The application is for a writ of certiorari to review and annul the judgments entered in said courts, rendered in a criminal action prosecuted by the people against said petitioner, for the violation of a certain ordinance of said city of Sacramento.

The petition filed herein shows that petitioner • is a public utility corporation and owns and operates a street railway system in the city of Sacramento consisting of approximately sixteen miles of double track, and eight miles of single track; that, during the years 1908 to 1912, inclusive, petitioner, under contracts therefor with the city of Sacramento, spruuded the streets occupied by its tracks and received from said city as compensation therefor under said contracts the sum of $9,527.00, which sum was raised therefor by said city through the exercise of its regular taxing powers. The city commission of the city of Sacramento passed the ordinance in question, designed to compel the petitioner, at its own expense, during certain specified months of each year, to sprinkle a portion of said streets. Believing that said ordinance was void and of no effect, petitioner failed and refused to comply with any of the provisions thereof, whereupon an action was commenced against petitioner in the police court of said city and, notwithstanding petitioner’s objections thereto that said ordinance was void and the court without jurisdiction thereunder, petitioner was prosecuted for and convicted of violating the same and fined four hundred dollars therefor, which judgment was afterwards affirmed by the superior court.

Said ordinance is as follows:

The charging part of the complaint filed in said police court against petitioner was as follows:

There is much discussion in the briefs as to whether the writ of certiorari will lie in such case as this where a trial has been had in an inferior court, an appeal regularly taken to the superior court, and the judgment of the inferior court has been affirmed. Some doubt as to this is created by the decisions. For the purpose of this determination, however, we may assume that an application for the writ may be entertained.

The remaining question is whether the ordinance must be held to be inoperative and void—in other words, beyond the authority of the legislative council to enact. There is no controversy as to the regularity of any of the proceedings, but the sole contention is that petitioner committed no offense, by virtue of the fact that said ordinance, being invalid, could create or constitute the basis for no offense. We may observe, also, that the pronouncement of petitioner is not aided by any extraneous evidence as to the reasonableness of said ordinance, but the justification of its position is sought in the plain significance of said provisions themselves in connection with the terms of petitioner’s franchise. Respondent’s contention is grounded in the proposition that said enactment is within the legal exercise of the police power of the municipality. Correlated to this is the affirmation by respondents that, in order to prevail, the burden is upon petitioner to show that said ordinance is invalid, all the presumptions being in favor of its validity.

For a discussion of the nature and extent of the police authority of municipalities we may refer to Pond on Public Utilities, sec. 93; Richmond etc. R. R. Co., v. Richmond, 96 U. S. 521 , [ 24 L. Ed. 734 ]; In re Montgomery, 163 Cal. 457 , [Ann. Cas. 1914A, 130, 125 Pac. 1070 ] ; Elliott on Roads and Streets, secs. 84, 85; In re Junqua, 10 Cal. App. 602 , [ 103 Pac. 159 ]; In re San Chung, 11 Cal. App. 511, 517 , [ 105 Pac. 609 ] ; In re Ackerman, 6 Cal. App. 5, 9 , [ 91 Pac. 429 ]; Town of St. Helena v. San Francisco etc. Ry., 24 Cal. App. 71 , [ 140 Pac. 600, 605 ]; County of Plumas v. Wheeler, 149 Cal. 758, 762 , [ 87 Pac. 909 ]. It is probably sufficient to quote, of the above, from the Junqua ease, as follows:

It is well to note that the police power is assured by an express provision of the constitution, as follows: “Art. XI sec. 11. Any county, city, town or township may make and enforce within its limits all such local, police, sanitary and other regulations as are not in conflict with the general laws. ’ ’ That the sprinkling of the streets so as effectually to lay the dust is demanded by considerations of health and comfort, of course will not be gainsaid, and that the burden of such remedial measure should be imposed upon the agency producing the inconvenience, discomfort, and menace to the health of the community would seem to be a just and equitable regulation and discrimination. And it may be remarked, in this connection, that this view is taken by the authorities which have been called to our attention- by respondents.

In Elliott on Railroads, section 1082, it is said: “A municipal corporation cannot by contract surrender or alienate its governmental or police powers which the public welfare demands it should exercise. All rights granted to a municipality or contracts made by it with reference to the use of the streets are subject to its exercise of its police power, and a railroad company which secures the right to use the streets of a city takes such right subject to all reasonable regulations and ordinances enacted by the city in the exercise of its police power. Thus it has been held that a municipality may enact and enforce an ordinance requiring a street-railway company to keep down the dust by sprinkling the tracks. ’ ’ (See, also, Tiedeman on Limitations of Police Power, sec. 194; Dillon on Municipal Corporations, 5th ed., sec. 1276; Elliott on Roads and Streets, sec. 958; Nellis on Street Railways, sec. 157; McQuillan on Municipal Corporations, sec. 3774; 2 Wilcox on Municipal Franchises, p. 691.)

