The morning call. [volume] (San Francisco [Calif.]) 1878-1895, 1893-05-13
THE WATER ORDER
Judge CARRIER Holds 1t to
Be Void.
WRIT OF MANDATE ISSUED.
The Mayors Approval Necessary or
His Veto nust Be Overruled
by Nine Votes.

mandate, commanding the Board of Super
vsors TO take action on the veto of Mayor
Ebert Withholding his approval from the
order fixing water rates. He held that
order No. 1922 was wholly imperative
and void without the approval OF the
Mayor or the vote of nine Supervisors.
Proceedings to appeal from judge Gar
ber's pro lorna decision 10 the supreme
Court were at once taken by the attorneys
for the Spring Valley Water Company.
Counsel for both parties first agreed to
certain findings of facts which were EN-
bodied in HE order signed by Judge Gar
Der as follows:
In addition to the facts admitted by the an
swer Of the defendants herein. the following
are all lhe facts in the abOve-entitl action:
FIrst-ln The city and county of San Fran
cisco there ale not and never have been any
public works owned or controlled by the NUM-
cipality for supplying the same with water, eX-
cept as follows: Golden Gate pix is aud has
been Tor many years last past supplied with all
the water used therein by public works in said
park, owned 10y the city and county, and under
The control OF The Board OF Park Commits
sioners, and having daily capacity OF over
10000 gallons OF water. He y lmshOuSe
OF said city aud cOuuly-Ihe occupants thereof
ana the grounds about The sam are being sup
Piled and have been supplied for years last past
with water by public works in the grounds OF
said AlmSh Ouse, owned and controlled by Sald
city and county. The new City Hall las works
provided OF SuIlcltut CauacltN 10 supply SAME
and surrounding grounds, but the water sup
piled by said works IS unWhOlesOme Tor drink
ing purposes. and said works are not and have
not been used for several Yeas Inc supply
of water for said new Clty Hall and also Tor all
other public buildings, includlng Tie public
schCOlhou>eS, hospitals, IRE engines and III OF
said CITY and county, aud also al! other parks,
and Tor flushing OF sewers and Tor the eNtln-
guiShment OF fires, Is now and has been for
years last past furnished and supplied by The
Spring Valley Wafer Works, 4 corporation en-
business wafer
said city and county as aforesaid and 10 the in
habiiants thereof. That It would be impossible
for said city and county al any time before
July l, 1884, to construct and Put in operation
or acquire public works having the capacity 10
supply water or supply OF water for the uses
now and for many years last past supplied 10
said CITY aud county by the Sprlng Valley
Water Works as above stated, and Tor these
reasons SAID city and county has and VIII have
nc means whatever OF obtaining such supply OF
water al any time before July !, 1894 except
from said Spring Valley Water Works ana
other private persons ana cOrpOI auous. Said
city aud county has now 1924 MIGRANTS
which are necessary for use by said city ana
county for the eAtinGuiShment or Ines aud
flushing OF sewers and many other large public
buildings in said city and county; but the CITY
and county OF san francisco has available Ia
ciliiies and resources entirely Independent Of
said Spring Valley Water OrkS and other pri-
yaie persons and computations when could be
utilized after July !, 1894. and which would
afford said city aud county an adequate supply
OF water for all public and municipal purposes.
Second-On the 2Oth day OF March, 1893, al
a stated meeting Of the Board OF Supervisors of
said city and county, order No 2622. described
and set forth IN paragraph N oil me amended
affidavit OF the applicant herein. WAS introduced
IN and presented 10 said Board OF SUPERVISORS,
ana was IhereupOn. by a vote Of nine Of the
memberS Of said board, passed TO PUNT and
ordered 10 be printed and published Tor lie
period OF i've DAYS by The said board in Tie daily
newspaI er printed and published In said city
and county. known as tile Daily Report, which
said newspaper was then aud during all Tue
time since has been the official newspaper of
said city aud county and dong the printing aud
advertising OF sa q city and coUuly under CON
tract Herewith; and such order y o. 2G22 was
thereafter and before the 27th day Of MAJ eli,
1893, printed and published tor five successive
days In such daily newspaper
Thtd-IheIe alter, at stated meeting OF
said Board Of Supervisors, neld on Marcn %,
1898, and after SAID order No. 2622 had been
published as aforesaid, the SAID order came
before said board, and was theTeuDOn by vote
of eight Of lie members of said board passed
by said board
March, 1898, said order y 20 2622 was pre-
senleG 10 the Mayor L. Il. Ebert, by
the clerk Of sald Board Of supervisors.
for his approval; that said l.. X. Ebert.
as such Mayor and president OF such board,
thereafter. on Apll Z, 1898, refused 10 ap-
prove said ordinance, and Ihereupon aud on
said last-named date, returned tie same 10
said board without his approval, and with his
objections thereto in writing which objections
are SET forth in paragraph NJ Of said amended
affidavit Of the applicant herein.
