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templates that the mandate of the Constitu- Court in and for the County of Los Angeles tion shall be carried out, and in view of $8 in that state dismissing a bill to enjoin the 1, 2, of the same act, referred to above, and enforcement of a municipal ordinance proof the facts that legislation could not make hibiting the erection or maintenance of gasthe requirement to tax more explicit, and works except within certain prescribed limthat the Constitution seems to be regarded its. Reversed and remanded for further by the supreme court of the state as self-proceedings. executing (Georgia State Bldg. & L. Asso. V. See same case below, 139 Cal. 179, 96 Am. Savannah, 109 Ga. 63, 35 S. E. 67), we think St. Rep. 95, 72 Pac. 970. it impossible to escape from the words. The distinction intended between stock in cor- Statement by Mr. Justice Day: porations of which the property is taxed by This is a writ of error to the supreme the state and that in corporations otherwise court of the state of California, seeking a reuntaxed is emphasized by the thirty-third versal of the judgment of that court, affirmquestion:

“How many shares of stocks did .ing the judgment of the superior court, disyou own,

issued by corporations missing the complaint of the plaintiff in erwithin this state, the capital stock of which ror against the city of Los Angeles. or the property of which is not returned by Plaintiff in error filed a bill of complaint such corporation for taxation ?” We think against the city of Los Angeles, seeking an the distinction consistent with the Constitu- injunction to restrain the enforcement of certion, if not required by it, as held in People tain ordinances prohibiting the erection or ex rel. Burke v. Badlam, 57 Cal. 594, 601. maintenance of gasworks except within preDecree reversed.

scribed limits in said city.

The case was decided upon demurrer to the

bill. The complaint sets forth, in substance: (195 U. S. 223)

That on August 26, 1901, the city council of CAROLINE W. DOBBINS, Piff. in Err.,

Los Angeles adopted an ordinance making it unlawful to erect and maintain gasworks

outside of a certain district described in the CITY OF LOS ANGELES.

ordinance, and fixing penalties for the viola

tion thereof. While this ordinance was in Constitutional lare-interference with prop- force the plaintiff in error made a contract

erty rightspolice powermunicipal lim- with the Valley Gas & Fuel Company for its for gasworks equity injunction the erection of certain gasworks upon terriagainst criminal proceedings.

tory to be thereafter designated by her, and

on September 28, 1901, purchased lands with1. An arbitrary interference with property in the limits of the privileged district as

rights protected by U.S. Const., 14th Amend., fixed by the ordinance. That on the 22d of which cannot be justified as an exercise of November, 1901, upon application to the the police power, results from the narrowing, board of fire commissioners of the city of by municipal ordinance, of the limits within which gasworks may be erected and main- Los Angeles, that body granted to the plaintained, so as to include within the pro- tiff in error the privilege to erect the gashibited territory property purchased for that works upon the territory aforesaid. Therepurpose within the district wherein the erec- upon the plaintiff in error directed the Valtion of such works was then permitted, and on which such erection was then proceedingley Gas & Fuel Company to proceed with the in compliance with an existing ordinance and erection of the works upon the premises so a permit of the board of fire commissioners, purchased. That the foundations were conwhere such change was not demanded by the structed at a cost of upwards of $2,500. public welfare, and seems rather to have been After the foundations had been nearly comactuated by a purpose to perpetuate a monopoly enjoyed by a gas company whose works pleted the city council, on November 25, were still within the privileged district.

1901, passed a second ordinance, amending 2. Equity will enjoin criminal proceedings un- the first ordinance, and thereby so limiting

der a void municipal ordinance, where prop- the boundaries of the territory within which erty rights will be destroyed by its enforce- the erection of gasworks was permitted in ment.

said city as to include the premises of the

plaintiff in error within the prohibited ter[No. 107.]

ritory. The work of constructing the works

was continuously prosecuted until the latter Argued October 11, 12, 1904. Decided No part of February, 1902, when the plaintiff in vember 14, 1904.

error alleges that the city of Los Angeles,

combining and confederating with one James IN N ERROR to the Supreme Court of the R. C. Burton and other persons unknown,

State of California to review a judgment caused certain employees of the comwhich affirmed a judgment of the Superior pany engaged in the erection of said

2. See Injunction, vol. 27, Cent. Dig. $$ 178, 179.

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works to be arrested, charged with the thereof be declared void ; that the defendant violation of the said city ordinance. Oth. be enjoined from enforcing said ordinances er arrests were made on the 1st and 3d against the plaintiff, from delaying or interof March, 1902.

