In Re Wilcox

Municipal Ordinance—Street Excavations—Deposit of Bond or Money for Restoration—Eee as Condition of Receipt—Conflict With General Law.—That portion of a municipal ordinance relating to street excavation - which requires the payment of a fee to the street superintendent, as a condition of the obtaining of a receipt for a deposit of a bond or money in lieu thereof to secure the restoration of the street, is invalid, as being in conflict with the general law embodied in section 2075 of the Code of Civil Procedure, that “whoever pays money, or delivers an instrument or property, is entitled to a receipt therefor from the person to whom the payment or delivery is made, and may demand a proper signature to such receipt as a condition of the payment or delivery.”

Id.—Notice to City of Intention to Excavate—Basis for Computation of Cash Deposit.—That portion of the municipal ordinance requiring written notice to be given to the city of an intention to excavate is intended solely as a basis for computation where a cash deposit is made.

Id.—Notice, When not Required—Waiver—Giving of Bond.—Notice to the city is waived when the city fixes the amount of the deposit without notice; and no notice is required when a bond is given, the amount of which is arbitrarily fixed by the statute.

Id.—Notice not a Basis fob Constitutional Right of Water Company to Excavate.—In no event can notice be required as a basis for the right of a water company to enter upon a street for the purpose of making excavations in which to lay pipes for the distribution of water to the citizens of the municipality. That right is by virtue of a constitutional franchise, and it cannot be withheld by the city.

Id.—Bower of City to Make General Regulations for Damages— Uniformity Essential.—The only power possessed by the city, in the ease of a water company, is to make general regulations for damages and indemnity for damages, and to require the work to be done under the direction of the street superintendent. Its regulations must be uniform in their application to all who desire to exercise this privilege.

Id.—Regulations not Uniform—Conditions of Deposit More Onerous Than of Bond.—The regulations provided by the ordinance are not uniform in their operation. The one depositing money as an indemnity for damages is subjected to a penalty by which the city arbitrarily retains a large portion to the credit of the street fund, while if another person or corporation desiring to excavate in the streets should file a bond, he avoids this penalty, and is only subjected to the obligation of replacing the street in as good condition as before and in the manner provided by the ordinance.

Id.—Criminal Law—Alleged Violation of Ordinance—Insufficient Complaint—Habeas Corpus.—Where a complaint for a violation of the ordinance merely alleges that an employee of a water company violated those portions of the ordinance which provide for giving notice, filing of a bond and securing a receipt therefor, and does not negative the fact that no deposit was made, which would obviate the bond, nor state facts showing that any notice was required, and the ordinance being invalid as to the conditions of securing a receipt, and as to want of uniformity in its regulations, the complaint states no offense under the ordinance, and the defendant is entitled to be discharged upon habeas corpus.