138 P. 346 | Cal. | 1914
Lead Opinion
A writ of habeas corpus was issued on the application of D.E. Keppelmann, who was held in custody on a charge of violating a certain ordinance of the city and county of San Francisco. The validity of the ordinance is the single question for decision.
The petitioner is an employee of a corporation which prior to October 10, 1911, was, and still is, engaged in supplying the inhabitants of the city and county with gas and electric light. For that purpose it had laid pipes and conduits in various public streets of the city and county. One of the streets so occupied by it prior and subsequent to said tenth day of October, 1911, was Sixth Street, between Stevenson *772 and Jessie streets. On the twenty-fourth day of March, 1913, the petitioner, acting for said corporation, made an opening in the surface of said part of said Sixth Street, for the purpose of installing a service-pipe connection with the pipe and conduit there existing and maintained. He took this action, as was charged, without first obtaining from the board of public works a certificate that he or his employer was entitled to make the opening. The ordinance requiring such certificate was approved March 3, 1913. Its provisions, so far as they are material here, are as follows: Section 1 makes it unlawful for any person, firm, or corporation to make any excavation in or under the surface of any public street for the installation, repair, or removal of any pipe or conduit without first obtaining from the board of public works a written certificate that such person, firm, or corporation is entitled to make such excavation, and making a deposit to cover the cost of inspection and of restoring such street to its original condition, together with the incidental expenses in connection therewith. The said section further provides that the board of public works, before issuing such certificate, shall require: 1. A written application, showing the name and address of the applicant, the location and approximate area of the proposed excavation and the purpose for which it is to be made and used; 2. A plat showing such location (except in cases of service corporations); 3. That the applicant show legal authority to occupy and use the street; and, 4. That all material to be used in the excavation be on hand before the excavation is begun. The board is also authorized to adopt such regulations as it may deem necessary for the location, size, and depth of such excavations. Section 3 provides that when an application and plats comply with the ordinance and regulations of the board "the application and . . . plats shall be approved by the city engineer's office." The application and plats are to be filed with the board of public works, together with deposits ranging from thirty cents to ten cents per square foot of surface to be excavated, the amount varying according to the character of the pavement. Persons or corporations are permitted to maintain a general deposit of two thousand five hundred dollars in lieu of special deposits for each excavation. When the foregoing conditions have been complied with, the board of *773 public works, it is provided in section 4, "shall issue a certificate in writing which shall be evidence of the right of the person, firm, or corporation therein named to make such excavation." Section 24 makes the violation of any provision of the ordinance a misdemeanor.
As has been said, the petitioner's employer was in occupation of the part of Sixth Street in question on October 10, 1911, the date on which section 19 of article XI of the constitution was amended. It had, therefore, on that date, a vested right to occupy such part of the street for the purposes specified in said section 19, and subject to the limitations therein contained(People v. Stephens,
But the constitutional grant was not absolute. It was in terms made subject to the "direction of the superintendent of streets, or other officer in control thereof, and under such general regulations as the municipality may prescribe for damages and indemnity for damages," and upon the further condition that the municipality should have the right to regulate charges. The ordinance before us does not transcend the scope of the powers thus reserved to the municipality. It recognizes the pre-existing right of persons or corporations engaged in the businesses specified in the constitution to occupy the streets. The city engineer's duties are ministerial merely. He must approve an application from such person or corporation when the application complies with the regulations imposed by the ordinance and by the board of public works. Nor has the board a discretion to grant or refuse a certificate. Upon a proper showing the duty to issue the certificate is mandatory. Compliance with such duty could doubtless be enforced by appropriate judicial proceeding. But, in order to protect the streets against unwarranted intrusion by persons not entitled to excavate them, and to secure the municipality against damage to its streets, the ordinance requires evidence of the right and a deposit to cover damages. These are legitimate regulations of the right within the limitations expressed in the constitution. The right to occupy *774 the streets being subject to the direction of the officer in control of such streets (i.e., in the city and county of San Francisco, the board of public works), it is a proper exercise of such power of direction to require any one who seeks to make excavations to show that he is one of those having the constitutional right to enter and excavate. In the absence of such showing, and the certificate issued thereon, it would be impossible for the officers of the city or any one else to know whether any attempted excavation of the streets was being undertaken by persons authorized to occupy the streets or by mere trespassers.
So, too, the requirement of a deposit to cover the cost of restoring the streets and the expense of inspection, is to be sustained under the constitutional grant to the municipality of power to make regulations "for damages and indemnity for damages." Certainly it was never intended to grant to purveyors of water or light the privilege of destroying the pavements of a city, without reimbursing the city for the damage caused. Their right to occupy the streets has always been understood to be subject to the obligation to restore the surface of the street to its original condition. The exacting of a deposit is a reasonable method of securing such restoration.
The petitioner's main reliance is upon In re Johnston,
It may be remarked, further, that in the Johnston case the corporation seeking to open the street had done everything to entitle it to a permit. Such permit being refused, it proceeded to exercise the right which it had under the constitution. It may be that an unwarranted refusal of a certificate would authorize the applicant to open the streets without first compelling, by writ of mandate, the issuance of the certificate. Here, however, the petitioner did not base his claim upon any refusal of a certificate. He was undertaking to make an excavation without any prior attempt to comply with the ordinance which required him to obtain a certificate, and entitled him to such certificate upon proper showing.
The writ is discharged and the petitioner remanded.
Shaw, J., Angellotti, J., Lorigan, J., Henshaw, J., and Beatty, C.J., concurred.
Dissenting Opinion
I dissent: I can see no essential difference between this case and In re Johnston
Respondent's counsel insist that the ordinance under review here is a proper exercise of the police power. The same argument was presented in the Johnston case, but this court said: "The ordinance in question is not an exercise of the police power, nor can it be justified under that authority. The exercise by a municipality of the police power over its streets is limited to the protection of the public in their use of the streets, and does not include a limitation upon their use for any legitimate purpose. The highways of a state, including the streets in its cities, are under the control of the people of the state, and, in this state, the people have declared in their constitution that the streets of a city may be *777 used for laying pipes therein for supplying its inhabitants with gaslight. Under the provision that the work shall be done `under the direction of the superintendent of streets,' ample protection is afforded to the inhabitants of the city against any unnecessary encroachment or hindrance in their use of the streets."
The requirement for a deposit to cover expenses and detriment caused to the street by making an excavation is one entirely beyond the power of the supervisors as defined by the opinion in the Johnston case. If a majority of the justices of this court wish to declare in terms that In re Johnston,
Rehearing denied. *778