dissenting:
I respectfully dissent. Because I believe that the framers of Article X, § 1 of the Cortez City Charter and of Article XX, § 4 of the Colorado Constitution could not have intended to require a vote by the electorate before granting a cable television company the right to use the public streets, I would reverse the judgment of the court of appeals. While such grants may be labeled franchises, I believe the vote requirement was intended only to apply to grants of franchises to public utilities.
Recently the United States Supreme Court, upon considering the application of the Copyright Act to home videotaping of copyrighted programs, stated: “In a case like this ... we must be circumspect in construing the scope of rights created by a legislative enactment which never eontem-plated such a calculus of interests.” Sony Corporation of America v. Universal City Studios, Inc., — U.S. -, -, 104 S.Ct. 774, 783, 78 L.Ed.2d 574 (1984). This is sound advice which should be applied in the resolution of this appeal, especially where the imposition of a voting requirement in this situation would serve little public purpose.
When construing a constitutional provision a court should give effect to the intent of the adopters at the time the amendment was adopted. In re Interrogatories Propounded by Senate Concerning House Bill 1078, 189 Colo. 1, 536 P.2d 308 (1975); Board of Education v. Spurlin, 141 Colo. 508, 349 P.2d 357 (1960). Article X, § 1 of the Cortez City Charter (“No franchise shall be granted except upon the vote of the taxpaying electors....”)1 tracks the language of Article XX, § 4 of the Colorado Constitution, added November 4, 1902, which provides in part:
No franchise relating to any street, alley or public place of [a home rule city] shall be granted except upon the vote of the qualified taxpaying electors....
It is difficult to determine the intent of the adopters in 1902, but I believe that the above language was intended to apply only to grants of street franchises to public utilities, and that cable television is not a public utility.
To determine intent, a court should first examine the words used in the constitution and determine their natural and popular meaning. A-B Cattle Co. v. United States, 196 Colo. 539, 589 P.2d 57 (1978); Prior v. Noland, 68 Colo. 263, 188 P. 729 (1920). The word “franchise” has various meanings, both in a legal and popular sense. 12 E. McQuillin, Municipal Corporations § 34.04 (3rd ed. 1970). The majority defines “franchise” as “a special right or privilege granted by a government to an *340individual or corporation — such a right as does not ordinarily belong to citizens in general.” While I do not disagree with this as a general definition, I find it of little use in the present controversy. Governments grant many rights and privileges that do not ordinarily belong to citizens in general. Attorneys are given the right to practice law, and physicians are given the right to practice medicine. Local governments approve the construction of buildings and allow newspapers to be sold from stands on public sidewalks. Clearly, Cortez is not required to submit every such grant to its citizens for approval.
Article XX provides no insight into the meaning intended for the word “franchise,” and therefore, it is necessary to look elsewhere for a definition. In its strictest sense, a franchise is the right granted by the state to individuals to act as a corporation. 12 E. McQuillin, supra, at § 34.04. Section 4, however, pertains only to the granting of franchises relating to any street, alley or public place — commonly called street franchises. To determine what was intended by the adopters in 1902, it is useful to examine the usage of the term “franchise” made by contemporaries of the adopters.
In 1911, John Forest Dillon published the fifth edition of his treatise on municipal corporations. Included in his work was a chapter entitled “Street Franchises.” He introduces the chapter by defining "franchises to use the public streets and highways” as “rights in public streets which are granted in furtherance of public purposes.” J. Dillon, Law of Municipal Corporations § 1210 (5th ed. 1911). “The essential element of a franchise is that it should be a privilege, right, or power which the individual cannot exercise as of right, and which depends for its lawful existence upon a grant from the government, and ... a grant from the State is the foundation of every privilege or right to an individual or corporation to use the city streets for public or quasi-public purposes for individual profit.” Id. Dillon proceeds to define corporations for public or quasi-public purposes as public utilities. He summarizes:
The courts have properly held the term franchise to be applicable to the right to construct, maintain, and operate railroads in the public streets and highways, or water mains and water works, gas pipes and lighting works, and poles and wires for the transmission and distribution of electricity.
