1901, passed a second ordinance, amending the first ordinance, and thereby so limiting the boundaries of the territory within which the erection of gasworks was permitted in said city as to include the premises of the plaintiff in error within the prohibited territory. The work of constructing the works was continuously prosecuted until the latter part of February, 1902, when the plaintiff in error alleges that the city of Los Angeles, combining and confederating with one James R. C. Burton and other persons unknown, caused certain employés of the company engaged in the erection of said works to be arrested, charged with the violation of the said city ordinance. Other arrests were made on the first and third of March, 1902. On March 3, 1902, the city council passed a third ordinance, amending the ordinance of November 25, 1901, in respect to the description of the district within which gasworks could be erected. On March 6, 1902, the city caused the arrest of certain persons employed by the company in charge of the erection of the works, charged with the violation of the amended city ordinance. It is averred that the adoption by the city council of the ordinances aforesaid and the attempted enforcement thereof were instigated by officers and agents of the Los Angeles Lighting Company, a corporation engaged in manufacturing and supplying gas in said city, and having a monopoly of said business therein. It is further averred that the action of the municipal authorities complained of was taken for the purpose of protecting the said Los Angeles Lighting Company in the enjoyment of its monopoly. It is also claimed that the territory surrounding the premises of the plaintiff in error, and within which, under the ordinance of August 26, in force when the complainant made her purchase and located and begun the erection of the gasworks it was lawful so to do, and which by the amending ordinances was added to the prohibited territory, was and is a district devoted almost exclusively to manufacturing enterprises. Within its boundaries there is a large amount of vacant and unoccupied land, which is and VOL. CXCV-15 Argument for Plaintiff in Error. 195 U.S. will continue to be useless except for the erection of manufacturing establishments; within which were located at that time a soap factory, a wool pulling factory, three wineries,. numerous oil wells in operation, iron foundry, brass foundry, oil refinery; immediately east of said tract railroads and an extensive tannery; immediately north the oil tanks and refinery of the Standard Oil Company. That the works being constructed for the plaintiff in error are to be built upon concrete foundations with a superstructure of non-combustible material, so that there can be no danger from explosion, bursting or leaking. The machinery is to be of the most approved pattern and that there can be no leakage or escape of odors or any interference with the health, comfort or safety of the inhabitants of the city. The plaintiff in error, relying upon the protection of the Fourteenth Amendment to the Constitution' of the United States, prays that the permit granted by the board of fire commissioners be declared to be a valid and subsisting contract between the city of Los Angeles and herself, and that all ordinances passed by the city council in contravention thereof be declared void; that the defendant be enjoined from enforcing said ordinances against the plaintiff, from delaying or interfering with the action of the plaintiff in erecting the said works, from interfering with the maintenance and operation of the same, and for general relief. Mr. Lynn Helm and Mr. Edward C. Bailey, with whom Mr. Henry T. Lee, Mr. J. R. Scott and Mr. Charles W. Chase were on the brief, for plaintiff in error: In passing upon a municipal ordinance, it is necessary to its validity that its provisions should be determined to be reasonable. Oxanna v. Allen, 90 Alabama, 468; Tugman v. Chicago, 78 Illinois, 405; Chicago v. Rumpf, 45 Illinois, 90; Toledo Railroad v. Jacksonville, 67 Illinois, 37; Lake View v. Tate, 130 Illinois, 247. The determination hv the legislative body of what is a 195 U. S. Argument for Plaintiff in Error. proper exercise of the police power is not final nor conclusive, but is subject to the supervision of the courts, and what is a reasonable ordinance is a judicial, and not a legislative, question. Covington Turnpike Co. v. Sandford, 164 U. S. 578, 592; Lawton v. Steel, 152 U. S. 153; Holden v. Hardy, 169 U. S. 366; In re Smith, 77 Pac. Rep. 180; Ex parte Whitwell, 98 California, 73; Ex parte Sing Lee, 96 Colorado, 354; 1 Tiedeman on State and Federal Control, 238; Jew Ho v. Williamson, 103 Fed. Rep. 10, 17-20; Weill v. Ricord, 24 N. J. Eq. 169; Yates v. Milwaukee, 10 Wall. 497; People v. Budd, 117 N. Y. 1. See contra, Dobbins v. Los Angeles, 139 California, 179, and Munn v. Illinois, 94 U. S. 113, distinguished. In Maxwell v. Fulton, 119 Indiana, 23; Whittington v. Pope, 1 Har. & J. 236; Cooley's Const. Lim. 6th ed. 247, et seq., distinguished. The legislature is distinguished from a municipal council in enacting its police provisions and is not subject to review by the courts merely because its laws may be