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. R. Co. v. Savannah, 77 Ga. 731; State v. C. & C. R. Co., 50 La. Ann. 1189 [24 So. 265]; Newcomb v. Norfolk W. St. R. Co., 179 Mass. 449 [61 N. E. 42]; Chicago v. Chicago U. T. Co., 199 Ill. 259 [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. C. & C. R. Co., 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; St. Paul v. Haughbro, 93 Minn. 59 [66 L. R. A. 441]; St. Paul v. St. Paul City Ry. Co., 130 N. W. 1108; Passenger R. R. Co.. v. Birmingham, 51 Pa. 41; Mayor of the City of Baltimore v. Baltimore Trust & Guarantee Co., 166 U. S. 673.)

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:

"Every person or corporation operating or maintaining street railway tracks located in and along the different streets within the city, shall, except as otherwise expressly provided in the respective ordinances under which tracks have heretofore been or may hereafter be authorized to be laid, when ordered so to do by the commissioner of public works, keep moistened and well sprinkled with water in a manner satisfactory to the commissioner of public works the several streets upon and along which they, or either of them, may operate or maintain his or its respective tracks.

"Every person violating any of the provisions of this section shall be fined not less than twenty-five dollars nor more than one hundred dollars for each offense, and a separate and distinct offense shall be deemed to have been committed each and every day on which said person or corporation shall neglect, fail, or refuse to comply with any of the provisions of this section."

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

[1] 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 service. 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 sprinkling the track and one or two feet on the outside and 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. BURNETT, J.

We concur:
HART, J.

CHIPMAN, P. J.

Civil No. 1714. Second Appellate District. September 28, 1915. MOJAVE AND BAKERSFIELD RAILROAD COMPANY, Plaintiff and Respondent, v. JOHN P. CUDDEBACK, Defendant and Appellant.

[1] COSTS-ABANDONED ACTION OF EMINENT DOMAIN-ATTORNEY'S FEES LIMITED OBJECTIONS EVIDENCE OF REASONABLENESS OF FEEUNAUTHORIZED REQUIREMENT.-Where the plaintiff in an action of eminent domain, abandoned by it after issue joined and before trial, files its notice of motion to have the costs awarded to the defendant taxed, by striking from the cost bill the item of reasonable attorney fees, and specifies as the sole grounds for the motion that the item is "unlawful and not properly taxable as costs", it is error to require the defendant upon the hearing of the motion to produce further evidence in support of the fact establ'shed by his affidavit that the attorney's fee claimed is proper and reasonable in amount for the services performed.

[2] ID. TAXATION OF COSTS-LIMITATION OF OBJECTIONS-SPECIFICATION OF GROUNDS.-A party subject to the payment of costs may limit his objections to such grounds only as he may specify in his motion as the reasons for asking the intervention of the court in taxing the costs, and in such a case only the grounds recited can be considered in support of the motion.

PROCEEDING-IMPROPER

[3] ID. CLERK'S FEES IN MANDAMUS ITEM OF COSTS.-The defendant in such an action is not entitled to have taxed as costs the fee paid by him to the clerk of the district court of appeal upon the filing of an application for a writ of mandate to compel the trial judge to try the case, as such proceeding was not an action or proceeding against the plaintiff, or for which costs could be claimed or taxed against it.

Appeal from the Superior Court of Kern County-Howard A. Peairs, Judge.

For Appellant-J. R. Scott, T. M. McNamara.

For Respondent-E. J. Foulds, F. E. Borton, Henry T. Gage, W. I. Foley, W. I. Gilbert.

This is an appeal prosecuted by defendant from an order of court taxing costs.

