The herald., 1898-06-05


From the syllabus Of the case last cited
quote as follows: "As a general rule, one
who rests his claim to an easement on a
verbal contract alone, unexecuted and I'M
accompanied by any other facts, has no
rights thereto which he can enforce: yet,
where parole license to take half the wa
tiers of stream has been executed and in
vestments have been made upon the faith
Of it. the license is irrevocable." (Smith
VS.. Green, 100 Cal. 22S)
". Defendants further contend that
complainants have SO acquiesced in the
action of the council in the fixing of water
rates as to estop them from maintaining
the present suit, and also have been gull
ty of such laches in not sooner seeking
an injunction against the infringements
of their rights as is fatal to the relief they
now seek.
This contention, in my opinion, is not
well taken. So far from the action of the
city council having been acquiesced in by
the defendants, 1t has been the subject of
repeated protests. But, even IL the de-
PENDANTS had not protested, their acquies-
cence in ordinances establishing rates
prior to the year 1896 would not be
year, for the obvious reason that the last
named ordinance made a greater reduction
of rates than any previous ordinance.
Without reference, however, to the facts
that the ordinances of 1896 and 1897 made
greater reductions than had been made in
previous ordinances, It may be stated
broadly that acquiescence in an ordinance
passed one year cannot be acquiescence In
an ordinance passed the succeeding year.
The ordinances passed consecutively
through a series of years, beginning, for
instance, with 1880, and extending down
to 1889, were not one continuous act in
fringing compliments rights, but each
ordinance was separate and distinct in
fringement, and, therefore. acquiescence
in one does not estop the defendants from
assailing another.
v. Defendants further contend that If
the Limitation in the contract of July the
ed, 1868, upon the power Of the city to fix
water rates be valid, the ordinance of 1897 is
void upon it's face, and does not throw
any cloud upon complainants' rights under
said contract, nor expose their property
to forfeiture, and, therefore. compliments
have adequate remedies at law. by actions
Valley Waterworks VS.. Bartlett, mayor,
ct al, 16 Fed. Rep. 615; Alpers vs. City and
County of San Francisco, 80 Fed. Rep. SOB;
and Murphy VS.. East Portland ct al, ~
Fed. Rep. 1908.
This contention Is erroneous, in its as
sumption that the ordinance referred to is
void upon it's face, and. besides, is fully
answered by the decision on demurrer in
the case of Santa Ana Water Co. VS.. Town
Of San Buenaventura, supra. That case,
so far as it concerns the question of equit-
able Jurisdiction is in all essential re-
spects similar to the case at bar. This is
not true, however, of any Of the three
cases cited by defendants in this connec-
ton. Moreover, two of said cases, Alpers
VS.. City and County of San Francisco,
supra, and Murphy VS.. East Portland ct
all, supra, so far from supporting, are In
one respect against defendants conten-
ton. They hold, it is true, that the
judiciary will not restrain the passage by
a municipal corporation Of a proposed or
dinance upon a matter within the legisla-
tive discretion of such corporation, but
they at the same time expressly recognize
the competency Of the courts, after the
passage Of such an ordinance, to annul or
arrest its enforcement II 1t be unconstitu-
tional.
The case mainly relied on by defend
ants, however, is that Of Spring Valley
Water Works VS.. Bartlett. mayor. ct al,
supra, in which the court held that the
proposed ordinance, whose adoption was
sought to be restrained, if void at all, was
void on its face, and that because every
A. To-
jury could result therefrom. The
very essence of the rule there
enunciated by Judge Sawyer is that
the facts which nullify the ordinance
must appear from its inspection, the theory
being that, since the facts appear upon the
face of the ordinance, and everybody is pre-
sumed to know the law applicable to such
facts, the ordinance is a proclamation Of its
own nullity, and. therefore, cannot, in con-
temptation of the law, be productive of
harm. Thus it will be seen that the rule
is extremely technical, and Judge Saw
yer himself, while enforcing 1t. as he in
effect says. under the constraint of pre-
cedents, freely criticises Its severity. In
order to justify the application of such
rule every requirement of 1t should be
fully met.
The reason why the ordinance, in Spring
Valley Water Works, VS.. Bartlett, mayor,
ct AL. supra, If void at all, would have
been void upon Its face, was that the al
legged contractual rights which it attempt
ed to divest were granted by an act of the
legislature of California, that Of April the
22d, 1858, which act. without pleading or
proof, was within the courts knowledge.
In the case at bar, however, the ordi-
nance, upon its face, is valid, and its in
validity appears only when considered in
connection with the contract of July the
3d. 1868, and evidence showing what the
water rates were at that date. While the
court takes judicial notice of the ratifying
act of April the I'd, 1870, still, since the pro-
visions of the contract Of July the 22d.
1868, are not embodied In said act, I am
not sure that said provisions are matters
of judicial knowledge, although such
seems to be the ruling of the court, one Of
the justices dissenting, in Brady VS.. Page,
50 Cal, 50. Conceding, however. that the
court will take judicial notice Of all the
provisions Of said contract, still, the one in
question simply provides that water rates
shall not be reduced below the rates then
charged without indicating what those
rates were, and therefore the invalidity Of
the ordinance appears, not upon its face,
but only in connection with extraneous
evidence of what the rates were in July,
1865, and for this reason compliments have
adduced that evidence in the present case.
Defendants, in one of their briefs filed
on demurrer, discussing the branch of the
case now under consideration, say: THE
petition of compliments counsel seems to