unreasonable. In determining the validity of an ordinance the objects and purposes sought to be accomplished are always scrutinized by the courts, and in so doing they are not limited to those matters which appear upon the face of the ordinance or of which they may take judicial notice, but may consider all the circumstances in the light of existing conditions. Cases cited under first point and see Ex parte Patterson, (Tex.) 58 S. W. Rep. 1011; People v. Armstrong, 73 Michigan, 288; Wreford v. People, 14 Michigan, 41, 46; Cleveland Ry. Co. v. City of Connersville, 147 Indiana, 277; State v. Boardman, 93 Maine, 73; Corregan v. Gage, 68 Missouri, 571; Pieri v. The Mayor, 42 Mississippi, 493;;Town of Kosciusko v. Slomberg, 68 Mississippi, 469; Crowley v. West, 52 La. Ann. 526. The motives which actuate a municipal council in the adoption of ordinances are material as showing the objects and purposes for which the ordinances are adopted. Yick Wo v. Hopkins, 118 U.S.356; In re Ho Ah Kow, Fed. Case No. 6546; C. B. & Q. Railroad v. Chicago, 116 U. S. 234; Dillon on Mun. Argument for Plaintiff in Error. 195 U. S. Corp. 4th ed. §311; State v. Cincinnati Gas Light Coke Co., 8 Ohio St. 262. The ordinance of Los Angeles involved is invalid and not binding upon the plaintiff in error as against her right to conduct a lawful business of erecting gasworks and manufacturing gas for the following reasons: It is in violation of the rights, privileges and immunities of a citizen of carrying on a lawful occupation within that city. The business of erecting or maintaining a gasworks is a lawful occupation. Constitution of the State of California, Art. XI, § 19; Ex parte Johnson, 137 California, 115; People v. Stevens, 62 California, 209. A municipality has not the power or right to impose additional burdens or terms or conditions to the exercise of rights created by the sovereign authority of the State in its constitution. Restrictions in the exercise of these rights are not regulations and at least impair if they do not deny the exercise of the right. Summit v. N. Y. & N. J. Tel. Co., 57 N. J. Eq. 123; Atlanta v. Gate City Gaslight Co., 71 Georgia, 106; Michigan Tel. Co. v. Benton Harbor, 121 Michigan, 512; Wisconsin Tel. Co. v. Oshkosh, 62 Wisconsin, 32; Appeal of Pittsburg, 115 Pa. St. 4; Millvale v. Evergreen Railway Co., 131 Pa. St. 1; Harrisburg City Pass. R. R. Co. v. Harrisburg, 149 Pa. St. 465; State v. Flad, 23 Mo. App. 185; Hodges v. Telegraph Co., 72 Mississippi, 910. This ordinance is void in that it is unreasonable because it does not describe the district to which gasworks shall be confined by any geographical or natural boundary or by any reasonable designation. This ordinance is invalid because it is an attempt on the part of the city council to define and make that a nuisance which is not a nuisance per se. Gasworks are neither in their erection nor maintenance a nuisance per se and it is not within the power of the city council to pass an ordinance making that a nuisance which is not a nuisance per se, nor could such a declaration make it a nuisance unless it in fact had that 195 U.S. Argument for Plaintiff in Error. character. Yates v. Milwaukee, 10 Wall. 497; C. R. I. & P. R. R. v. Joliet, 79 Illinois, 39; Everett v. Council Bluffs, 46 Iowa, 66; Ex parte Sing Lee, 96 California, 354; Los Angeles v. Hollywood Cemetery Assn., 124 California, 344; Grossman v. Oakland, 30 Oregon, 478; Stockton Laundry Case, 31 Fed. Rep. 680; In re Hong Wah, 82 Fed. Rep. 623, 624, 626; Ex parte Whitall, 98 California, 73; Wood on Nuisances, § 744 The power granted in the city charter to abate nuisances does not give power to prevent except in those cases of nuisances per se, and those things which only become nuisances because of the method of their operation cannot be prevented and stopped under the power to abate until it has been demonstrated they are nuisances. Lakeview v. Letz, 44 Illinois, 81, 83. The ordinance of November 25, 1901, was repealed by the ordinance of March 3, 1902. The ordinances are on the same subject matter. The latter ordinance covers the whole subject matter of the earlier and will repeal the former. 23 Am. & Eng. Ency. of Law, 485. The later ordinance is invalid for the reason that it is in violation of the vested rights acquired by Mrs. Dobbins, by virtue of her purchase of land within the limits of the district within which it was lawful to erect gasworks by the terms of the earlier ordinance and by virtue of the permit granted to her by the fire commissioners under the existing building and fire ordinances. The rights acquired by said plaintiff in error were vested rights. Calder v. Bull, 3 Dall. 394; Farrington v. Tennessee, 95 U. S. 679; Steamship Co. v. Jolliff, 2 Wall. 457; Worth v. Cransen, 98 U. S. 118; Classen v. Chesapeake Guano Co., 81 Maryland, 258; Roberts v. Brooks, 71 Fed. Rep. 914'; Baltimore Trust Co. v. Baltimore, 64 Fed. Rep. 153; Levis v. Newton, 75 Fed. Rep. 884; Cleveland City Railroad Co. v. Cleveland, 94 Fed. Rep. 385; City Railway Company v. Citizens' Street Railway Co., 166 U. S. 562. The ordinance of March 3, 1902, is void as depriving the said plaintiff in error of property without due process of law. |