Los Angeles herald., 1890-08-28
A KNOCK OUT
For the Los Angeles City
Water Company.
Judge Mckinley Sustains Stern
ct ais Demurrer.
The Company Has No Exclusive Right
To Furnish Water.
The Lease of the City Under Which 1t
Claims It's RightEDeclared Void
Defendants May Construct
System.

Judge Mckinley yesterday sustained
the demurrers in the suits OF the Los
Angeles City Water company against
Stern ct al; the same company against
the East Side Spring Water company:
Ryan against Stern and others; and
Ryan against the East Side Spring Water
company. This decision virtually decides
that under the franchise formerly
granted to the Los Angeles City Water
company by the municipality it has not
the exclusive right of furnishing all the
water needed by consumers in this city.
The opinion of Judge Mckinley is
very lengthy one and covers the whole
ground. 1t is impossible to reproduce it
in its entirety, but the principal points
are given. 1t says:
The City Water company contended
that their franchise gave them the ex-
elusive right to furnish water to the
inhabitants of the city. The new con-
stitution contains a clause, the purpose
of which is to prevent monopoly from
getting control OF the water OF a city.
The scope of that provision is to allow
any individual as we'll as any company
to lay pipes and supply water under the
control of the superintendent Of streets.
The decision Of Judge Mckinley
quotes at length from the constitution,
and from the debates on this clause in the
organic law at the time of its passage.
The debate was conducted mainly by
the late Judge Volney E. Howard OF Los
Angeles. The court also quotes volu
minously from decisions of other courts
- al Nbn Iofn Il &c,
claim that the franchise to the City
use of water from the Los Angeles river
and does not refer to water obtained
from any other source.
A large number of cases are cited,
showing that the claim of the defend
ants that the franchise referred only to
the water Of the Los Angeles river, and
that the fact that the supply of water
granted, (ten inches), was such as to
show that it was not expected that it
would be sufficient to furnish water to
all the city. The contract must be con-
strued as an exclusive one. Unless the
power of the city of Los Angeles to make
this contract was conferred by the legis-
lature, or ratified by a subsequent act
of the legislature, the contract would be
invalid. No statute has been found
which conferred on the city of Los
Angeles power to grant an exclusive
franchise and to bind the power of the
state to its perpetuation for thirty years.
That such power cannot be granted
without an express grant from the legis-
lature, is clearly established.
The different acts passed by the legis-
lature which are claimed to have been
confirmatory of the contract are not
held so to be. The claim that section
54S of the civil code confirmed the con-
tract is also not upheld.
The decision closes as follows: "It fol-
lows as conclusion that the portion of
the lease from the city, under which the
plaintiff claims and which purports to
grant it an exclusive franchise, is void,
because the city had no power to grant
such exclusive privilege; and the at
tempted ratification of such grant by
the legislature was unconstitutional, and
therefore void; and the plaintiff never
has, and does not now, possess an eXclu-
sive franchise for the supplying of the
city of Los Angeles with water; and the
defendants have the right under section
10, article ii. of the constitution to con-
struct system of water works and lay
their pipes in the city of Los Angeles;
and the demurrer of the defendant
should be sustained and it is so ordered"
Mr.. E. L. Stern, the president of the
new company, was much gratifed at the
result of the litigation. He stated that
his company will at once vigorously
prosecute it's work. The engineers
plans for the plant and development
will involve an expenditure of two and
half millions Of dollars in this city and
vicinity, something which will do con-
siderable good besides supplying the
people with pure mountain water