In Re Anderson

THE COURT.

The application herein for a writ of

habeas corpus

was preceded by a similar application made to the Superior Court of Los Angeles County. In ruling upon the right of petitioner to the writ for which he prayed, by a decision in an opinion prepared by Judge Walter J. Desmond of said court, the application of petitioner was denied. With the omission therefrom of the last paragraph of said opinion as filed in the superior court, and with the addition thereto of words now included within the parentheses in the paragraph thereof commencing with the words “In California the abutting property owner has title,” etc., this court is satisfied with the declarations of the law therein contained. As thus modified, and as hereinafter appears,

[396]

the said opinion is adopted as the opinion of this court, to wit:

“The question involved in this case is whether the setting aside by the city of Long Beach of a portion of two public highways (Broadway and Cedar Avenue) for exclusive use as a public market from 7 A. M. till noon on Tuesday, Thursday and Saturday of each week, is a reasonable regulation of a municipal affair.

“It is contended by the petitioner, who has been fined for parking his automobile after 7 a. m. in the reserved area without a vendor’s permit on Tuesday morning, December 6, 1932, that Ordinance B417, as amended by Ordinance C668, under which the market operates, is unconstitutional and void for various reasons, and particularly because the establishment and maintenance of the public market as in said ordinance provided

denies

to the public all right of travel or passage over the reserved area within the hours mentioned and during a clean-up period of one-half to one hour immediately thereafter. The petitioner also alleges that Ordinance B417 is unconstitutional and void because it is

ultra vires

and beyond any power or authority fixed in the city of Long Beach.

“At the time Ordinance B417 was adopted Long Beach was operating under a commission form of government by virtue of a charter approved by the state legislature in 1915. This instrument empowered the commissioners as the legislative body of the city ‘to establish, license and regulate markets and market houses’. (Art. X, sec. 5, cl. 7, of said charter) ; also ‘to pass ordinances upon any subject of municipal control or to carry into force or effect any other powers of the municipality’ (art. X, sec. 5, cl. 33). The charter now in force, adopted in 1921, and amended at various times since then gives the city power to regulate and license any business carried on within the city. (Art. IV, sec. 33.) It is provided also that the city council sha.ll have power to regulate street speakings or street gatherings ... to regulate or prohibit traffic