Id. (emphasis in original) (footnotes omitted). At one point, Dillon refers to the relevant portion of Article XX, § 4 of the Colorado Constitution in a footnote following this sentence:
Other States ... have also embodied in their Constitutions provisions requiring the consent of the local authorities to the use of streets and highways, not only for railroad purposes, but in some instances for any form of public utility.
Id. at § 1223.
The notion that a street franchise relates to public utilities is contained in more recent literature. In McQuillin’s work on municipal corporations one chapter is entitled: “The Franchise of Persons Using the Streets, and Its Incidents.” It is introduced with these paragraphs:
This chapter embraces the law relating to grants to companies, individuals or partnerships to use the streets, and includes the rights and duties growing out of grants of the use of streets to water, gas, electric light, heat, power, conduit, telegraph, telephone, commercial railway, street railway, etc., companies commonly known as public service companies ....
The law relating to the use of streets in the manner and for the purposes mentioned is of great practical importance because of the immense sums invested in public service companies and the intimate connection between the welfare of the inhabitants of the municipality and the enactment of wise statutes and ordinances granting franchises to public service companies to use the streets for water pipes, gas pipes, conduits for wires, telegraph and telephone poles, electric light poles, streetcar poles, the *341tracks of commercial railroads and of street railroads, and also the control and regulation of such companies after they have once entered upon the use of the streets by virtue of a franchise.
12 E. McQuillin, supra at § 34.01. The discussion found in these treatises convinces me that when the term “franchise” as it relates to public streets was used by the framers of Article XX, § 4 of the Colorado Constitution it was meant to apply only to franchises granted to public utilities.
In addition, the cases cited in the majority opinion support this conclusion.2 Bank of Augusta v. Earle, 38 U.S. (13 Pet.) 519, 10 L.Ed. 274 (1839) did not discuss street franchises. It applied the traditional concept of a franchise, the right to exist as a corporation. In Ward v. Colorado Eastern Railroad Co., 22 Colo.App. 322, 125 P. 567 (1912), summarily aff'd, 59 Colo. 589, 149 P. 1193 (1915), the court of appeals held that the purpose of the relevant portion of Article XX, § 4 was to give absolute control over the granting of franchises to the taxpaying electors. In Berman v. City and County of Denver, 120 Colo. 218, 209 P.2d 754 (1949), this court characterized Ward as holding “that after the effective date of said article XX, the power to regulate utilities and their rates was transferred from the city council to the qualified taxpaying electors of the new municipality.” 209 P.2d at 760.
The case closest in time to the amendment is McPhee & McGinnity Co. v. Union Pacific Railroad Co., 158 F. 5 (8th Cir. 1907). McPhee recognized that the adopters of the amendment could not have intended that all privileges to use public streets be voted on by the electorate, and held that permission granted to a commercial railroad to lay and operate a railroad across or for a short distance upon a public street is not a franchise, but a license or permit. The court cited factors for determining whether or not a privilege granted is a permit or a franchise. “A privilege granted ... temporarily for the construction of a building upon an abutting lot, for a cab stand, an apple stand, or for any similar commercial purpose is a license and not a franchise.” Id. at 10. The McPhee court also asserted that a right or privilege “not essential to the general function or purpose of the grantee ... is a license and not a franchise.” Id. The court held that the right to lay railroad lines was not essential to Union Pacific’s general purpose because it could operate its business without using the particular street under the general authorization granted it by the state.
It is instructive to note that a cable television company may conduct its business without the grant of a franchise or a permit.3 Technology permits cable television to plug into telephone lines and transmit its signals over existing wires, thus avoiding the need for a franchise or a permit. See City of New York v. Comtel, Inc., 57 Misc.2d 585, 293 N.Y.S.2d 599 (1968); Re the Mountain States Telephone & Telegraph Company, 73 P.U.R.3d 161 (Colo.P.U.C.1968). This is not commonly done because it is often less costly to string wires than to pay for the use of telephone lines.
