The morning call., 1893-10-15

that no court will apply mandamus when
the thing to be done is judicial in nature.
This principle is said TO have been settled
by the court many years ago. Ii applies
with especial force to cases where man.
damus is sought against all public officers
or public bodies vested with dlscretional
and judicial power.
While mandamus will lie to set such
bodies In motion and TO compel action on
matters in controversy IL will not in any
manner interfere with the exercise OF
such discretion AMI control or dictate the
decision or judgment which shall be
reached.
'And that the Supervisors act judicially
when fixing water rates, that in perform
ing such duty they should hear the parties
interested, fairly weigh the evidence pre-
sented and decide property rights accord
ing to their honest convictions and best
judgment, is not only clear from the very
nature of the thing 10 be done, but was
expressly declared by the Supreme Court
of the United States in Spring Valley VS..
Schollter Q1O u. S. 354). The same dec
iaration was made BY this court in Water
Works VS.. San Francisco (S2 Cal. 1885,"
From this reasoning the court concludes
that the constitution must be construed to
mean that water rates are 10 be liked only
by the Board of Supervisors. The only
exception made is as to municipalities oil
which Boards of Supervisors form no part
At the time the section was adopted there
was no city and county or city and town
other than the city and county of San
Francisco. of which the Board of Super
vsOrs was the legislative department. The
opinion proceeds:
And it may well be presumed that the con-
stituiional conyentlsn at that time had particu-
larry In view The city and county OF san Fran
cisco, when they expressly granted to the
Board of Supervisors the power 10 fix water
rates. AS there were municipalities having no
Board of Supervisors Ii was provided that the
governing body should fix The rates. Ii would
be difficult 10 reach any other construction
without entirely eliminating tue words. Board
OF Supervisors.
IL is unnecessary to discuss the question
whether If the consolidation act alone is to be
looked at order 1922 would require approval
OF the Mayor 1t would be diff cult to see that
such approval would be embraced within any
OF the enumerated cases In which the Mayor Is
given veto power Such power Is not TO be
favored by any strained construction, but Is TO
be recognized only where clearly granted. AT
the same time the power in question comes not
from the consolidation act, but from the consIi-
tuition OF the State.
A special grant of power had been made to
The Supervisors by the constitution without
any mention of the Mayor Ii the Mayor was a
part of the board, mandamus would also have
10 be directed against him. which is absurd.
The Supreme Court holds that the power
of the Board of Supervisors is to be exer-
clSeQ Dy majority OF the mem DerS. 1nlS
is held TO be a general rule. and also ex-
presSly declared in section u of the Civil
Code, which provides that words giving
a joint auth ority to three or more public
officers or other persons are construed as
giving such authority TO a majority of
them unless it be otherwise expressed in
the act giving authority" The decision
concludes:
Our conclusion is that the power TO fix water
rates in the city and county OF San Francisco is
granted by the constitution OF the State sol ely
10 the Board of supervisors of said city nd
county; that the matter OF fixing such rates re-
qufre> the exercise of discretion and indgme nj !;
that The board having exercised its discretion
by passing said order No. 1922 cannot be COM
PEELED by mandamuS 10 change its judg
ment or TO take further action thereon;
that said order is valid Notwithstanding the at
tempted veto of the Mayor, and legally nXes the
rates TO be charged for water of said city aud
county during The year commencing July 1,
1898, and thar the Judgment of the Superior
Court commanding said appellant 10 take
further action in the premises Is erroneous.
The judgment appealed from is reversed,
with directions TO the Superior Court TO dismiss
the proceeding.
The decision was rendered by Justice
Mcfarland. Justice Garoutte eoncurring.
Concurring opinions were filed by JUS
tice Harrison. in which Justice de Haven
and Fitzgerald concCrred. by Justice Pater-
son and by Chief Justice Beatty.