The action was one of eminent domain instituted by plaintiff against defendant and others to condemn a strip of land for railroad purposes one hundred feet in width and extending a distance of sixteen miles through a tract 18,000 acres in extent. After issue joined and before trial, plaintiff served and filed a notice stating that it abandoned the proceeding pursuant to the provisions of section 1255a, Code of Civil Procedure. Thereupon the court, upon motion of the defendant, in accordance with the provisions of said section, caused to be entered a judgment of dismissal of the action, wherein it was adjudged that defendant have and recover "his proper costs and disbursements incurred herein, including necessary expenses incurred by him in preparing for trial and reasonable attorney fees, amounting to the sum of ...dollars". Thereafter, as provided in section 1033, Code of Civil Procedure, defendant (appellant here) served and filed a memorandum of costs, expenses and disbursements wherein, among other items, was inserted two items involved in this appeal. These items were as follows: Under the head of "Attorney's fees and expenses in preparing for trial", there was inserted: "Attorney's fees, $2,250.00." The other item was: "Fee Clerk Dist. Court Appeal in mandamus case brought March 19, 1914, before filing notice abandonment to compel judge to try this case, $7.50." This memorandum of costs was headed as follows: "Memorandum of costs and disbursements of defendant, John P. Cuddeback, including reasonable attorney's fees and necessary expenses incurred in preparing for trial;" duly verified by one of defendant's attorneys, wherein it was averred "that the items of costs and disbursements in the above memorandum contained, including attorney's fees and expenses incurred in preparing for trial of said action, are correct and said attorney's fees are reasonable, to the best of affiant's knowledge and belief". Thereupon plaintiff, pursuant to notice duly given, presented its motion that "the court retax defendant's costs by striking from his cost bill served and filed herein, the following items, for the reason that said items are unlawful and not properly taxable as costs in said cause". Among other items of cost so attacked as being unlawful and not properly taxable as costs, and which the court was asked to strike from the cost bill, was the item of $2250, averred in defendant's affidavit as being necessary and reasonable, and the item of $7.50, paid the clerk of the district court of appeal upon the filing of the application for a writ of mandamus directed to the superior court wherein said cause was pending.

Upon the hearing of the motion defendant (appellant here) objected to the court considering any ground or reason in support of the motion other than the grounds specified therein and assigned as reasons for striking the items from the memorandum, namely: that the items were unlawful and not properly taxable as costs. This objection was overruled and, without any counteraffidavit or evidence on the part of plaintiff controverting the prima facie showing made by the verified memorandum of defendant, he was required by the court to produce further evidence in

support of the fact established by his affidavit that the attorney's fee claimed was proper and reasonable in amount for the services performed.

[1] Our opinion is that in so ruling the court erred. Section 1255a, Code of Civil Procedure, provides that upon the abandonment of said proceeding a judgment shall be entered dismissing the same "and awarding the defendant his costs and disbursements, which shall include all necessary expenses incurred in preparing for trial and reasonable attorney fees. These costs and disbursements, including expenses and attorney fees, may be claimed in and by a cost bill, to be prepared, served, filed and taxed as in civil actions". Under section 1033, Code of Civil Procedure, a party dissatified with the costs claimed may, within five days after notice of filing of the bill of costs, file a motion to have the same taxed by the court. If, however, the notice of motion be not given within the time specified therefor, the clerk must, upon the expiration thereof, make the entry in accordance with the memorandum of costs filed. Otherwise, where the motion is made the entry by the clerk is in accordance with the order therein made by the court in taxing the costs. Thus, if a party to an action against whom cost is awarded neglects within the time specified in section 1033 to apply to the court to have the same taxed, he is deemed to have assented to the correctness and lawfulness of the items as claimed in the verified memorandum of costs as filed, the total of which upon being entered in the judgment by the clerk in accordance with his duty, is of the same force and effect as any other part of the judgment. [2] This being true, and since the party subject to the payment of cost may waive any and all objections to the claim for cost, it follows, we think, that he may limit his objections to such grounds only as he may specify in his motion as the reasons for asking the intervention of the court in taxing the cost.

An application to have the court tax costs is made by motion. (Carpy v. Dowdell, 129 Cal. 244; Senior v. Anderson, 130 Cal. 290.) Section 1010, Code of Civil Procedure, provides that "the notice of a motion must state the grounds upon which it will be made;" (Carpy v. Dowdell, supra) and if this be true, it follows that only such grounds as may be specified can be considered by the court in support of the motion. (State v. Sherman, 42 Mo. 215; Corwith v. State Bank of Illinois, 8 Wis. 182; Silva v. Holland, 74 Cal. 530; Poehlmann v. Kennedy, 48 Cal. 201.) The motion as made pursuant to the notice given was to have the two items mentioned stricken from the memorandum upon the ground that they were "unlawful and not properly taxable as costs". Plaintiff thus restricted its objections to the ground that under the law defendant was not entitled to any attorney fee whatsoever to be taxed as costs. The reasons thus assigned for its dissatisfaction were not such as to imply or suggest any objection to the item based upon the ground that the same was excessive or unreasonable. On the contrary, if defendant was entitled to any sum as attorney's fee, it was impliedly conceded that he was entitled to the amount claimed. As to this item of cost the only inquiry which the court under the motion