I concur in the foregoing opinion written by Judge GILBERT. I am also of the opinion that the facts alleged in the complaint charge the citj'- and county of'San Francisco with acts that will simply amount to a breach of contract.
Section 12 of the ordinance under which the predecessors of complainant acquired the right to operate street railroads over the streets mentioned in the ordinance provides:
“Said railway company is iiereby required to file in tlie office of the clerk of the hoard of supervisors of the city and county of San Francisco an acceptance in writing of the provisions of this order, under its corporate seal, signed by its president and countersigned by its secretary, and thereupon the provisions of this order shall be taken and deemed to he a contract between said ■company and said city and county. Unless such acceptance be filed within ten days after the passage of this order, this order shall become and remain null and void.”
. It is alleged in the bill of complaint that the predecessors of complainant accepted in writing the provisions of the order, and thereafter performed all the conditions required by the ordinance or by law to be performed. The ordinance thereupon became a contract between the city and county of San Francisco and the predecessors of the complainant. One of the conditions of this contract was specified in section 5 of the ordinance that it would be lawful for the board of supervisors of the city and county of San Francisco to grant to one other corporation, and no more, the right to use either of the streets mentioned in the ordinance for a distance of five blocks, and no more, upon the terms and conditions specified in the 499th section of the Civil Code of the state. Section 499 of the Civil Code provided that corporations may be permitted to use the same streets if each pay an ■equal portion of the construction of the track, but in no case must two railroad corporations occupy and use the same street for a distance of more than five blocks. The complainant alleges that the city and county of San Francisco is proceeding in violation of the terms of this contract to construct and operate a municipal railroad along the streets occupied by the complainant. The facts alleged amount to an *513allegation that the city and county of San Francisco is about to do an act that will amount to a breach of contract. There is no law of the state impairing the obligation of the contract. The law of the state is otherwise. It maintains the validity and terms of the contract. In the recent case of Shawnee Sewerage & Dr. Co. v. Stearns, 220 U. S. 462, 31 Sup. Ct. 452, 55 L. Ed. 544, the Supreme Court said with respect to the violation of a similar ordinance :
“The breach of a contract is neither confiscation of property nor a taking of property without due process of law.”