The herald., 1897-09-21

the Circuit Court of the United States
between the city and the water com.
pany touching the water rates fixed by
the City CounciD the same counsel with
equal ability maintained that the con-
tract was in other respects valid, and the
court again sustained their contention
and declared the contract in those re-
spects. at least, to be valid.
1t will be observed that neither OF
the two aforementioned opinions are
from courts Of last resort.
We have given to.the investigation OF
this question considerable time and
thought, and have arrived at certain
conclusions in our own minds concern
ing 1t. which We have from time to time
discussed with you, and in which we un
derstand you In general way to con-
cur; but, in our judgment, a full and
definite statement Of your opinion upon
| the many different questions of law
necessarily involved. would be, in the
| present condition of affairs between the
city and the water company, in nowise
| expedient or useful.
In view of the long acquiescence on the
part Of the city in the validity of the
contract, its tacit recognition by our
own Supreme Court and the varying
views Of eminent judges of the lower
courts and of learned counsel, it is too
plain, 1t seems to u.s. to need further
remark that 1t would be inexpedient
and unsafe for the city to assume the
invalidity of the contract upon any opin-
ion which might be given by any coun-
sci, especially, where the expenditure of
money, the assumption Of obligations,
or the invasion of property rights is
involved.
1t would further be inexpedient to as
sumo any positive position in regard to
certain phases of the rights and obliga-
tions involved in the contract, in view of
the uncertainty of the present position
Of the water company itself, as indi.
Gated by their various suits and semi
official announcements. In our judg-
ment, the city should be free to assume
such position as the developments of the
matter might indicate to be for it's best
interests. The water company, being a
private corporation, does not premature
ly publish the opinions of it's counse Ell,
and 1t Is easy to see how the city might
be hampered by adopting contrary
course.
There are, however, certain fixed
facts involved in the policy Of the city
in relation to it's water supply, which it
may be we'll to bear in. mind.
In the first place, it appears to be
settled, as definitely and positively as
anything Of the kind can be considered
until 1t is actually accomplished, that
the city will own and operate its own
water system, utilizing therefor to the
best possible advantage, the waters of
the Los Angeles river.
Secondly. that the proposed head
works, to be erected on the land involved
in the condemnation suit of the city
against Pomeroy & Hooker, are an ss
sential part of the proposed system,
whether the city constructs it's own in
dependent system of supply to its In
habitants, or takes over the pipe lines,
plant, etc., constructed and used by the
City Water Company.
Third, that the construction Of the
head works is altogether Independent
of either the construction of Il
completely new system within the
city limits, or Of the taking over of the
City Water Company's plant; and, if
the condemnation suit now pending is
decided favorably to the city, an cleo
tion can be held, bonds issued, and the
work OF construction of the head works
commenced, altogether independently
Of any other element or phase Of the
question.
Fourth-The contention between the
city and the City Water Company con-
sists practically Of two separate and in
dependent questions; (a) the owner
ship OF the waters of the so-called Crys-
tai Springs, and (b) the value to the city
of the pipe line system and plant in use
by the company.
The first queston--that is, the owner
ship Of the waters of the so-called Crys-
tai Spring-is now before the courts.
Upon this there should be no possible
room for doubt as to the course to be
pursued by the city; no compromise or
settlement is possible. Either the city
owns the water as part of the waters
of the river, or it does not; and that is
question which can be settled only by
the courts. 1t is to be observed, how
ever, that the construction Of the new
head works and the diversion of the wa
ters of the river at that point render the
final decision Of the question: as to the
ownership of the waters of Crystal
Springs Of less ultimate Importance to
the city-that is, il the city were to de-
pend upon the supply from the so-called
Crystal Springs; and while we under
stand it to be your policy, in which we
fully concur, to push this suit with all
convenient speed, it's determination in
nowise delays or affects the policy of the
city to be pursued upon other points.
,As to the second contention, namely
the value to the city of the plant and
other property now held and used by the
water company which would be avail
able to the city in the construction and
operation of its system. there does not
seem to be so radical and wide differ
ence between the estimates of the experts
for the City Water Company and the
City Engineer as to render compromises
or settlement hopeless. The city has
made a proposition to the company to
arbitrate this question at once. The
company's officers, under the advice of
their counsel, as We understand it, have
practically answered that they have no
right or power 10 make this submission
at present, for the reason that the au-
thority and direction already given them
by the stockholders contemplate the sale
Of the whole Of their property, including
the disputed waters, at fixed price.
IT iS eSpeCially in view of this last