Los Angeles herald., 1892-01-03
THE WATER SUIT.
CITY ATTORNEY M'FARLAND Ex.
PLAINS.
He Claims That the Suit Was Brought in
Strict Accord With the Law = The
Points He Claims.

City Attorney Mcfarland has pre-
pared statement which will be sub
mitted to the council on Monday, re-
garding the Citizens Water company
suit. The city attorney holds that he
framed the suit in strict accord with the
law, and this governed his line of con-
duct. The letter is follows;
Judge Shaw has decided the case OF
the city council vs.. the Citizens Water
company, which was pending before
him upon the demurrer to the COM
plant, sustaining the demurrer of the
water company UPON the grounds, viz
First-ThaS the complaint does not
state that the company charged ex-
cessive water rates wilfully and inten-
tionally, and with the knowledge that
they were excessive.
Second-That such an action cannot
be brought in the name OF the city
council, but should be in the name of
the CITY.
Third-That the provision of our con
stitution providing for the forfeiture of
the works and franchise of the company
impairs the rights of contract, and is in
violation of the constitution OF the
United States in that respect and conse-
quently void.
Section / of article XIV of our con-
stitution, after providing that the city
council ehall pass an ordinance each
year fixing the water rates to be charged
the coming year, provides ''any person,
company or corporation collecting water
rates in any city and county, city or
town in this state otherwise than
as 30 established shall for
felt the franchise and water works of
such person, company or corporation to
the city and county, or city, or town
where the same is collected, for the pub
lie use." 1t will be seen from this Sec
tion that nothing is said as to the rates
being excessive, or that the collection
must have been wilfully, knowingly or
otherwise, but that the fact that the
company has charged rates other than
those fixed by the ordinance of itself
works a forfeiture. The complaint
states that the water rates were estab-
lished by an ordinance, passed and
published, and this ordinance then be-
came a law, which every one is bound
to know. The law having implied
knowledge Of this ordinance it is unnec
essary for us to plead it. Besides the
use of such words as knowingly, !" sim
tentionally," Willingly" ''wilfully"
and the like cannot change or qualify
the facts. Our supreme court, in Sc Cal.
page 6S7, says: ''such words as duly"
"wrongfully," "wilfully," "willingly"
and ''unlawfully" SO frequently fonnd in
pleadings might better be omitted, they
tender no issue. Such epithets in plead
ing are meaningless and are generally
inserted for no valuable purpose, but only
to round off or swell out sentence.
Unless the matters averred show the
acts complained of to be unlawful, etc.
such words are mere superfuous ver-
biage." For these reasons l did not
allege that the collection of the water
rates was done knowingly, wilfulIy and
Intentionally.
The present constitution was adopted
in 1879, and on March 7, 1881, the legis-
lature passed an act to carry out the
provisions of the constitution relating to
water rights, which act ia found under
the political code under section 40I6.
and also in the civil code under section
54S. After providing for the fixing of
water rates each year by the council.
furnishing OF statements by the water
company, etc., section Z provides that
any company charging or attempting to
collect from any person using water any
sum in excess of the rate fixed
by the city council shall, upon
the complaint of the board of SUPER
visors. town council, board of aldermen
or other legislative body thereof, or OF
any water-rate payer, forfeit the fran
chise and water works of said company
to the city. brought this suit in the
name of the city council for the reason
that this law directs that it shall be SO
done. Neither of the first two obiec.
tions made by Judge Shaw were raised
by counsel for the water company, and
were consequently not argued to the
court.
| AS to the third and main proposition.
that the provisions of our constitution
are in conflict with the constitution of
the United States, am inclined to
agree with Judge Shaw. Should the
council, however, desire to have this
question determined by our supreme
court, | advise that the present action
be appealed, as am satisfied that 30 far
as form is concerned it is correct.
vOx POPULI yOx DEF.