The San Francisco call., 1897-07-16
City Attorney Harry T, Cres-
we'll Warned Them of
Their Danger.
AONITORY WORDS D.SREGARDED.
Failed to Fix Water Rates in Feb
ruary, as Required by the Con-
stitution and Laws.

neer jour naiist, yesterday instituted an
action a. law against the Board OF Super
visors of this City and County, asking that
they be removed from Office for failing to
fix the water rates in this City in February
according 10 law.
All the Supervisors are mentioned in
the suit. namely, Thomas II. Haskins,
Lawrence Devany, NJ. P. Delany ]. II.
Sheehan, Washington Dodge, John Lack
mann, I. a. Rottanzi, Thomas Morton.
James E. Britt, E. j. Smith, c. A. Clin-
ton and Thomas W. R yers. Some OF
these gentlemen are on record as having
tried to perform their duty. but it is the
old story Of poor Tray and bad company,
so they all have to be included in the
complaint and If one goes all will go.
Mr.. Fitch alleges that he is resident,
taxpayer. householder and freeholder in
this CITY, and interested in The rates al
lowed to be charged by the Spring Valley
Water Works.
After setting forth the legal status OF
the water company Mr.. Fitch draws atten-
tion to the quirements Of the constitu-
ton OF the Stale of California, section l,
article XIV. and State statute approved
March Z, 1881, whereby it became and was
the duty of the Supervisors 10 fix IN the
month of February, 1877, the rates that
might legally be charged and collected By
the water company during the year be-
ginning July l, 1897.
The provisions of the constitution AND
the statute we're known TO the Supervisors,
Nh Fitch says, and they were familiar
with the penalties therein prescribed, yet
they knowingly failed and refused 10 per-
form their official duty in mpliance with
the law.
BY reason of this failure it is alleged
that each mem Der of the board was guilty
OF malfeasance in office and should,
on conviction, be removed therefrom,
as provided in section 8 of the
act of March 7, 1881. According
ly the plaintiff demands that the
Supervisors be declared guilty of mall
teasance; that they be declared guilty. OF
unlawfully holding office, and that they
be forthwith removed.
The complaint is verified in the usual
way. w. 7. Baggett and George w.
Schell are the attorneys for the plaintiff.
While the question OF the water rates
was under discussion G ty Attorney Cres.
well was asked by the Supervisors ior an
opinion in regard TO their rights in the
premises. In reply Mr.. Creswell sent
letter on the Goth of February, in which
he said:
The board must Fl K the water rates annually
in the month of February, as reQu red By the
constitution OF the Stale. See section l. ar
ucle XIV, constitution of California; Statutes
OF Caiifornis, page 54 section /; Spring Val
ley Water W orks vs.. san Francisco, 81 Cali
fornia Reports, %; Jacobs VS.. Board OF Super
yisofs, 100 California Reports, 12S.
The constitution permits the Legislature to
prescribe penalty for the failure of the
board 10 fix the ra tes within such time" In
n he nf n ts1vit n in
such time" The Legislature has in aid of this
section oithe constitution prescribed that any
board which shall fail OF refuse 10 fix the
water rates annually within sueh time shall
be deemed guilty of malteasanee in office,
and upon conviction in any Court of cJmpe-
tent jurisdiction shall b. removed from office.
See statutes of 1881, page "a, section 8.
Consequently, if the Board of Sup rvisors of
the City and County of San Francisco should
fail or refuse to nix the water ra les III the
N on III Of February the members are not only
liable TO removal from office, but NAV at the
suit OF any party interested be compelled by
peremptory process 10 do so. 1t has been held
that mandamus is proper remedy TO compel
the performance of this official duty. Is. V.
w W. VS.. S. F.. 81 Cal. 2S)
Mandamus can only be issued to compel a
party 10 act when it was his duty to act with
1t. 1t conferS upon b i'm no new authority.
People VS.. Gilmer, Gilman, 242D
1t appears from tie foregoing that the
advice of the City's legal adviser was dis
determined 10 take the chances on a
friendly decision of the courts. II the
provisions of the constitution are upheld
in this instance Governor Budd may be
called on to fill about dozen Vacancies in
the Board of Supervisors OF this City.
Suca action on his part would be likely TO
cause considerable commotion among the
politicians Of the new City Hall.
Mr.. Creswell added in his letter that
though it was the strict duty of the Super
Visors TO fix the wafer rates in February,
yet If they failed to do SO in that time tney
were legally authorized 10 fix the rates at
subsequent time; out this would not re-
heve tbs nj from the danger of being re-
moved from office if action in that regard
should be taken against them.
1t seems that M. Fitch's complaint is
oased substantially on the opinion OF Mr..
Cresweil, and as that gentleman made
an exhaustive examination of the legal
questions involved 1t looks as II the crowns
OF our local Lawmakers are decidedly
shaky. The suit will be pressed with
vigor and If the Supervisors are not ousted
as soon as the courts can reach them it
WIZ not be the fault OF the plaintiff and
his attorneys.
supervisor Smith was asked for his
opinion of the suit and said it was not his
fault that the rates were NOT 6Yed in
feofuary. de was ready and anxious to
vote during the time allowed by law in
order TO avoid any complications, but the
board was compelled 10 wait for the Water
COMMITTEES. He was not member OF the
Water COMMITTEE and did not think he
ought 10 be held responsible for the delay.
Supervisor Britt and Supervisor Lack
mann were spoken 10 last evening. They
said they were not prepared to discuss the
matter at length. They believed the suit
had been brought seriously and probably
would. be carried TO the limit. rhey did
not belive the Supreme Court would con.
strue their tardiness as an infraction of
the provisions of The constitution or the
law. They could not fix the rate cauit-
ably without securing he data necessary.
and they had . en- dlligent in the matter
OF securing. The evidence was clear as to
that, they thought, and. being so-it be-
ing by no neglect of duty or fault of their
nxu===l hey. would nnf La hali