The San Francisco call., 1899-06-25

nance which applies to either a person,
company or a corporation. do not 50
construe the statute. The legislative in
tent is clear that all persons as well as
companies and corporations in the cate
cory named IN the statute should be sub
]ect to municipal regulation, and that the
word or" should be read land"
McConky VS.. Superior Court. Sc Cal, 3d.
Endhch on Statutory Construction, Sec.
202
Sutherland on Statutory Construction,
Sec. 252.
That such is the proper construction
conclusively appears by section of the
act which provides that after the board
shall have fixed the standard quality and
price Of gas it shall be unlawful for any
person, company or corporation to fur
nish gas Of a lower standard or to charge
therefor higher price than that fixed by
the board. and that for each such unlaw-
ful act every such person, company or
corporation shall incur a pecuniary PEN
atty of not less than 500 nor more than
$1,000
The exception OF persons" from the
operation Of the ordinance is to that ex-
tent discrimination in their favor and
against companies and corporations. 1t
may be true that at the date of the or
dinance there were no persons other than
corporations who supplied gas to the city
or its inhabitants, but even II I am at
liberty to assume that such was the case,
l must also recognize the fact that by
section 19 Of article XI of the State con-
stitution any individual has, under the
direction of the Superintendent of Streets,
and under such general regulations as the
municipality may prescribe for damages,
the privilege of using the public streets
thereof, and Of laying down pipes therein
and connections herewith, so far as may
be necessary for introducing into and sup
plying such city and It's inhabitants with
gasllght or other illuminating light. Any
existing gas company may also transfer
its plant and property to an individual,
who would be exempt from the operation
of the ordinance. Inasmuch as the stat
ute provides, in express terms, that the
standard and price shall not be changed
oftener than once every year. the Board
of Supervisors, If the resolution in ques
ton is valid, would have no power to
pass a new ordinance to meet any altered
conditions until April, 1890.
In determining the validity or constitu-
tionality of q statute passed by the Leg
islature or of an ordinance of the Board
of Supervisors, the court has no power
to hear evidence, but must be governed
only by facts appearing upon their face
and those of which the courts take judi
cial notice.
Conlin vs. Beard Of Supervisors, SO
Cal. II.
Bourn VS.. Hart, 90 Cal. 321
CITY of Eureka VS.. Diaz, 90 Cal. 419.
Another well-settled rule of determining
the validity Of an ordinance passed by a
municipal legislature is that the mode
prescribed by law is the measure Of the
power. The Board of Supervisors has no
power to pass an ordinance or resolution
fixing the standard and price of gas of
any other character than such as is pre-
scribed by the act of 1878; and that act re-
qures that every such ordinance or reso-
luton shall be made applicable to all per-
sons, companies and corporations. The
ordinance in question in effect declares
that all natural persons may furnish gas
to the city and it's inhabitants without
any restriction as 10 quality or price;
but that no company or corporation may
furnish gas of less than seventeen candle
power or at a greater price than 81 10 per
thousand cubic feet.
LAS it would be unlawful and unjust to
make, under the same circumstances, an
act done by one person, penal, and if done
by another not so, ordinances which have
this effect cannot be sustained. Special
and unwarranted discrimination or unjust
or oppressive interference in particular
cases is not to be allowed. The powers
vested in municipal corporations should
so far as practicable be exercised by or
dinances general in their nature and i'm
partial in their application. Municipal re-
strictions imposed upon one class of per-
sons engaged in a particular business
which are not imposed upon others en-
gagged in the same business and under
like conditions impair the equal right
which all can claim in the enforcement of
the law" Dillon an Municipal Corpora
tions, section 322)
Our constitution provides that no spe-
cial privileges or immunities shall ever
be granted and that no citizen or class of
citizens shall be granted privileges which
upon the same terms shall not be granted
to all citizens. 1t is merely another form
of expressing the same principle, to say
that all persons In the same category
should bear equal burdens. This princi-
pie is fully recognized in the act of 1878,
and it is one which should be guarded
with Jealous care by all departments of
the Government. No consideration of
policy or expediency can furnish any JUS
tification or excuse for departing from it.
Nor is there the slightest necessity for
yielding to such considerations. The same
body which passed the resolution of April
can at any time pass another which
shall be free from any valid objection.
The language of the law is so clear, sim
with it's requirements can be easily avoid
ed by the exercise of ordinary care and
intelligence.
BY the act of 1878 the Board Of Super
visors is authorized to regulate the stand
ard quality and price of gas only as to
such persons, companies and corporations
whose pipes or mains are or shall be laid
down in the streets or highways of the
. city The ordinance in question is not
in terms limited to such persons, COM
panies or corporations. but applies to all
companies and corporations. whether they
have pipes or mains in the streets or not
| make no further comment upon this de-
parture from the plain requirements of
the statute than to suggest to the board
the propriety, in its future resolutions, of
following the letter as well as the spirit of
the statute.
II. Having reached the conclusion that
the resolution of April 8, 1899, is invalid.
for the reasons above stated, l do not
deem 1t necessary to consider the ques-
ton discussed by counsel as to the con-
stitutionality Of the act of 1878.
The objection to the resolution will
therefore be sustained.
J. NJ. SEAWELL, Judge
Upon the filing of the decision Gavin
McNab, who represented Major Hooper,
tO piua bic