Matter of Application of Keppelmann

SLOSS, J. A writ of habeas corpus was issued on the application of D. E. Keppelmann, who was held in custody on a charge of violating a certain ordinance of the' city and county of San Francisco. The validity of the ordinance is the single question for decision. The petitioner is an employee of a corporation which prior to October 10, 1911, was, and still is, engaged in supplying the inhabitants of the city and county with gas and electric light. For that purpose it had laid pipes and conduits in various public streets-of the city and county. One of the streets so occupied by it prior and subsequent to said tenth day of October, 1911, was Sixth Street, between Stevenson *772 and Jessie streets. On the twenty-fourth day of March, 1913, the petitioner, acting for said corporation, made an opening in the surface of said part of said Sixth Street, for the purpose of installing a service-pipe connection with the pipe and conduit there existing and maintained. He took this action, as was charged, without first obtaining from the board of public works a certificate that he or his employer was entitled to make the opening. The ordinance requiring such certificate was approved March 3, 1913. Its provisions, so far as they are material here, are as follows: Section 1 makes it unlawful for any person, firm, or corporation to make any excavation in or under the surface of any public street for the installation, repair, or removal of any pipe or conduit without first obtaining from the board of public works a written certificate that such person, firm, or corporation is entitled to make such excavation, and making a deposit to cover the cost of inspection and of restoring such street to its original condition, together with the incidental expenses in connection therewith. The said section further provides that the board of public works, before issuing such certificate, shall require: 1. A written application, showing the name and address of the applicant, the location and approximate area of the proposed excavation and the purpose for which it is to be made and used; 2. A plat showing such location (except in cases of service corporations); 3. That the applicant show legal authority to occupy and use the street ; and, 4. That all material to be used in the excavation be on hand before the excavation is begun. The board is also authorized to adopt such regulations as it may deem necessary for the location, size, and depth of such excavations. Section 3 provides that when an application and plats comply with the ordinance and regulations of the board “the application and . . . plats shall be approved by the city engineer’s office.” The application and plats are to be filed with the board of public works, together with deposits ranging from thirty cents to ten cents per square foot of surface to be excavated, the amount varying according to the character of the pavement. Persons or corporations are permitted to maintain a general deposit of two thousand five hundred dollars in lieu of special deposits for each excavation. When the foregoing conditions have been complied with, the board of *773 public works, it is provided in section 4, “shall issue a certificate in writing which shall be evidence of the right of the person, firm, or corporation therein named to make such excavation.” Section 24 makes the violation of any provision of the ordinance a misdemeanor. As has been said, the petitioner’s employer was in occupation of the part of Sixth Street in question on October 10, 1911, the date on which section 19 of article XI of the constitution was amended. It had, therefore, on that date, a vested right to occupy such part of the street for the purposes specified in said section 19, and subject to the limitations therein contained (People v. Stephens, 62 Cal. 209; In re Johnston, 137 Cal. 115, [69 Pac. 973]). The right thus granted was not and could not be impaired by the amendment of the section of the constitution. (See Western Union Telegraph Co. v. Hopkins, 160 Cal. 106, [116 Pac. 557] ; In re Russell, 163 Cal. 668, [Ann. Cas. 1914A, 152, 126 Pac. 875].) But the constitutional grant was not absolute. It was in terms made subject to the “direction of the superintendent of streets, or other officer in control thereof, and under such general regulations as the municipality may prescribe for damages and indemnity for damages,” and upon the further condition that the municipality should have the right to regulate charges. The ordinance before us does not transcend the scope of the powers thus reserved to the municipality. It recognizes the pre-existing right of persons or corporations engaged in the businesses specified in the constitution to occupy the streets. The city engineer’s duties are ministerial merely. He must approve an application from such person or corporation when the application complies with the regulations imposed by the ordinance and by the board of public works. Nor has the board a discretion to grant or refuse a certificate. Upon a proper showing the duty to issue the certificate is mandatory. Compliance with such duty could doubtless be enforced by appropriate judicial proceeding. But, in order to protect the streets against unwarranted intrusion by persons not entitled to excavate them, and to secure the municipality against damage to its streets, the ordinance requires evidence of the right and a deposit to cover damages. These are legitimate regulations of the right within the limitations expressed in the constitution. The right to occupy *774 the streets being subject to the direction of the officer in control of such streets (i. e., in the city and county of San Francisco, the board of public works), it is a proper exercise of such power of direction to require any one who seeks to make excavations to show that he is one of those having the constitutional right to enter and excavate. In the absence of such showing, and the certificate issued thereon, it would be impossible for the officers of the city or any one else to know whether any attempted excavation of the streets was being undertaken by persons authorized to occupy the streets or by mere trespassers. So, too, the requirement of a deposit to cover the cost of restoring the streets and the expense of inspection, is to be sustained under the constitutional grant to the municipality of power to make regulations “for damages and indemnity for damages.” Certainly it was never intended to grant to purveyors of water or light the privilege of destroying the pavements of a city, without reimbursing the city for the damage caused. Their right to occupy the streets has always been understood to be subject to the obligation to restore the surface of the street to its original condition. The exacting of a deposit is a reasonable method of securing such restoration. The petitioner’s main reliance is upon In re Johnston, 137 Cal. 115, [69 Pac. 973]. In that case an ordinance of the city of Pasadena, prohibiting the laying in the city streets of pipes for gas or water without first obtaining a permit from the superintendent of streets was held to be in violation of the constitution and invalid. The ordinance appears to have been construed (see page 120 of 137 Cal.) as asserting a right on the part of the municipality to grant or refuse a permit. In fact, it appeared that the corporation which desired to open the street there involved had made a proper application, and had offered to comply with all of the conditions and requirements imposed by law, but that the permit had nevertheless been refused. An ordinance which assumes to make the exercise of the constitutional right subject to the discretion of city officials is clearly open to the objection that it imposes an unwarranted limitation upon the constitutional grant. But, as we have said, the ordinance before us is not open to this interpretation. Under the San Francisco en *775 actment, the applicant has an absolute right to the certificate upon complying with the terms of the ordinance and such proper regulations as may be adopted under it. All that he needs to do is to show his right and to deposit the amount fixed by the ordinance. It may be remarked, further, that in the Johnston ease the corporation seeking to open the street had done everything to entitle it to a permit. Such permit being refused, it proceeded to exercise the right which it had under the constitution. It may be that an unwarranted refusal of a certificate would authorize the applicant to open the streets without first compelling, by writ of mandate, the issuance of the certificate. Here, however, the petitioner did not base his claim upon any refusal of a certificate. He was undertaking to make an excavation without any prior attempt to comply with the ordinance which required him to obtain a certificate, and entitled him to such certificate upon proper showing. The writ is discharged and the petitioner remanded. Shaw, J., Angellotti, J., Lorigan, J., Henshaw, J., and Beatty, C. J., concurred.