The herald., 1898-10-18
REACHING OPINION.
1U11E1rE COURT DECIDES AN
urPoRrANT CONTROVERSY
THE FIXING OF WATER RATES
Removal Of San Francisco Supervisors
for Alleged Malfeasance IN Of
fce-Held Illegal

ZOE Axx0K0Q m0A4SdSaASC 4AA -
flce-Held Illegal
The supreme court yesterday handed
down a decision in the case of George n
Fitch, petitioner and respondent, VS.. tne
board OF supervisors OF the city, and county
of San Francisco, defendants and appellants,
involving the question of the rights OF the
hoard in fixing water rates. The decision
is by Justice Harrison, and is concurred In
by Chief Justice Beatty and Justices Van
Fleet. Henshaw, Temple and Mcfarland.
Concurrent opinion by Justice Garoutte was
also delivered, in which the constitution
atty of the act regulating the proceedings
of the governing bodies OF municipalities IN
fixing rates was discussed at much length
tions are Of interest to every city in Calitor'
MIA. and the conclusions of the court, as
given in the leading opinion, are here pre-
sented in full. ,o,.
The supervisors of San Francisco in 1894
failed to pass an ordinance, as required by
law, for the regulation of rates, in the
month of February, but in june following
did pass such an ordinance, to take effect IN
July. George X. Fitch, long publisher of
cure the conviction of the members OF the
board for malfeasance in office, by reason OF
their neglect in the manner specified. and
Judge Wallace of the superior court OF San
Francisco county ordered their removal
from office. One Morton petitioned for a
writ of prohibition to set aside the action
in appointing a new board of supervisors
until the matter could be fully reviewed by
the court. The decision Of the cause is as
follows:
The constitution, Article XIV, Section J.,
after providing that the rates to be col
lected by any person, company or corpora
ton for the use of water supplied to any
municipality or its inhabitants, shall be
fixed annually by the governing body OF
such municipality, provides: "Such ordi-
nances or resolutions shall be passed in
the month of February OF each year, and
take effect on the first day of July there
after. Any board or body failing to pass
the necessary ordinances or resolutions fix
ing water rates. where necessary, within
such time, shall be subject to peremptory
process to compel action at the suit of any
party interested, and shall be liable. to such
further processes and penalties as the legls-
lature may prescribe. Any person, COM
pany or corporation collecting water rates
in any city or county, or city or town, IN
this state, otherwise than as so established,
shall forfeit the franchises and water works
of such persons, company or corporation
to the city and county, or city or town where
the same are collected for the public use"
Two courses of action are thus authorized
to be pursued against the board Of super
visors or other governing body OF the mu-
in case of it's failure to pass such
ordinances or resolutions as will enable any
person or corporation to collect rates or
for the water supplied by it
to the municipality or its inhabitants
therein, viz, peremptory process to compel
the board to pass the ordinances or resolu-
pass them. fhe first is given by the CON
stitution itself, and may be invoked by any
party interested" without the necessity of
any legislation therefor. The party in
who is thus authorized to invoke
pass an ordinance fixing the water rates
is party who has an interest in
having the rates fixed, and who
would be injuriously affected if they
were not fixed The provision that
''the rates or compensation to be collected
shall be fixed annually" and shall continue
in force for one year and no longer" read in
with the concluding sentence Of
the section, by which a company which shall
shall forfeit its franchises and
water works for the public use, make it evil
dent that the flrnisher of water would be
Iniuriously affected if the rates are not
fixed, and is therefore party interested
who is entitled to such peremptory process,
The provision that the ordinance fixing
The rates shall not take effect until July,
although it is to be passed in February, is
for the purpose of atfording to
The person or company supplying water
ample time to adjust the individual rates for
is consumers in accordance with the terms
If the schedule fixed by the ordinance, and
also to provide an opportunity, If necessary,
in case the ordinance shall not be passed in
February, to invoke process for compelling
he board to pass an ordinance prior to July
The failure of the obard to pass an ordinance
n the month of February is, by the terms
Of the section, made condition precedent
TO the right to ask for process to compel ac-
tion by it, since it cannot be determined un
til after February has expired whether
The failure of the board to pass an ordinance
within such time;" and inasmuch as the
light to process for the purpose of compell-
ng action by the board cannot be invoked
until after February, it must follow that an
ordinance fixing rates, which is passed SUBJ
'equent to February, is as valid as if it were
passed in February, and that the rates
liked by such ordinance may be collected
from the consumer since the constitution
would not authorize the issuance of process
to compel action by the board, if its ac-
,ion under such process would be vain or
nugatory Hence, an ordinance passed
subsequent to February, in the absence of
'uch process, is equally valid as if passed
under its mandate.
The provision in the section which rem
lers the board " liable to such further pro-
,esses and penalties the legislature may
in case of its failure to pass the
ordinance within the month of February,
clearly indicates, not only that in the alb
sence of legislation the board will not be
liable to any penalty therefor, but also that
It will be liable to only such processes and
penalties as are within the power of the
legislature to prescribe.
In pursuance Of this provision Of the con-
stitution, the legislature passed the act
Of March 7, 1881 (Stats. of 1881, D. 54). But
while the authority to prescribe a penalty
,or the failure of the board is referable to
this section, the extent of the penalty and
the proceedings for it's enforcement must
oe in conformity with the legislative power
elsewhere conferred by the constitution.
Section of this act is as follows:
"Any board Of supervisors or other legis-
ative body of any city and county, city or
own, which shall fail or refuse to perform
my of the duties prescribed by this act.
It the time and in the manner herein spe-
cited, shall be deemed guilty of malfeas-
,nce in office, and upon conviction thereof
at the suit of any interested party in anv
court of competent jurisdiction, shall be re-
moved from Office
To the extent that this section author
yes the penalty to be imnosed "at the suit
>f npv int Il