Carr

Appellant filed this petition in the court below seeking a peremptory writ of mandate to compel respondent to issue a permit or lease to prospect oil and gas under the provisions of an act of the legislature approved May 25, 1921 (Stats. 1921, p. 404), on certain tide, overflowed or submerged lands in the city of Huntington Beach, California. Por brevity we will hereafter refer to this act as the Leasing Act. In each of the briefs originally filed all of the respective counsel agreed that the sole question to be determined upon this appeal was whether or not respondent was justified in refusing to issue the permit under that provision of section 4 of the Leasing Act, which is as follows: “Provided further, however, that in no case shall permits or leases be granted covering tide, overflowed or submerged lands, fronting on an incorporated city, or for a distance of one mile on either side thereof.” It was also agreed that appellant had taken all of the steps necessary leading up to the granting of the permit or lease. At the argument, and now in supplemental briefs filed, it is urged that the provision of the Leasing Act which we have quoted is unconstitutional.

The city of…