I dissent: I can see no essential difference between this case and In re Johnston 137 Cal. 115, [69 P. 973], nor do I agree with the statement in the prevailing opinion that under the ordinance of San Francisco the board of supervisors has no discretion in granting or refusing the certificate for which that ordinance provides. The very provision that a permit must be asked for is one which involves the exercise of discretion by the granting power. The Johnston proceeding dealt with the vested rights of a public service corporation which had laid its pipes in a public street of a city under the authority of section 19 of article XI as it existed prior to the recent amendment. The ordinance there under analysis was very similar to the one here involved. Like this one, it required a written application setting forth the size and character of the proposed excavation and the purpose for which it was to be used. After compliance with this requirement and such ordinances of the city as were then in existence or might thereafter be passed regulating the tearing up or excavation of public streets or places, the *Page 776 applicant would be entitled to a permit from the superintendent of streets authorizing the excavation described in the application. There was another ordinance of the city of Pasadena, in which Johnston's alleged violation of the law occurred, requiring that an indemnity bond in the sum of five hundred dollars be filed as a prerequisite to a permission from the superintendent of streets for any person to excavate any portion of a public street. After quoting the provisions of the section of the constitution then in force, and pointing out the fact that the municipality could do no more than prescribe general and uniform regulations "for damages and indemnity for damages," applicable to all who might desire to exercise the privilege of occupying the streets under constitutional grant, this court held the ordinance invalid and released the petitioner Johnston, who had been charged with a violation thereof. On page 120 of the opinion we find this language: "When the sovereign authority of the state, either in its constitution or through its legislature, has created a right and expressed and defined the conditions under which it may be enjoyed, it is not within the province of a municipality where such right is sought to be exercised or enjoyed to impose additional burdens or terms as a condition to its exercise. The constitution does not authorize the municipality to require a permit as a condition upon which the pipes may be laid in its streets, and its claim of a right to require a permit includes the right to refuse one, and the right to annex one condition to the exercise of the privilege implies the right to annex others, which may at least impair, if not in fact amount to a denial of its exercise."
Respondent's counsel insist that the ordinance under review here is a proper exercise of the police power. The same argument was presented in the Johnston case, but this court said: "The ordinance in question is not an exercise of the police power, nor can it be justified under that authority. The exercise by a municipality of the police power over its streets is limited to the protection of the public in their use of the streets, and does not include a limitation upon their use for any legitimate purpose. The highways of a state, including the streets in its cities, are under the control of the people of the state, and, in this state, the people have declared in their constitution that the streets of a city may be *Page 777 used for laying pipes therein for supplying its inhabitants with gaslight. Under the provision that the work shall be done `under the direction of the superintendent of streets,' ample protection is afforded to the inhabitants of the city against any unnecessary encroachment or hindrance in their use of the streets."
The requirement for a deposit to cover expenses and detriment caused to the street by making an excavation is one entirely beyond the power of the supervisors as defined by the opinion in the Johnston case. If a majority of the justices of this court wish to declare in terms that In re Johnston, 137 Cal. 115, [69 P. 973], is no longer a correct declaration of the law I shall not dissent, but I feel impelled to do so now because I believe that the opinion in that proceeding and the one prepared by Mr. Justice Sloss in this are in conflict upon the fundamental question involved in each.
Rehearing denied. *Page 778