The morning call., 1893-10-15
NO MAYORS VETO.
The Supervisors Fix the
Water Rates.
MAJORITY SUFFICIENT.
A Long Decision of the Supreme
Court in Which All the
Justices Concur.

decided at last, the Supreme Court hold
ing that the Mayors veto may not stand.
1t was at a late hour yesterday afternoon
that the decision was filed. Every Justice
on the Supreme bench took part in the
opinion and there was not one dissentient
voice.
The main points of the decision were
that, under the con solidation act, the
Board of Supervisors was legislative
body appointed to fix water rates. without
the approval or concurrence of the Mayor.
Secondly. 1t was held that the Mayor was
not mem ber or a part of the board. and
In fact if he were so the action pend
ing before the court would have had to be
directed against him equally as against
the other members. In fine. it was held
that Judge GaIber's decision sustaining
e he Mayors veto was erroneous, and the
Superior Court has been instructed to dis
miss the proceeding.
The substance of the long opinion is as
follows:
The order in controversy was raised on
March q last and was designated as order
No. 1922. fixing the rates 0t compensation
10 be charged for water during the fiscal
year commencing July l. 1898 The pass
aga of the order was IN pursuance OF sec
ton 10, article XIV, of the State constitu
tion. The order was presented by the
clerk of the Board OF Supervisors to Mayor
Ellert, who refused his approval On
April 7 Mayor Ellert returned the order to
the board with statement of his oblec-
tiops in writing. The board at its next
the objections of the Mayor on its
journal and by resolution declared that
the resolution fixing water rates. was not
subject to veto Dy the Mayor, or to the
further consideration by the board. IN that
the jurisdiction and power TO fix rates
were wholly fixed in the Board Of Super
Visors.
Thereupon Julius Jacobs, a citizen and
taxpayer, brought proceeding in man
damus in the Superior Court to compel the
Board of Supervisors 30 ''act upon the
objections of the Mayor" and 'to proceed
to fix said water rates" for the ensuing
year. After a pro forma hearing Judge
CARRIER entered judgment. declaring that
order No. 2622 was not valid order without
the approval of the Mayor and without the
vote of nine members of the BOARD over
the veto, and commanding the Super
vsors to mmediately act upon the objec-
tions of the Mayor and proceed to fix The
water rates.
Acting upon this statement of facts, the
Supreme Court declares I'VE are satisfied
that the judgment of the court below is
erroneous, I'D that the facts do not make
proper case for the exercise OF the extra
ordinary remedy of mandamus." The
clause of the con StitutlOn, section l, article
XIV, under which il was sought to justify
the mandamus proceedings is quoted as
follows:
The use of all the water now appropriated, or
that may hereafter be appropriated for sale,
rental or distribution is hereby declared TO be
public use, and subject to the equations and
control OF the State, IN the manner TO be pre-
scTibed 10 laws; provided, that the rate or
compensation TO be collected by any person,
company or corporation in This State fOf the
use OF water supplied TO any city and county. or
city or town, or the inhabitants thereof. shall
be fixed annually by the Board of Supervisors,
or city and county. or city and town council, or
other governing BODY OF such city and county,
or city or town, by ordinance or otherwise, in
the manner that other ordinances, or leglsla-
tive acts. or resolutions. are passed by such
body. and shall continue in force for one year
and no longer. Such ordinance or resolution
shall be passed in the month of February OF
each year and take effect on the first day OF
July thereafter. Any board OF body falling to
pass the necessary ordinance or resolution
fixing water rates where necessary within such
time shall be subject TO peremptory process 10
compel action al the suit of any party inter
ested, and shall be liable to such other
processes ana penalties as the Legislature IN y
prescribe. Any person, company or corpora
tion collecting water iates in any city and
county. or city or town. in this state. Other
wise than as so established, shall forfeit the
franchise and water works OF such person,
company or corporation to the city and county,
or the city or Town, where the same are col
lected for The public use.
The Supreme Courts opinion calls atten-
ton TO the fact that the city and county of
San Francisco is consolidated govern
ment, with the consolidation act as a char
ter. Under that act the Board OF Super
Visors is made the legislative department
of the municipal government, although IL
is provided therein that ordinances of eer-
tain enumerated subjects shall not be
effected, unless approved by the Mayor,
whose Office was created by the act, or un-
less after his veto nine members should
vote therefor. Under the consolidation
act, however. there are things which the
board could 90 without the concurrence of
the Mayor. At the same time there are
many things the Mayor can do independent
of the board This being the case it was
claimed by Jacobs that section 1 of the
consolidation act should be con strued to
mean that the Mayor has legal right to
veto water rate, or that under the facts
above stated writ of mandamus can com
pei the Board of Supervisors 20 refiX water
rates continuously, unless il either yield
TO the views of the Mayor or be BILE by
three fourths vote to rescind the veto. Il
is stated by the Supreme Court that the
statute should not be so interpreted as to
decree acts that are either absurd or i'm
possible. The opinion adds:
The Judgment in the case at bar first COM
mands appellant 10 "act upon the objections
OF the MayOr," which, we presume. meauS 10
vote formally on the question whether The veto
shall be sustained and then, assuming that
there may be nine votes In favor of the order,
commands them forthwith TO proceed TO fix
the water rates" If they should vote on the
veto, and majority of tile Supervisors, but not
nine, should vote for be order, OF course under
the order they would be compelled 10 proceed
and pass another order; and II that should be
vetoed with the same result, then another and
another, and so on indefinitely, so that if The
board should moi yield it's views to those Of the
Mayor, there could be no legal fixing OF water
rates at all
But the section of the constitution provides
that the water rats shall be "nxed annually"
commencing on July /, and that any board or
body falling TO do so shall be subject TO
process to compel action; aud that any person
collecting water rates otherwise than as so
fixed annually shall suffer certain penalties and
forTeitures. II such construction does not
involve a palpable abs1rdity or an attempt to
accomplish an absolute impossibility. il GER
tainly does lead naturally and probably TO
what is substantially impractIcabe, and
to failure 10 coEsummate the purpose OF
the constitutional provision under which the
water rates are levied
Fixing water rates is entirely different
thing from passing or refusing TO pass an order
or ordinance which merely involves ordinary
considerations of public policy, and Is not an
absolute nee ssty. The constitution requires
that the rates shall be fixed annually in FeDru-
ary and If they be not fixed there shall be no
of tn the inha bifants the city al