In State ex. rel. Milwaukee v. Milwaukee E. R. & L. Co., 144 Wis. 386 , [ 140 Am. St. Rep. 1025 , 129 N. W. 623 ], an ordinance similar to the one under consideration was involved. It required all street railway companies to sprinkle with water the entire roadbed of the railways operated,' between single tracks and double tracks and one foot outside of all tracks, as well as the space between double tracks. The sprinkling was to be done between April 1 and November 1 and the entire expense was to be borne by the street railway companies, except that the city was to furnish water free of charge. The defendant refused to comply with the ordinance and the rules adopted in pursuance thereof, and the city commenced a mandamus proceeding to compel the defendant to comply with the terms of the ordinance. The respondent contended that the city had no authority to pass such an ordinance. The city justified on three grounds: 1. A provision in its charter authorizing it to provide for the sprinkling of streets; 2. Broad police powers conferred on it empowering it to pass legislation abating nuisances and conserving the public health; 3. A statute of 1898. The court said:

"Ordinances requiring street-railway companies to sprinkle the streets immediately adjacent to their tracks have been held valid by a number of courts. (City & S. Ry. Co. v. Mayor, etc., of Savannah, 77 Ga. 731 , [ 4 Am. St. Rep. 106 ]; State v. Canal & C. R. Co., 50 La. Ann. 1189 , [56 L. R. A. 287, 24 South, 265 ]; Newcomb v. Norfolk W. St. Ry. Co., 179 Mass. 449 , [ 61 N. E. 42 ]; Chicago v. Chicago U. T. Co., 199 Ill. 259 , [59 L. R. A. 666, 65 N. E. 243 ].) No decisions to the contrary have been cited and we have found none. Only in a case which is clear beyond a reasonable doubt will the courts declare laws void which are adopted under the police power in the interest of the public health. The validity of a city ordinance is tested by the same rule. (Citing cases.) We entertain no doubt that the power existed to pass an ordinance of the general character of the one adopted, provided such power was exercised in a proper manner.” After considering the question of the reasonableness of the ordinance, the court proceeded: “It is next claimed that the ordinance is void because it is discriminatory. ... In the matter of stirring up dust and setting it in motion, street-car lines easily fall into a class by themselves. Their cars are large and heavy and run at a high rate of speed and with great frequency. The bodies of such cars rest close to the surface of the street. They occupy a very considerable of the best portion of the streets to the exclusion of the general public a large part of the time. • They run on tracks which create peculiar conditions for the accumulation of dust and dirt, and they occupy the streets by permission from the common council and not as a matter of absolute right. No other agency stands on the same footing with the street-cars in the matter of raising dust. ... Of course, many different kinds of vehicles occupy the streets and all stir up more or less dust when the necessary conditions exist, but it does not follow that because all are not called upon to contribute all must escape. This would entirely exclude the idea of classification. The purpose of this law is to provide for the sprinkling of a well defined portion of the public streets of the city. The appellant has, under the franchise granted to it, a paramount right to use and occupy this particular part of the street. In so doing, it is largely responsible for setting in motion the dust that arises therefrom and falls within a class by itself.”

In the case above cited, State v. Canal & C. R. Co., 50 La. Ann. 1189 , [ 24 South. 265 ], also found in 56 L. R A. 287, the supreme court of Louisiana said: “Of course, it is idle for the council to attempt to coerce those corporations to so operate their cars as to create no dust. That would be a physical impossibility. Hence, the city council has attempted to do the only thing which, in our opinion, it was possible for them to have done; that is, to pass an ordinance requiring' them ‘to water their tracks so as to effectually keep the dust laid on same. ’ On reason and authority, we are of opinion the ordinance of the city council of the city of New Orleans must be sustained as a legal exercise of the police power, and as neither indefinite nor unreasonable.” (See Chester v. Chester Trac. Co., 5 Pa. Dist. Reps. 609; City of St. Paul v. Haughbro, 93 Minn. 59 , [ 106 Am. St. Rep. 427 , 2 Ann. Cas. 580, 66 L. R. A. 441, 100 N. W. 470 ] ; City of St. Paul v. St. Paul City R. Co., 114 Minn. 250 , [Ann. Cas. 1912B, 1136, 36 L. R. A. (N. S.) 235, 130 N. W. 1108 ]; Pittsburgh etc. R. Co. v. Birmingham, 51 Pa, 41; Mayor of City of Baltimore v. Baltimore Trust & Guarantee Co., 166 U. S. 673 , [ 41 L. Ed. 1160 , 17 Sup. Ct. Rep. 696].)

As a matter of some importance and bearing upon the question, and as evidence of a general affirmation of such police power, we may also refer to the fact that many cities have recognized this as the rule and have adopted ordinances in accordance therewith. For instance, the city of Chicago has the following ordinance:

An ordinance of Memphis and an ordinance of St. Louis are to the same effect.

We think that it would be going a long way toward unjustifiable interference with that discretion in such matters committed by the constitution to the various municipalities of the state if we should hold that this ordinance upon its face bears the proof of unreasonableness and injustice. The truth is, of course, as we have seen, that the presumptions are in its favor. We must assume, in the absence of a showing to the contrary, that it is a reasonable requisite to promote the comfort and health of the community and that the particular injury complained of is caused entirely by the acts of petitioner. We may go further and declare the assumption that the ordinance will be given a reasonable construction and application so as to embarrass and burden as little as possible this corporation, engaged as it is in an important public ser- / vice. We cannot hold that petitioner will or may be required under this ordinance to water the streets from curb to curb. The object is effectually to lay the dust that would otherwise be disturbed and disseminated by the operation of petitioner’s cars. This could probably be accomplished by j sprinkling the track and one or two feet on the outside and i by means of the operation of the sprinkler along the rails. At least, we may so assume in the face of the record before us. Nor need petitioner be apprehensive that it will be mulcted in damages for a slight disturbance of the dust.

All that any just and reasonable court would require is that an effort be made in good faith to comply with the terms of said ordinance, and we venture to assert that the difficulty and expense incident to the fair operation and execution of said ordinance have been greatly exaggerated by petitioner. It must be assumed that there is no desire on the part of the city officials wantonly to embarrass petitioner and that a reasonable attitude of acquiescence toward a just policy for the promotion of the public health, safety, and comfort will enure to the benefit of petitioner as well as to the community generally.

We entertain no doubt that petitioner has failed to make a sufficient showing to justify us in holding said ordinance invalid, and the order to show cause is discharged and the writ denied.

Chipman, P. J., and Hart, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on November 26, 1915.