1902. On the 3d of March, fering with the action of the plaintiff in 1902, the city council passed a third or erecting the said works, from interfering dinance, amending the ordinance of Novem- with the maintenance and operation of the ber 25, 1901, in respect to the description of same, and for general relief. the district within which gasworks could be erected. On March 6, 1902, the city caused Messrs. Lynn Helm, Edward C. Bailey, the arrest of certain persons employed by the Henry T. Lee, J. R. Scott, and Charles W. company in charge of the erection of the Chase for plaintiff in error. works, charged with the violation of the Messrs. W. B. Mathews and Herbert J. amended city ordinance.

Goudge for defendant in error. It is averred that the adoption by the city council of the ordinances aforesaid, and the Mr. Justice Day delivered the opinion of attempted enforcement thereof, were insti- the court: gated by officers and agents of the Los An- As this case was decided upon demurrer to geles Lighting Company, a corporation en the complaint, the allegations thereof must gaged in manufacturing and supplying gas be taken as true. The question presented inin said city, and having a monopoly of said volves the right of the plaintiff in error to business therein. It is further averred that invoke the protection of the 14th Amendthe action of the municipal authorities com- ment against alleged infraction of her rights plained of was taken for the purpose of pro- by the action of the city council in passing tecting the said Los Angeles Lighting Com- and enforcing the ordinances which prevent pany in the enjoyment of its monopoly. It the carrying on of the business of making and is also claimed that the territory surround selling gas to the people of the city. ing the premises of the plaintiff in error, and Before entering upon a consideration of within which, under the ordinance of August the case it is essential to examine briefly the 26, in force when the complainant made her extent to which constitutional and legislative purchase and located and began the erection control have been exercised by authority of of the gasworks, it was lawful so to do, and the state of California in reference to the which, by the amending ordinances, was erection and maintenance of gasworks in added to the prohibited territory, was and is cities. The Constitution of the state, $ 19, a district devoted almost exclusively to man- article 11, provides that “in any city where ufacturing enterprises. Within its bound there are no public works owned and conaries there is a large amount of vacant and trolled by the municipality for supplying unoccupied land which is and will continue the same with water or artificial light, any to be useless except for the erection of man- individual, or any company duly incorufacturing establishments; within which porated for such purpose under and by auwere located at that time a soap factory, a thority of the laws of this state, shall, under wool-pulling factory, three wineries, numer the direction of the superintendent of streets, ous oil wells in operation, iron foundry, brass or other officer in control thereof, and under foundry, oil refinery; immediately east of such general regulations as the municipality said tract, railroads and an extensive tan- may prescribe for damages and indemnity nery; immediately north, the oil tanks and for damages, have the privilege of using the refinery of the Standard Oil Company. That public streets and thoroughfares thereof, and the works being constructed for the plaintiff of laying down pipes and conduits therein, in error are to be built upon concrete founda- and connections therewith, so far as may be tions with a superstructure of noncombusti- necessary for introducing into and supplyble material, so that there can be no danger ing such city and its inhabitants either with from explosion, bursting, or leaking. The gaslight or other illuminating light, or with machinery is to be of the most approved pat- fresh water for domestic and all other purtern; and that there can be no leakage or es- poses, upon the condition that the municipal cape of odors or any interference with the government shall have the right to regulate health, comfort, or safety of the inhabitants the charges thereof." By the act of the state of the city.

