The record-union., 1897-09-16
Judge Wallace Decides Against the
San Francisco Board,
Decision in the Case Instituted BY G. K.
Fitch.
InterminabIe Litigation Likely to
Result From the Removal OF
the Board-The Tax Levy the
Question Which May Cause
Many Actions at Law.

SAN FRANCISCO, Sept. 15.-Judge
Wallace this morning rendered ms de-
cision in the suit instituted by u. h.
Fitch to oust the members Of the Board
of Supervisors from Office for the plain
tiff as against all the defendants prayed
for.
Fitch brought his action to GUST the
Supervisors from office for not hXlnS
the water rates in February as the law
requires. The Supervisors did not fix
the rates until July, asserting that they
could not do so before, as the Spring
Valley Water Company, in spite of re
peated requests from the Supervisors
neglected TO enable il to intelligently
and fairly fix the rates.
Supervisors Lackman and Rotanzi
fled separate answers in which they
pleaded that they had voted against
postponement, and that the rates would
have been fixed in February had their
motions in the board not been de-
feated by the majority.
Judge Wallace, however, in a long de-
cfsion, declares all the Supervisors out
OF Office. Lackman and Rotanzi includ-
ed.
1t is stated that Mayor Phelan, antic-
ipating the decision, had already Sc
lected the men to appoint as members
of new board, but he has not yet an
nounced their names.
Governor Budd also claims the ap-
pointing power and will probably ap-
point another Board Of Supervisors.
The board just removed will not so
out Of Office without a struggle, and viii
meet to-day and go ahead with the tax
rates They will endeavor to ignore
Judge Wallace's decision, and will en-
join the boards appointed by Governor
Budd and Mayor Phelan from taking
office.
The municipal government of San
Francisco is, therefore, liable to be ex-
tremely complicated for the next few
months.
The Spring Valley Water Company, a
private corporation, furnishes San
Francisco with its water supply, and
each year the Board Of Supervisors
fixes the rates to be charged.
Judge Wallace finds against the en-
tire Board of Supervisors, on the
ground that the law regards the act
OF one in fixing water rates, as the act
could not have exonerated Supervisors
Lackman and Rotanzi, who tried to
fix rates in February, without doing
violence to the principle laid down in
the law, that a Board of Supervisors
engaged in fixing water rates, is an in
dividual power, and not an aggregation
of individuals, each responsible per-
sonally for what he does.
He says, however, that the proceed
ing is not criminal in it's nature, but
is a civil action. This eliminates from
1t the results which would have follow
ed had the provisions of Section 772 of
the Penal Code been declared to be the
rule of procedure. If the action is civil,
an appeal lies to the Supreme Court.
The review of the law and facts, may,
therefore, be obtained.
Judge Wallace concluded his decision
in the following words: Nothing now
remains to be considered except the
excuse-the excuse of the board for not
fixing the rates in February last-for,
as observed already, excuses of indi-
vidual members are not contemplated
by the law, and upon the supposed ex-
cuse of the board little need be said
little more than has already been said
in the findings. The board had no ex-
cuse. It had in February all the infor-
nation it needed to enable it to act
upon the subject of water rates in that
month, as required by the law. That
it did not have it is but a pretense: it
was legally the master of the situation,
but it permitted itself to be dominated
by the corporation. It pretended to
beg for and be refused the information
it had the right and power to compel
If it needed it at the hands of the cor
poration, who, if it refused when so
lawfully commanded by the board,
would have but imperilled it's own pc
cuniary interest and would never have
been heard to complain that the action
of the board in fixing the rates was IN
just, when it appeared that the Unjust
ice. If any, was brought about by its
own misconduct in refusing to obey the
mandate of the board. The pretended
excuse here offered in fact assumes the
intellectual ineompetency of the board
to fulfill its duties. If, however, it has
happened that the defendant board is
incompetent to this remarkable degree
it is certainly not to be regretted, at
least, if attention is to be paid to the
public interest, which must always be
regarded as paramount in such mat
ter, it is not to be regretted that such
q board must now give way TO an