The petition of the respondent for a rehearing after judgment in the district court of appeal is denied.
The respondent, in support of its petition, contends that the franchise under which the respondent is operating does not require it to pave the streets, but only to grade them and keep them in proper repair between the tracks and for two feet on each side thereof, and that the police power does not embrace the authority to compel a street railway occupying the streets of a city to pave the streets, between its tracks, or elsewhere, or at all; that such power must be founded upon the contract between the city and the company whereby the franchise is granted, or upon some valid contract obligation of the company. It is unnecessary to consider whether or not the terms of the franchise of the defendant requires it to pave the streets. The franchise was granted under the provisions of *Page 81 section 498 of the Civil Code and that section requires street railroads to "plant, pave, or macadamize the entire length of the street, used by their track, between the rails, and for two feet on each side thereof." This can only mean that such company must either plank, pave, or macadamize that part of the street, as the proper city authority may lawfully direct. It is a constituent part of the contract granting the franchise, though not expressed therein in terms. The company is therefore bound by contract to pave the street in accordance with the city ordinance, and it is not necessary to say whether or not the city, by virtue of its police powers alone, could compel it to do so.