In Re Johnston

HARRISON, J.

The petitioner was arrested for the violation of an ordinance of the city of Pasadena, passed December 17, 1901, and seeks his discharge under a writ of

habeas corpus,

on the ground that the ordinance itself is in violation of the constitution and invalid.

Section 2 of the ordinance is as follows: “It shall be unlawful for any person, firm, or corporation to lay down any pipe, conduit, or connection therewith in any public street or thoroughfare in the city of Pasadena, for the purpose of supplying the said city or its inhabitants with fresh water, or with gas used exclusively for illumination, or with other illuminating light, without first obtaining, in the manner hereinafter prescribed, a permit from the superintendent of streets of said city, to make the necessary excavations therefor. Any person, firm, or corporation desiring to obtain such a permit shall file with the superintendent of streets of said city an application therefor in writing, setting forth the public streets or thoroughfares, and the particular portions thereof, which it is desired to excavate, the size and character of the excavation to be made, and specifically the purposes for which the pipe, conduit, or connection therewith, is to be used, whether for water, gas, or electricity, and if for gas or electricity, that said gas or electricity is to be supplied solely to said city or its inhabitants, to be used exclusively for illumination. Said application must be verified by the oath of such person, or by

[117]

the oath of a member of such firm, or by the oath of the president and secretary of such corporation, as the ease may be. The said superintendent of streets upon receiving such application, and upon compliance by the applicant with all the requirements of the ordinances of said city which are now or which may be hereafter in force, regulating the tearing up-or excavation of any part of the public streets or places in said city, shall issue a permit authorizing the excavation described in said application.” The next section declares that a violation of the ordinance shall constitute a misdemeanor, and that any person convicted thereof shall be punished by fine or by imprisonment or by both.

The city of Pasadena is a municipal corporation, organized under a charter framed by a board of freeholders, and approved by the legislature January 29, 1901, and does not own or control any public works for supplying its inhabitants with artificial light. The Valley Gas and Fuel Company is a corporation organized under the laws of this state, with its principal office in the city of Pasadena, “for the purpose of manufacturing, distributing, and selling gas in any lawful manner within the State of California, and supplying municipalities and their inhabitants with artificial light.” Prior to the passage of the above ordinance the city of Pasadena had adopted an ordinance providing that no person should make, or procure to be made, any excavation in any street of said city for any purpose, without first obtaining from the superintendent of streets written permission to do so, and that any person on applying for such permission should execute to the city a bond in the sum- of five hundred dollars, with two sureties, to be approved by the mayor, as an indemnity to the city for any expenditure rendered necessary by said excavations during the period of one year after the said excavations were made. No other ordinance was ever passed by the city in reference to damages, or indemnity for damages, caused by using the streets for laying pipes therein for supplying gaslight to its inhabitants. On December 17, 1901, the Valley Gas and Fuel Company applied to the superintendent of streets for the privilege of using the public streets and thoroughfares of said city for the purpose of laying down pipes and conduits therein, and connections therewith, so far as