The court in McPhee concluded that the evil at which this constitutional provision was directed was the power to grant “the general privilege commonly called a ‘franchise,’ frequently granted by cities to street railway companies, water, gas, electric light, telephone and other public utility corporations ... without the approving vote of the electors ... because there was more danger of a disregard of the public interests [from grants of these franchises].” 158 F. at 12. In Finney v. Estes, *342130 Colo. 115, 273 P.2d 638 (1954), this court reiterated the conclusion in McPhee:
[T]he term franchise [is] ordinarily ... accepted as being applicable to the well-known services which are deemed public utilities.
273 P.2d at 640.
These cases establish that the term “franchise” was intended to apply to public utilities. They also point out the logic behind Article XX, § 4: the people knew that public utilities have monopoly powers and that a way to protect themselves against these monopolies was to control their use of the streets. McQuillin writes: “The monopoly idea is the basis of nearly all the law relating to franchises and public service companies.” 12 E. McQuillin, supra, at § 34.01. This is the only logical rationale behind the vote requirement.
Once it has been established that “franchise” applies under our constitution only to public utilities, the next question is whether cable television is a public utility. I agree with those decisions holding that it is not. See Greater Fremont, Inc. v. City of Fremont, 302 F.Supp. 652 (N.D.Ohio 1968); Re the Mountain States Telephone & Telegraph Co., supra; White v. City of Ann Arbor, 406 Mich. 554, 281 N.W.2d 283 (1979); City of Issaquah v. Teleprompter Corp., 93 Wash.2d 567, 611 P.2d 741 (1980); Annot., 61 A.L.R.3d 1150 (1975). Cable television is a commercial enterprise; it is not an essential service the termination of which could threaten the public welfare. As this case demonstrates, there is significant competition among cable television companies. Monopolies will not occur unless cable television companies are treated as public utilities. Requiring a vote before granting each new cable television franchise would in effect only result in a grant of monopoly status.
I also comment briefly on some implications of the majority opinion. A city requiring a competition by election between various cable companies may be subjecting itself to antitrust sanctions. In Community Communications Co. v. City of Boulder, 455 U.S. 40, 102 S.Ct. 835, 70 L.Ed.2d 810 (1982), the United States Supreme Court held that Boulder’s moratorium ordinance on the expansion of cable television was not exempt from antitrust scrutiny under the state immunity doctrine of Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943).
Furthermore, cable television is a broadcaster of original programming. Requiring an election, paid for by the cable company, before granting a franchise restricts the cable television company’s right to speak. A basic first amendment rule is that a regulation on speech must be examined to see if the governmental interest can be served by means less restrictive of first amendment rights. See Heffron v. Int’l Society for Krishna Consciousness, Inc., 452 U.S. 640, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981); NAACP v. Alabama, 377 U.S. 288, 84 S.Ct. 1302, 12 L.Ed.2d 325 (1963); Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960).
For these reasons I would reverse the judgment of the court of appeals.
. Article X of the charter is entitled Franchises and Public Utilities, implying that § 1 of Article X applies only to franchises granted to public utilities. Another interpretation of the charter section is that since it tracks to a large extent the language of the constitutional provision, it is intended to require a vote when the constitution does. In any event, the charter can not require less than the constitutional provision authorizing the charter, and therefore, the intent of the adopters in adopting Article XX, § 4 is controlling in this case.
. The majority recognizes that not every grant of a privilege to use the street rises to the level of a franchise, but does not fully explore the intended meaning of the constitutional use of "franchise.” The majority draws its line between permits and franchises, but McQuillin points out that a franchise is sometimes called a permit. 12 E. McQuillin, supra, at § 34.01.
. At oral argument, counsel for CTI asserted that local governments usually grant cable television companies permits revocable at will.