County of Contra Costa v. American Toll Bridge Co. ( 1937 )

EDMONDS, J., Concurring.

I concur in the judgment upon the ground that the toll bridge company, having accepted the benefits of the franchise granted by the ordinance of Contra Costa County and still continuing to do so, is estopped from challenging its provisions. The company cannot claim both under and against the enactment by which the franchise was created and now exists. It is a contract between the corporation and the county. “One cannot in the same proceeding both assail a statute and rely upon it,” (Hurley v. Commissioner of Fisheries, 257 U. S. 223 [42 Sup. C.t. 83, 66 L. Ed. 206 ]); nor can he claim under a franchise and at the same time repudiate some of its provisions. (Crittenden County v. McConnell, 237 Ky. 806 [36 S. W. (2d) 627].) The appellant acquired from the original grantee of the franchise the rights which it enjoys and cannot now question the validity of the challenged requirement. (State v. Portland General Elec. Co., 52 Or. 502 [95 Pac. 722, 98 Pac. 160].)

Rehearing denied.