The herald., 1895-07-02
Superior Court Arraigns the
Fire Commissioners
JUDGE VAN DYKES OPINION
He Limits "P0Iice Power" and the Mu.
nicipal Law
Commissioners Have No Right to Do LsgisIa.
tive and Arbitrary Executive Work.
A ftint to the City Council

day handed down an opinion affirming
the judgment of Police Judge Madison
Owens in the OH well case of the people
against W. II. Clark ct al. In his opinion
he reviews the case thoroughly and quotes
numerous authorities in support OF his
agument. The opinion will be OF con-
sideable import to the oil men.
Judge Van Dyke said in brief: "The
prosecution is under the provision of or
dinance No. 242 regulating the
erection. operation or use of boilers and
engines within that territory of the city
of Los Angeles lying outside OF the gem
eral fire limits OF said city. The first sec
unlawful for any person, firm or corpor-
alton to erect, operate or use boiler or
engine or drilling. pumping or operating
a well within that territory OF the city OF
Los Angeles lying oustide of the general
fire limits without having iirst
obtained permit to do so from the
board of fire commissioners of said city.
The complaint was dismissed and the
defendants discharged in the police
court on the ground that the ordinance
referred to was invalid: and that is the
question presented to this court.
The power to make and enforce all nee
essary local police, sanitary and other
regulations that are not in conflict with
the general laws is one usually conferred
by the legislative power of the state upon
all cities and towns and has been so con-
ferred upon this CITY in Its charter. In
addition to this the constitution OF ouf
state directly confers this power CART. X!
Sec. ILL., The power is very broad and
comprehensive and would, no doubt, sus-
ing reasonable tendency to promote the
health and comfort, safety and welfare OF
the inhabitants of q municipality, and
which would not conflict with some gen.
eral laws OF the state.
1.-THE extent and limits OF what is
known as the police power has been a
fruitful subject OF discussion in the courts
of every state in the union, and it is quite
impossible to state in terms the extent or
limitations of this police power The
courts have not attempted to do it
Whether or not that power has been ex-
ceeded in particular cases, must be deter
mined as the cases arise. But whether
this power be exercised by the state di-
rectly or by a municipality, it must ap-
pear, first, that the interest Of the public
generally as distinguished from those of
a particular class require such interfer-
ence and that the laws are reasonably
necessary for the accomplishment OF the
purpose and not unduly oppressive upon
Individuals. Under the guise Of protecting
ne DuDllC lHt6TcSt i may hOt IA Oltl al y
pe exercised to interfere with private
business or impose unusual and unneces'
sary restrictions upon lawful occupations
"In other words, as to what is a proper
| exercise of the police power is not lima
| or conclusive on the part OF he legislative
power. but is subject to the supervision oi
the courts.
THE court takes notice of the extent Of
the city, and is advised that there are
many large districts where the use of 8
boiler and engine for drilling well could
not be considered as dangerous.
| The ordinance makes no distinction be
| tween water and oil wells. The sinking
Of well for either purpose is in itseli
| not unlawful 1t, therefore, puts it in the
| to say that one man may drill well on
| his property while another man on tine
adjoining property is deprived of that
| right and it appears the board refused q
| permit in this case and about the same
| time granted permits to others in the
same vicinity. 1t is not fire ordinance.
! based upon reasonable rules. applying
| alike to all, but applies only to the dis
trict lying outside of the general fire
| limits.'
The court referred TO Lawson VS.. Steele,
1852 U. s. 1873; llS u. S. 1856; So Cal. 354
SO Cal. %; SO Pac. Rep. 9sl. and con-
cluded: ''The legislative body of mu-
nlClpdllCy Cannoo ueleeuSe w Jig "a ius
mem bers, or to any executive officer OF
the city, tho power to determine whether
an ordinance Shall be operative upon Ger.
tain individuals or at certain times, any
more than it can delegate to him the
power to determine whether the ordinance
shall be adopted or shall have any opera
ton; nor can it confer upon such officer
he may choose from the operation OF
the ordina anoe.' He quoted Dillon and
Cooley on municipal corporations and
constitutional limitations, and continued /:
"There is no apparent necessity In tai
case for delegating to the board of fire
commissioners the. power to grant or
engine to sink we'll. The district with
in which boiler and engine should not
be used. or it's use properly regulated. can
be prescribed by ordinance. The iudg-
ment of the police court is affirmed"