telephone lines doing an interstate business are entitled to use the high 224 U. S. Argument for Appellee. ways of the State, including the streets of Pomona. The lines of the appellee in Pomona are part of a homogeneous interstate telephone system operated by the appellee and extending throughout the State of California and in the States of Nevada, Washington and Oregon. The system in Pomona is a part of the interstate telephone system of the appellee extending throughout the State of California and into many parts of the States of Nevada, Oregon and Washington. United States v. Southern Ry. Co., 164 Fed. Rep. 347, 349; United States v. Pittsburg &c. Ry. Co., 143 Fed. Rep. 360; United States v. Northern Pac. Terminal Co., 144 Fed. Rep. 861; United States v. Great Northern Ry. Co., 145 Fed. Rep. 438. Without excluding interstate telephone lines from its operation, the act of March 22, 1905, would be unconstitutional under the commerce clause. Interstate telephone communications are interstate commerce. Muskogee Telephone Co. v. Hall, 118 Fed. Rep. 382; West. Un. Tel. Co. v. Pendleton, 122 U. S. 347; In re Penn. Telephone Co., 20 Atl. Rep. 846. See also Pasadena v. L. A. T. Ry. Co., 109 California, 315; People v. Craycroft, 11 California, 544. The appellee has the right under § 19 of Art. XL of the constitution of the State of California, as amended October 10, 1911, to use the streets of the City of Pomona for its telephone system without a special franchise therefor from the city. This section has been construed by the Supreme Court of California to be a direct grant, from the State, to the persons therein designated, and a city may not require the persons, to whom the grant is made, to obtain a permit from it, as a condition precedent to the exercise of the right granted by the constitutional provision. See People v. Stephens, 62 California, 209, 235; In re Johnston, 137 California, 115, 119; Denninger v. Recorder's Court &c., |