legislature of April 4, 1870 (Stat. 1869-70, The plaintiff in error, relying upon the p. 815), it was provided that cities may conprotection of the 14th Amendment to the trol the location and construction of works Constitution of the United States, prays that so that they may be erected in suitable lothe permit granted by the board of fire com- calities to give the least discomfiture or anmissioners be declared to be a valid and sub- noyance to the public. By the Constitution sisting contract between the city of Los An- of the state of California it is provided (art. geles and herself, and that all ordinances 12 & 11) that any county, city, town, or townpassed by the city council in contravention'ship may make and enforce within its limits all such local, police, sanitary, or other regu- | interference with the constitutional rights lations as are not in conflict with the general | to carry on a lawful business, to make conlaws. In these provisions may be found a tracts, or to use and enjoy property. In grant of power to the city of Los Angeles to Lawton v. Steele, 152 U. S. 133-137, 38 L. control the location and erection of gasworks ed. 385–388, 14 Sup. Ct. Rep. 499-501, Mr. within the city limits. In the grant of such Justice Brown, speaking for the court, said control the fact is recognized that while the upon this subject: erection and maintenance of such works is a "To justify the state in thus interposing lawful business pursuit, and one essential to its authority in behalf of the public it must the welfare and comfort of the community, appear, first, that the interests of the public its prosecution requires the use of materials generally, as distinguished from those of a of such a character, and such construction particular class, require such interference; and maintenance of the works, as not to be and, second, that the means are reasonably dangerous or offensive when carried on with necessary for the accomplishment of the purin thickly populated parts of the city; and pose, and not unduly oppressive upon indisuch rights are consequently justly subject to viduals. The legislature may not, under the regulation in such manner as to protect the guise of protecting the public interests, arpublic health and safety. The supreme court bitrarily interfere with private business or of California, as may be gathered from its impose unusual and unnecessary restrictions opinion in this case, based its decision upon upon lawful occupations. In other words, its the proposition that, as the exercise of the determination as to what is a proper exercise right to control the location and construction of its police powers is not final or conclusive, of gasworks is within the power conferred by but is subject to the supervision of the the legislature upon the city, the act of the courts.” municipality in question cannot be reviewed, And, again, in Holden v. Hardy, 169 U. because so to do would be a substitution of S. 366, 42 L. ed. 780, 18 Sup. Ct. Rep. 383, the judgment of the court for that of the the same justice, again speaking for the council upon a matter left within the exclu- court, said: sive control of the legislative body. To sup- “The question in each case is whether the port this conclusion a citation is made from legislature has adopted the statute in exerthe opinion of this court in the case of Munn cise of a reasonable discretion, or whether its v. Illinois, 94 U. S. 113, 24 L. ed. 77, to the action be a mere excuse for an unjust diseffect that the legislature is the exclusive crimination, or the oppression or spoliation judge of the propriety of police regulation of a particular class.” when the matter is within the scope of its And in Connolly v. Union Sewer Pipe Co. power. The observations of Mr. Chief Jus- 184 U. S. 540, 558, 46 L. ed. 679, 689, 22 Sup. tice Waite in that connection had reference Ct. Rep. 431, 438, Mr. Justice Harlan, deto the facts of the particular case and were livering the opinion of the court, said: certainly not intended to declare the right of "The question of constitutional law to either the legislature or a city council to ar- which we have referred [the equal protection bitrarily deprive the citizen of rights pro of the laws] cannot be disposed of by say. tected by the Constitution, under the guise ing that the statute in question may be reof exercising the police powers reserved to ferred to what are called the police powers of the states. It may be admitted that every the state, which, as often stated by this intendment is to be made in favor of the law court, were not included in the grants of fulness of the exercise of municipal power, power to the general government, and theremaking regulations to promote the public fore were reserved to the states when the health and safety, and that it is not the prov- Constitution was ordained. But, as the Conince of courts, except in clear cases, to inter- stitution of the United States is the supreme fere with the exercise of the power reposed law of the land, anything in the Constitution by law in municipal corporations for the pro- or statutes of the states to the contrary nottection of local rights and the health and withstanding, a statute of a state, even when welfare of the people in the community. But avowedly enacted in the exercise of its ponotwithstanding this general rule of the law, lice powers, must yield to that law. No it is now thoroughly well settled by deci- right granted or secured by the Constitusions of this court that municipal by-laws tion of the United States can be impaired or and ordinances, and even legislative enact- destroyed by a state enactment, whatever ments undertaking to regulate useful busi- may be the source from which the power to ness enterprises, are subject to investigation pass such enactment may have been derived. in the courts with a view to determining 'The nullity of any act inconsistent with whether the law or ordinance is a lawful ex- the Constitution is produced by the declaraercise of the police power, or whether, under tion that the Constitution is the supreme the guise of enforcing police regulations, law.' The state has undoubtedly the power, there has been an unwarranted and arbitrary 'by appropriate legislation, to protect the public morals, the public health, and the the further maintenance and continuance of public safety; but if, by their necessary oper- such works, and the prosecution of the busiation, its regulations looking to either of ness, originally harmless, may become, by those ends amount to a denial to persons reason of the manner of its prosecution or a within its jurisdiction of the equal protec. changed condition of the community, a mention of the laws, they must be deemed un

