the requirement of a written consent to authorize the use of one's name or portrait by others for advertising or trade purposes is denounced as an interference with personal liberty 'without due process of law.' I am unable to see that this requirement is any more objectionable than was that in the statutes under consideration in the case of People v. Cannon, 139 N. Y. 32, [36 Am. St. Rep. 668, 34 N. E. 759], commonly known as the 'Bottling Act' (Laws 1887, p. 475, c. 377, amended by Laws 1888, p. 242, c. 181). That statute declared it to be unlawful for any person to fill with beverages or medicine any marked bottle, without the written consent of the person or corporation whose mark or device had been placed upon the bottle, and it was construed to be constitutional in all respects. It would not be difficult to refer to many examples of legislation in which the right to a civil remedy was made dependent upon the absence of consent in behalf of the party claiming to be injured. Thus the copyright laws of the United States prescribe the forfeiture of a book published in violation thereof, and permit a civil action for damages only where the publication of the copyrighted work is made 'without the consent of the proprietor of the copyright first obtained in writing signed in the presence of two or more witnesses.' Rev. St. U. S. sec. 4964 (U. S. Comp. St. 1901, p. 3413)."

Bartolloti contends that the act violates the provisions of section 11 of article I of the constitution of the state, which reads that "all laws of a general nature shall have a uniform operation"; as well as the clause of the fourteenth amendment to the federal constitution to the effect that no state shall "deny to any person within its jurisdiction the equal protection of the laws"; in brief, that the act is class legislation.

In support of this general claim as to the invalidity of the act, a discussion of which has to some extent been anticipated above, Bartolloti specifics certain more particular objections. He points out that the statute is silent as to the disposition of the contents of refilled receptacles; that it is not concerned with the intent operating in the mind of one who refills them, although it makes the refilling a crime; that it is not, therefore, directed at the possible adulteration of contents; and that it is designed, solely, for the protection of the owners of receptacles.

If these assertions were all justly made, there would be some room for the contention that the statute is class legislation, for the legislature may not pass laws intended to protect the owners of specific kinds of property in their ownership, to the exclusion of all other kinds, unless the property the owners of which are so protected is so different from property generally as to require or deserve the enactment of special laws in regard to it. This particular question we have discussed above. This law, however, was enacted partially for the purpose, as we have already stated, of protecting the public from the adulteration or imitation of a large and general class of commodities which lend themselves, with greater or less ease, to adulteration and imitation. It happens, incidentally, looking now at the act as for the protection of the public alone and forgetting what we have said above as to its features as a protection of ownership, that the venders of such commodities are by it protected in the use and ownership of the receptacles in which their wares are customarily sold. This is no objection to the validity of the statute. If the general public is protected by a statute in those matters in which the lawmaking power owes protection to the public in a due exercise of the police power, it can make no difference that the statute at the same time yields a peculiar benefit to some class or classes of persons. The commodities mentioned in the act may very well become known, and it is a matter of common knowledge that they do become known, by the coverings under which they are vended. Adulteration and imitation could therefore readily be accomplished if the receptacles were permitted indiscriminately to be re-used by any but the producers of the articles which they were originally designed to cover and which they have come to be recognized by the world as actually covering. The subject matter of the act bears a distinct and appropriate relation to its purpose to protect the public. (In re Griffenhagen, 18 N. Y. Supp. 29, note; People v. Cannon, supra; Commonwealth v. Anselvich, supra; Commonwealth v. Goldburg, supra.)

Section 4 of the act provides that whenever any person who has registered a description of the name or mark used by him on receptacles in which he vends his wares, as allowed by section 1, makes oath before a magistrate, that he has reason to believe that any of his receptacles are being unlawfully used or filled by any person, "the said magistrate must thereupon

issue a search-warrant to discover and obtain the same. Thereupon the magistrate may cause the alleged illicit holder of the receptacles to be brought before him, may inquire into the circumstances of his possession, must punish him if he finds him guilty, and must, in that event, award the possession of any property taken under the search-warrant to the

owner.

...

Bartolloti contends that section 4 is unconstitutional both as invading his right to personal liberty and his right of property. The record does not present the question of an unconstitutional invasion of the right to personal liberty. The amended petition for prohibition contains, aside from the statement of certain conclusions of law as to unconstitutionality, only the following allegation concerning the searchwarrant, omitting formal verbiage: "That . . . one Nate Volen made application to the said Police Court . . . for two search-warrants in the form of affidavits, . . . and thereupon the said Police Court . . . issued two search-warrants. that thereafter . . . your petitioner herein was served with said search-warrants and at the same time placed under arrest for the alleged violation" of the statute. From this language it plainly appears that the arrest may have been entirely separate and apart from all questions involving either the issuance or service or the conduct of any proceedings whatever under the search-warrant. Under the law Bartolloti could have been arrested under the provisions of section 2 of the act, without any attempt to resort to proceedings under search-warrant (Pen. Code, secs. 1426, 1426a, 1427); and we must assume against the pleader that he was so arrested. As a matter of fact, it is that section which he is charged with having violated.