Fiith-That thereafter, on april 10, 1898, at
The iirSl stated meeting OF said Board Of Super
VsOrs subsequent 10 HE return OF said order
No. 1922 as above stated, the said Board Of
Supervisors refused 10 enter SAID objections of
said Mayor on The journals, and refused TO
have them published IN any manner; but there
upon passed ana adopted BY majority vote
of seven members Of SAID board resolution
refusing TO take any action whatever with re-
spect 10 said order No. 1922 and said objec-
lions which said resolution IS set forth In para
graph Nil o. said amended affidavit, and Is
numbered resolution No. $3.50 (third series.
StXth-That thereafter and on April IL.
1893, tile SAID objections and said veto OF said
Mayor, together with the said resolution No.
S556 uhird series, was, by and under the d.
Tecton Of the clerk Of said Board OF Super
VisOTs published In said Daily Report The daily
newspaper hereinbefore referred 10.
SeyenIh-That thereafter ana on April IT,
1893, and at the INST stated meeting of said
Board OF Supervisors after the publication last
aforesaid, lie SAID Board OF Supervisors re-
fused. by vote Of seven members thereof, 10
act upon sad ODlectlOus aud veto. or 10 enter
lain the same, and refused to recognize the
right Of said Mayor aud eX-OfticI0 president OF
said board 10 either approve OF disapproye of
said order No 1922. ana refused to further pro-
ceed with lie liking OF water rates for the year
commencing Juy l, 1898
Eighih-Ihat said Board OF Supervisors have
never passed any ordinance, resolution or order
nXlug OF attempting o fix the rates or compeB-
salon 10 be collected by The persons, cOmDa'
MES or corporations referred TO for the water
supplied to said city and county and the iuhabi-
Iants thereof for lie year commencing July
!, 1893 and ending June 80. 1894, other than
y
Niujh-Ihat said city and county of San
Francisco is ana during The year ending June
30, 1894, VIII lie Il large consumer OF wafer,
supplied and to be supplied to il for said muni-
cipal purposes by said Spring Valley Wafer
Works and other persons and private corpora
tions; and at the rate attempted 10 be fixed by
said order 2622, the quantity OF water which
will necessarily be so supplied TO said city and
county By SAID Spuug Valley Wafer Works and
other persons and private corporations, and
used by said city and county for said municipal
purposes during SAID last-named year. Will
amour, 10 over $50, 600. That the water so used
and 10 be used is paid for by said city and
county as follows: In the month OF June Of
each year a general ordinance is passed by the
Board OF Supervisors fixing The amount of
approp' iaiions for wa er, gas aud other public
uses IN Sald city ana county Tor tie coming
year. and these amounts go into the general
tax levy for said city and county; each apnTo-
prialion Is thereafter divided into twelve parts
for monthly use, and the amount expended for
water III each month, If exceeding $500, Is
allowed and to be paid, by a resolution passed
by such Beard OF SUPERVISORS. Both the ordi-
nance making sueh general ap reputation, and
The resolutions for said monthly payments
must, before taking effect, be approved by the
Mayor, and II disapproVed by him, must re-
celYe the vote OF at least nine members of said
bOaId before they became effective That no
sum OF public money whatever Is or can be
appropriated or expended for such water ex-
cept by ordinance and resolution, or order from
time 10 time and monthly, as such water Is used,
passeq as aforesaid.
Tenth-IhIt Julius Jacobs the applicant
herein, Is benefcially interested In the fixing OF
waller rates by said Board OF Supervisor, for
The said year, commencing July !, 1893, and
has plain, speedy or adequate remedy IN III Q
ordinary course of law by which lie can compel
said water rates TO be fixed.
And Is conclusion OF law from the foreg DING
facts the cOuIt finds:
First-1hat SAID order No. 1922 is not a valid
order fixing the rates or compensation 10 be
collected for the year commencing July i,
1893. by The persons, companies or corporation
for lie use CT wafer supplied by such persons,
companies or corporation TO tie city aud
county Of san francisco or tile Inhabitants
tleu Of, ana Is wholly imperative and void
Without the approval Of tie Mayor OF SAID city
Of San Francisco without the vote of nine
men'Uers OF such Board OF Supervisors therein
Oyei his veto.
cconG-That The applicant herein is entitled
10 Tic elief ~ aged for In his amended affidavit
on APPLICATION for mandate herein.
1hnd-And let judgment be entered herein in
favor oil lie applicant and against the SAID de-
fendant rs prayed for In said amended aiilGaVif
awarding reremptOTy writ OF mandate as
pray ed for herein.
Findings sigued May IL. 1893.
EUGENE r. CARRIER, Judge.
AUCTION-STORE ATTACHED.