deemed un- ace to the public health and safety. In other constitutional and void. Gibbons v. Ogden, words, the right to exercise the police power 9 Wheat. 1, 210, 6 L. ed. 23, 73; Sinnot v. is a continuing one, and a business lawful Davenport, 22 How. 227, 243, 16 L. ed. 243, to-day may, in the future, because of the 247; Missouri, K. & T. R. Co. v. Haber, 169 changed situation, the growth of population, U. S. 613, 626, 42 L. ed. 878, 882, 18 Sup. or other causes, become a menace to the pubCt. Rep. 488.”

lic health and welfare, and be required to This principle was recognized and applied yield to the public good. North Western Ferin the supreme court of California in a case tilizing Co. v. Hyde Park, 97 U. S. 659, 24 decided later than the one under considera- L. ed. 1036; New Orleans Gaslight Co. v. tion (Re Smith, decided May 31, 1904, 143 Louisiana Light & H. P. & Mfg. Co. 115 U. Cal. 368, 77 Pac. 180), in which it was held S. 672, 29 L. ed. 524, 6 Sup. Ct. Rep. 252. that a county ordinance making it a mis. But the exercise of the police power is subdemeanor to maintain a gasworks within a ject to judicial review, and property rights sparsely settled district was unreasonable cannot be wrongfully destroyed by arbitrary and void. In that case the court, after again enactment. It was averred that the works quoting from Munn v. Illinois, to the effect would be so constructed as not to interfere that the courts will not interfere with laws with the health or safety of the people. No which are within the scope of legislative reasonable explanation for the arbitrary expower, well said:

ercise of power in the case is suggested. The “But running current with this principle, narrowing of the limits within which the and to be read with it, is one of equal im- plaintiff in error, in compliance with the orportance,-namely, that when the police pow-dinance of the city and the permit of the er is exerted to regulate a useful business or board of fire commissioners, was proceedoccupation, the legislature is not the excluing to erect the gasworks, to the smaller and sive judge as to what is a reasonable and just more limited section, was not demanded by restraint upon the constitutional right of the the public welfare, and, taking the facts as citizen to pursue any trade, business, or vo- alleged in the bill, seems rather to have been cation which in itself is recognized as inno actuated by the purpose to exclude the plaincent and useful to the community. It is al- tiff in error from further prosecution of the ways a judicial question if any particular enterprise. The limits of the privileged disregulation of such right is a valid exercise trict were fixed late in August. In Septemof police power, though the authority of the ber the complainant began the construction courts to declare such regulation invalid of the works. In November, without changed will be exercised with the utmost caution, conditions or adequate reason, the council, and only when it is clear that the ordinance by an amended ordinance, draw a line emor law declared void passes the limits of the bracing a part of the district including the police power, and infringes upon rights complainant's property, and declare that, guaranteed by the Constitution.”

too, shall be prohibited territory. This acApplying the principles settled by these tion is strongly corroborative of the allegadecisions to the allegations of the bill, admit- tions of the bill that the purpose was not ted by the demurrer, we think a case is made police regulation in the interest of the pubwhich called for the protection of the courts lic, but the destruction of the plaintiff's against arbitrary interference with the rights, and the building up of another comrights of the plaintiff in error. Complying pany still within the privileged district aftwith the terms of the ordinance which was er the passage of the amendment. Being the in force when the plaintiff in error was about owner of the land, and having partially to begin the erection of the gasworks in con- erected the works, the plaintiff in error had troversy, a tract of land was purchased with acquired property rights, and was entitled in the district wherein the erection of such to protection against unconstitutional enworks was permitted, a contract was entered croachments which would have the effect to into for the construction of the works, a con- deprive her of her property without due siderable sum of money was expended. It process of law. It is a verred in the bill of may be admitted as being a correct statement complaint that the district within which the of the law as held by the California supreme works were being erected was one given over court that, notwithstanding the grant of the to manufacturing enterprises, some of which permit, and even after the erection of the were fully as obnoxious as gasworks possibly works, the city might still, for the protec- could be; that it contained large spaces of tion of the public health and safety, prohibit 'unoccupied lands, worthless except for manufacturing purposes, and, by clear inference, This case was cited with apparent approval that there was nothing in the situation by Mr. Justice Matthews in delivering the which rendered it necessary, in order to opinion of this court in Yick Wo v. Hopkins, protect the city from a noisome and un- 118 U. S. 356, 30 L. ed. 220, 6 Sup. Ct. Rep. healthy business, to decrease the area with 1064; and see Dill. Mun. Corp. 4th ed. § in which gasworks could lawfully be erect. 311. ed.

