Matter of Application of Keppelmann

SLOSS, J.

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