The herald., 1898-12-04
OIL ORDINANCE VOID
THE 16OO-FoOf LIMIT AT WEST
LAKE UNCONSTITUTIONAL
JUDGE MORRISON so HOLDS
He Gives Verdict Knocking Out the
Ordinance Regulating Oil Boring
Near Westlake Park

terday declaring the recent ordinance en-
acted by the council prohibiting boring for
oil within distance of 1900 feet from the
extreme limits of Westlake park to be un-
constitutional. The case has been on trial
for several weeks past and was the result OF
| the arrest of Bert Culver and j. w. Shelton,
oil borers, who were accused OF having
violated this ordinance. The men had
been employed by w. i. DE Groot to bore
| for oil on his property on the Mob Hill
tract, within the 1600-foot limit. Ihe ac-
ton was brought to test the validity OF the
ordinance, and while the men were tried on
charge of misdemeanor, it was in reality
the ordinance which was being tested. An
attempt was made to secure jury, but
after accepting seven jurors it was decided
| to submit the case on stipulation OF facts,
and the necessary arguments were made.
In giving his opinion, the court states
| the ground of prosecution. The ordinance
was enacted for the purpose of protecting
the shrubbery and trees of the park, as 1t
was feared that the Typographical situation
Of Westlake park was such that 1t would
be subject to the drainage from any Oil
wells that might be operated within the
prohibited limit. The opinion says:
''rhe charter of the city of Los Angeles,
section /, subdivision 49, gives the corpora
ton the power to license, regulate, re-
strain, suppress or prohibit any or all
laundries, livery and sale stables, etc. not
expressly mentioning oil wells. Section %
OF the charter provides that the council
may by ordinance declare what constitutes
nuisance and provide for the abatement
and removal thereof The constitution OF
the state of California provides, article IL,
section IL: ANY county, city, town or town
ship may make and enforce within its lin
its all such local, police, sanitary and other
regulations as are not in conflict with gen.
era laws
"The council has not declared the drill
ing operating or pumping Of oil wells nu-
sance, but, by various ordinances, has pro-
vided for the regulation of almost every
thing connected with the operation of oil
wells, and permits for the operation OF oil
wells are granted in large numbers through
out the oil belt, which extends from point
near the location of the well in controversy
easterly for considerable distance.
"Great stress is laid by the attorneys for
| the people on the constitutional provision
above cited, but Justice Sawyer of the
United States circuit court, in the case
known as the Stockton laundry case, has
clearly pointed out that this provision of the
constitution authorizes only the regulation
and not the prohibition, OF a lawful business.
"As the right of the citizen to engage in
certain business or follow certain profes
sion is protected by the constitution, it is
always a judicial question whether any par
ticular regulation of such rights is valid
exercise OF legislative power. Nor will the
court be precluded from determining the
questions merely because the statute may
be seemingly fair on its face"
The courts are not bound by mere forms
nor are they to be misled by mere pre-
tenses says Magler VS.. Kansas, 1913 U. S.
Rep, 66l. They are at liberty-indeed, are
under solemn duty-to look at the sub
stance of things whenever they enter upon
the inquiry whether the legislature has
transcended the limits of its authority. If,
therefore, statute purportng to have been
enacted to protect the public health, the
public morals, or the public safety has
no real or substantial relations to those
subjects, or is palpable invasion of rights
secured by the fundamental law, it is the
duty Of the courts to SO adjudge, and there
by give effect to the constitution
"The constitution of the state Of Califor-
MIA provides, in article l, section l3, that
no person shall be deprived OF life, liberty
OF property without due process of law
and the fourteenth amendment to the con-
stituton OF the United States provides that
no state shall deprive any person of life,
liberty or property without due process of
law, nor deny to any person within its juris-
diction the equal protection of the laws
This provision of the constitution of the
United States has been interpreted by the
courts in large number of reported cases.
Judge DE Haven of the Federal court of San
Francisco, in passing upon the validity Of
an ordinance of the city of San Mateo, max
ing it unlawful for any person to establish,
maintain or carry on the business Of a pub
lie laundry or washhouse, where
articles are washed and ceansed
for hire, within the city of San
Mateo, using the following language: 1T is
certainly matter of common observation
that public laundry is harmless in itself,
and, if properly conducted with reference to
sanitary and other conditions which may
easily be complied WITH not offensive or
dangerous to the health of the community
in which it may be located; and, this being
so, a person has, under the constitution of
the United States, the same right to engage
in the business of conducting public laun-
dry as in any other, and has, equally with
the grocer, the lawyer, the carpenter, the
right to select the particular locality in
which he shall conduct such business
"The ordinance in question denies this
right, and is for that reason in conflict with
section l of the fourteenth amendment to
the constitution of the United States, and
the conflict is not removed by the fact al
legged in the return, that there are within
the limits of the city of San Mateo, outside
Of the district from which laundries are eX-
cluded, places equally as we'll suited for
their location as any within the district
from which they are excluded. As already
stated, a person desiring to carry on such
la business has the right to select his own
location and cannot be required to 90 else
where.
THE use of property for the purpose of
sinking oil wells thereon, and extracting the
loi. is in itself somewhat different from the
ordinary use of property. The owner of
such property cannot, in the nature of
things, move his oil to some other location
land there extract it, and if he is forbidden
the right to take out the oil on his own prop
erty he is to that extent deprived of the use
of his property. To use his property for oil
purposes may be it's most valuable use.
"a written stipulation, and a map of the
territory involved in this action, have been
filed in this "a so and from this et;pulo+;...