In this case we think the allegations of It is urged that, where the exercise of leg- the bill disclose such character of territory, islative or municipal power is clearly with such sudden and unexplained change of its in constitutional limits, the courts will not limits after the plaintiff in error had purinquire into the motives which may have act-chased the property and gone forward with uated the legislative body in passing the the erection of the works, as to bring it law or ordinance in question. Whether, within that class of cases wherein the court when it appears that the facts would author. may restrain the arbitrary and discriminaize the exercise of the power, the courts will tory exercise of the police power which restrain its exercise because of alleged wrong. amounts to a taking of property without due ful motives inducing the passage of an or- process of law and an impairment of propdinance, is not a question necessary to be erty rights protected by the 14th Amend. determined in this case; but where the facts ment to the Federal Constitution. as to the situation and conditions are such as to establish the exercise of the police that a court of equity will not enjoin prosepower in such manner as to oppress or dis- cution of a criminal case; but, as we have criminate against a class or an individual, seen, the plaintiff in error in this case had the courts may consider and give weight to acquired property rights which, by the ensuch purpose in considering the validity of forcement of the ordinances in question, the ordinance. This court in the case of would be destroyed and rendered worthless. Yick Wo v. Hopkins, 118 U. S. 356, 30 L. If the allegations of the bill be taken as ed. 220, 6 Sup. Ct. Rep. 1064, held that, al- true, she had the right to proceed with the though an ordinance might be lawful upon prosecution of the work without interference its face, and apparently fair in its terms, by the city authorities in the form of aryet, if it was enforced in such a manner as rest and prosecution of those in her emto work a discrimination against a part of ploy. the community, for no lawful reason, such It is well settled that, where property exercise of power would be invalidated by rights will be destroyed, unlawful interthe courts.

ference by criminal proceedings under a In some of the states, perhaps in most, void law or ordinance may be reached and the right to build and maintain gasworks is controlled by a decree of a court of equity. derived from the state, but subject to mu- Davis & F. Mfg. Co. v. Los Angeles, 189 U. nicipal control as to the use of the streets S. 207–218, 47 L. ed. 778–780, 23 Sup. Ct. and the prices to be charged to consumers. Rep. 498, and cases therein cited. In Ohio this price is regulated for stated pe- Upon the whole case, we are of opinion riods. Could it be successfully maintained that the demurrer should have been overthat, after the erection of the works, and ruled and the city of Los Angeles put upon the fixing of prices for a term of ten years, its answer. at the expiration thereof, and exercising the For the reasons herein stated, the judg. right to fix prices for a new term, the coun- ment of the Supreme Court of California is cil could arbitrarily, and with a view of reversed, and the cause remanded to that compelling the sale of the works to the mu- court for further proceedings not in connicipality or a rival company, fix the rate at flict with this opinion. a price below the cost of gas to the producer, and at such a rate as to be ruinous to the

195 U. S. 242) business? In State es rel. Atty. Gen. v.

MARTIN DALY, Plff. in Err., Cincinnati Gaslight & Coke Co. 18 Ohio St. 262, it was held to be the legislative intention, in empowering city councils to regulate CHARLES ELTON, Chief of Police of the

City of Los Angeles. the price of gas, to limit such companies to fair and reasonable prices, and if, in the

Constitutional law-interference with propcolorable exercise of this power, a majority

erty rights--police power-municipal limof the members of the council, for a fraudu

its for gasworks. lent purpose, combine to pass an ordinance fixing the price of gas at a rate at which

This case is governed by the decision in Dobthey well know it cannot be manufactured bins v. Los Angeles, ante, 18. and sold without loss, such an ordinance would impose no obligation on the company.

[No. 108.]

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