In Re Wilcox

Citations

• 111 P. 374
• 14 Cal. App. 164
• 1910 Cal. App. LEXIS 131

Syllabus

<p>Municipal Ordinance—Street Excavations—Deposit of Bond or Money for Restoration—Eee as Condition of Receipt—Conflict With General Law.—That portion of a municipal ordinance relating to street excavation - which requires the payment of a fee to the street superintendent, as a condition of the obtaining of a receipt for a deposit of a bond or money in lieu thereof to secure the restoration of the street, is invalid, as being in conflict with the general law embodied in section 2075 of the Code of Civil Procedure, that “whoever pays money, or delivers an instrument or property, is entitled to a receipt therefor from the person to whom the payment or delivery is made, and may demand a proper signature to such receipt as a condition of the payment or delivery.”</p> <p>Id.—Notice to City of Intention to Excavate—Basis for Computation of Cash Deposit.—That portion of the municipal ordinance requiring written notice to be given to the city of an intention to excavate is intended solely as a basis for computation where a cash deposit is made.</p> <p>Id.—Notice, When not Required—Waiver—Giving of Bond.—Notice to the city is waived when the city fixes the amount of the deposit without notice; and no notice is required when a bond is given, the amount of which is arbitrarily fixed by the statute.</p> <p>Id.—Notice not a Basis fob Constitutional Right of Water Company to Excavate.—In no event can notice be required as a basis for the right of a water company to enter upon a street for the purpose of making excavations in which to lay pipes for the distribution of water to the citizens of the municipality. That right is by virtue of a constitutional franchise, and it cannot be withheld by the city.</p> <p>Id.—Bower of City to Make General Regulations for Damages— Uniformity Essential.—The only power possessed by the city, in the ease of a water company, is to make general regulations for damages and indemnity for damages, and to require the work to be done under the direction