The record-union., 1899-07-08
The GAS COMpANY'S METER.
IT'S REMOVAL FROM SMITHS
STORE UPHELD.
Judge johnson Gives His Reason
Tor So Deciding-The Law
Of the Case.

Last January w. M. Smith, a store
keeper, brought suit in the Superior
Court against the Capital Gas Com
pany for damages. Smith alleged in
his complaint that. on September y,
1888, he made a written request of the
gas company that his premises be fur
nished with gas, and that the COM
pany refused to supply it.
The plaintiff demanded damages IN
the sum of $50 and for S. a day for
each day from October 2, 1898, for
costs of suit and for such further re-
lief as to the court might seem lawful.
The case was recently tried before
Judge Johnson and submitted, and yes
terday he gave judgment for the de-
fendant, in the following
DECISION:
The plaintiff brings this action
against the defendant, gas corpora
ton engaged in supplying the inhabi-
tants of the city of Sacramento with
artificial light, ETC., under the pro-
vision of Section 629, c. c. That Sec
ton reads as follows:
Upon the application in writing OF
or premises distant not more than 100
feet from any main of the corporation,
and payment by the applicant of all
money due from him, the corporation
must supply gas as required for such
building or premises, and cannot refuse
on the ground of any Indebtedness of
any former owner or occupant thereof,
unless the applicant has undertaken to
pay the same. If, for the space of ten
days after such application, the cor
pOratfOn refuses or neglects to supply
the gas required, it must pay to the
applicant the sum of $50 as liquidated
damages, and So day as liquidated
damages for every day such refusal or
neglect continues thereafter"
The plaintiff is a merchant engaged
in the conduct of his business at 424
and 426 j street, in the city of Sacra-
mento. His business is conducted in
two distinct buildings, but connected
by an open way between the two, in one
of which he conducts a hat store and in
the other a gentlemen's furnishing
store. From 1887 down to within about
two years before the commencement Of
this action he had been using the gas
purposes. About two years before this
suit was commenced he introduced
electricity into his stores, and from
that on ceased to use defendants gas
in any appreciate quantity. 1t was in
evidence that the amount consumed by
him for the year just prior to Septem-
Der IL, 1898, amounted to 81 in the one
store and 10 cents in the other. At
that time the defendant, against the
wishes of the plaintiff, removed the
meters from both of the stores. A few
days after the removal plaintiff gave
the defendant written notice, as re
Quired in Section 500, just cited, to pro-
vide HIM with gas in each of his prem
Uses. The defendant refused to re-
place the meters unless he would as
sure it that he would consume at least
80 cents a month worth of gas, or pay
a meter rent of 80 cents per month.
Plaintiff declined to give such assur-
ance, and defendant refused to furnish
the gas. Plaintiff brings this action
for the penalty of $50 in each. instance,
and for damages at the rate of So per
day in each case, from the time of the
refusal.
We are met at the very threshold of
this case with the question whether
Section $40 is constitutional. That
Section was a part of the original
codes, as first adopted by our Legis-
lature, and has ever since remained in
tact. At the time of it's adoption in
dividual persons could not obtain a
franchise to supply gas to the inhabi-
tants of towns and cities The Consti-
tuition of 1870, Article H., Section 10.
changed this rule, and provided that
when the municipality does not own
the works for supplying it with arti-
fetal light, any individual, or any in
corporated company, under certain re-
strictions, may engage in such business,
and may do the things necessary there
to, such as laying down pipes in the
public streets, etc.
1t will be seen. then, that when Sec
ton 500 was enacted, only companies
could engage in such work, but that
the Constitution of 1879 changed that
and permitted individuals, as we'll as
corporations to engage in such mat
tiers; that, while the fundamental law
has been changed, the Legislature has
not amended it's laws-that is, Section
$3.50 as 10 make 1t CONFORM TO the
constitutional requirements.
The objection is that Section 629 i'm
poses a severe penalty upon corpora
ton engaged in supplying gas, while 1t
imposes no such penalty upon the in
dividual who is likewise supplying gas,
thereby making an unjust discrimina-
ton between natural and artificial per-
sons.
Our Constitution provides that no
special privileges or immunities shall
ever be granted and that no citizen or
class of citizens shall be granted priv
ileges, which, upon the same terms,
shall not be granted to all classes of
citizens (Article l., Section 2D. I i'm
ply from this that it is intended that
all persons in the same category are
to bear the burdens equally, and not
that one person is to bear burden
and another be excepted therefrom.
1.-The rights of every individual must
stand or fall by the same rule or law
that governs every other member of
the body polite, or laid, under similar
circumstances; and every partial, or
private law, which directly proposes to
destroy or affect individual rights. or
does the same thing by affording rene
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