In Re Stone

WELLER, J.

Petitioner was charged with operating an elevator without a license, in violation of an ordinance of the city of Los Angeles. He now seeks to be discharged from imprisonment following conviction and sentence, claiming the ordinance to be void.

The ordinance in question provides for the creation of a board of mechanical engineers, to be appointed by the city council, and prescribes, among other things, that it shall be unlawful for any person to operate an elevator without first obtaining a license from such board. It is contended that the ordinance is void, because (1) the powers of the board of mechanical engineers, as set forth in the ordinance, encroach upon" the duties of the board of public works, as fixed by the charter, and (2) the ordinance provides for the

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appointment of the board of mechanical engineers by the city council instead of by the mayor.

1. Section 147 of the charter is as follows: “The Board of Public Works shall have charge of the enforcement of all ordinances relating to the construction, alteration, repair, demolition or removal of buildings and structures in the city; and of the arrangement, alteration and repair, use and operation of all heating, plumbing, lighting, ventilating and electrical and mechanical appliances therein.” Counsel concedes in his argument that it is within the powers of the municipality to require that an elevator operator should be subjected to tests to ascertain his proficiency, and should procure a license to pursue his calling. But, petitioner argues, the expression “use and operation” includes the human as well as the mechanical agency by means of which the use and operation is accomplished, and that, under the provisions of the charter above quoted, the jurisdiction to examine and license operators should therefore be vested in the board of public works. Admitting that the operator while engaged in the performance of'his duties should be held to be within the purview of the charter, it does not follow that the legislative body of the city may not prescribe the conditions under which he may be eligible to employment in that capacity.

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An elevator is a dangerous instrumentality, unless properly managed; and it is within the province of the council to safeguard the public against injury resulting from the incompetency of those who are to be entrusted with the operation of elevators. To that end it may impose reasonable restrictions upon the right to enter that employment, by requiring a person seeking to engage therein to procure a certificate that he is skilled in that class of work. Such a limitation does not relate to the “use and operation” of the appliance, but is in the nature of a condition precedent to such use and operation.