By ordinance the city of Sacramento made it the duty of—
'every person, firm or corporation owning, controlling or operating any street railroad, suburban railroad, or interurban railroad upon and along any of the streets of the city of Sacramento shall, without cost to the city during the months of June, july, August, September and October of each year, and at such other times as may be necessary to keep the dust laid, sprinkle with water the surface of the street, occupied by such railroad, between the rails and tracks and for a sufficient distance beyond the outermost rails thereof, so as to effectually lay the dust and prevent the same from arising when the cars are in operation.'
The gas company, plaintiff in error, operated lines of street railway in Sacramento under franchise granted by the city. It refused to obey the ordinance and was prosecuted in the city police court and there asserted that the ordinance was in conflict with the due process and equal protection of the laws clauses of the Fourteenth Amendment to the Constitution of the United States.
From a sentence imposing upon it a money penalty, it appealed to the superior court for the county of Sacramento, and from the judgment of that court confirming the conviction it prosecuted an appeal to the Supreme Court of the state, which court refused to review the case on the ground that it was without jurisdiction. Thereupon the company, alleging the illegality of the conviction upon various grounds, among others that the ordinance was repugnant to the Fourteenth Amendment, petitioned the District Court of Appeal for the Third Appellate District for a writ of certiorari requiring the superior court to send up the record for review. The petition was demurred to as stating no cause of action and on the further ground that it disclosed no jurisdiction in the court to review. Although it expressed doubt on the subject, the court took jurisdiction, reviewed the conviction, held that the city had power under the state Constitution and laws to pass the ordinance and that it was not repugnant to the Constitution of the United States. The certiorari was refused. A review of this judgment was then asked at the hands of the Supreme Court of the state, but that court again refused to interfere on the ground of its want of jurisdiction. The writ of error which is before us was then prosecuted by the gas company to the judgment of the District Court of Appeal refusing to grant the writ of cortiorari.
At the threshold a motion to dismiss requires to be considered. It is based upon the ground that the court below had, under the state Constitution and laws, no power to review by certiorari the action of the superior court and therefore that court was the court of last resort competent to decide the cause. But his disregards the fact that the District Court of Appeal assumed jurisdiction of the cause and that the Supreme Court of the state declined to review its judgment for want of jurisdiction. As whether, under the circumstances, the District Court of Appeal rightfully assumed jurisdiction by certiorari is a question of purely state law which we may not review, the judgment of that court is the judgment of the state court of last resort having power to consider the case and the motion to dismiss is denied.
Besides the due process and equal protection clauses of the Fourteenth Amendment, the contract clause of the Constitution of the United States is relied upon in the assignments. In argument however that contention is based, not upon the impairment by the ordinance of any particular contract right, but upon the unwarranted burden which it is asserted would result from enforcing the ordinance as against the railroad company because of the general authority which it possessed under its franchises to operate its railroad in the streets. But this at once establishes that the consideration of the contract clause is negligible and hence that it is only necessary to pass upon the contentions under the due process and equal protection clauses. This results, since if the police power of the city, to provide by the ordinance for the protection of the health and safety of the people, was unrestrained by any contract provision, the police power necessarily dominated the right of the company under its franchises to use the streets and subjected that right to the authority to adopt the ordinances in question.