Nor can any question arise here on the score of an invasion of Bartolloti's premises for the purpose of prosecuting search under the warrant. It will be noted that the amended petition alleges only that the search-warrant was "served." This falls far short of a statement that Bartolloti's property was invaded for the purpose of making search. It is conceivable that one to whom a search-warrant is delivered by an officer might surrender without search the property described in the warrant. But if we pass this question by, it is sufficient to say, granting that there was an invasion of Bartolloti's property under the search-warrant, that the act has been com

pleted, and that prohibition, from its very nature, cannot be invoked to prevent it.

It is palpable, also, that in this case no question can be presented because of the constitutional provision that property cannot be taken without due process of law, under the language of the statute commanding the magistrate to award to the owner any property taken under search-warrant. Even if we concede that the allegation of the petition that the warrant was served includes the statement that search was made under it, there is no allegation whatever that any property was either found or taken.

The judgment is affirmed.

Conrey, P. J., and James, J., concurred.

[Civ. No. 1678. Third Appellate District.-November 22, 1917.] TOWN OF SUISUN CITY (a Municipal Corporation), Respondent, v. PACIFIC GAS AND ELECTRIC COMPANY (a Corporation), Appellant.

MUNICIPAL CORPORATIONS-FRANCHISE FOR ELECTRIC LIGHT AND POWER PURPOSES ORDINANCE PARTLY VOID-CONSTITUTIONAL LAW.-An ordinance of a municipal corporation granting to a private individual a franchise to construct and maintain poles and wires upon its streets for the purpose of selling and disposing of electricity for both light and power purposes is void, in so far as it attempts to grant a franchise for lighting purposes, in view of section 19 of article XI of the constitution, but is valid as to the franchise for power purposes, and under the act of 1901 (Stats. 1901, p. 265) the city can only collect a percentage of the sales for power purposes.

APPEAL from a judgment of the Superior Court of Solano County. W. T. O'Donnell, Judge.

The facts are stated in the opinion of the court.

Wm. B. Bosley, and Leo H. Susman, for Appellant.

Meredith, Landis & Chester, Theodore W. Chester, and George J. Raymond, for Respondent.

THE COURT.-A rehearing was granted in this case for the purpose of considering the case of City of Hanford v. Hanford Gas etc. Co., 169 Cal. 749, [L. R. A. 1915E, 165, 147 Pac. 969], which was called to our attention for the first time in the petition for a rehearing. We find nothing in said case which, in our judgment, militates against the views expressed and the conclusion reached in our former opinion. The question as to the right of a municipality to exact from lighting and other like public service corporations the payment of certain sums for a franchise to operate its business in municipalities was not raised, considered, or discussed in the Hanford case, and it is, therefore, no authority for the position that municipalities may impose upon such corporations a charge upon gross receipts arising from the use of gas or electricity for lighting purposes. The cases cited in the original opinion filed herein seem clearly enough to hold that no charge for the use of gas or electricity for lighting purposes may, under the terms of section 19 of article XI of the constitution, as that section read when the franchise here involved was granted, be exacted from corporations furnishing the same in municipalities. Indeed, since the constitution itself directly grants to public service corporations engaged in the generation and manufacture and sale of electricity and gas the right to enter the streets and other thoroughfares of a city and use the same for the laying down of their pipes, etc., for the purpose of supplying gas and electricity to the inhabitants of such city for lighting or .illuminating purposes, we cannot see how it may or could consistently be held that the right so granted may in any way be hampered or impaired or qualified by any act of such city; and certainly such might well be held would be the effect of a ruling that the city may exact a charge from such corporations for supplying gas or electricity, or both, to the inhabitants of such city for use for illuminating purposes.

After a full consideration of the whole case, as it is submitted here, however, the justices of this court are of the opinion that the conclusion heretofore arrived at by this court, as expressed in the former opinion filed herein, is correct, and we, therefore, approve and adopt the opinion prepared by Justice Burnett, and which was handed down and filed herein. Said opinion is as follows:

"This appeal is from a judgment for $927.84 and interest upon an agreed statement of facts submitted to the superior