The San Francisco call. [volume] (San Francisco [Calif.]) 1895-1913, 1898-10-18

pired whether there will be fallufe
to pass the ordinance within such
time" and, inasmuch as the right to
process for the purpose of competing
action by the board cannot be IN
voked until after February, 1t must
follow that an ordinance fixing rates,
which is passed subsequent to Feb
ruary is as valid as if it were passed
in February, and that the rates hxed
by such ordinance may be collected
from the consumer, since the consu-
tuition would not authorize the issu-
anCe of process to compel action by
the board, if its action under such
process would be vain and nugatory
Hence an ordinance passed SUISSE
quent to February in the absence of
such process is equally valid as If
passed under it's mandate. 1t must,
therefore, follow:
The provision of the section which
renders the board liable to such fur
Their processes and penalties as the
Legislature may prescribe in case of
its failure to pass the ordinances
within the month of February clearly
indicates not only that in the absence
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 pre-
scribe.
In pursuance of this provision of the
constitution the Legislature passed
the act of March Z, 1881 (Stats. of 1881
p. 81. But, while the authority TO
prescribe d penalty for the failure of
the board is referable to this section,
the extent of the penalty and the pro-
ceedings for its enforcement must be
IN conformity with the legislative
power elsewhere conferred by the con-
stitution. Section of this act is as
follows:
ANY Board of Supervisors or other
legislative body Of any city and cOun-
ty. city or town, which fail or refuse
to perform any of the duties prescribed
by this act, at the time and in the
manner herein specified, shall be
deemed guilty of malfeasance in Of
flee, and upon conviction thereof at the
suit of any interested party, in any
court of competent Jurisdiction, shall
be removed from office"
To the extent that this section au-
thoriZes the penalty to be imposed lat
the suit of any interested party" it is
not within the provision of the above
section of the constitution, unless il
should be held that the provision for
the penalty is part of the process
authorized TO compel action by the
board; but after an ordinance has been
passed there is no occasion for in
volIing any process TO compel action
The evident purpose of the section is
TO provide a penalty by way of pun
ishment for the delinquency of the
board The term in which the delin-
Quency is defined" malfeasance in Of
fice"-and the declaration that upon
conviction" of the delinquency the
board shall be deemed guilty" and
the penalty provided-"shall be re-
movaI from office" all point to an
offense which has been completed, and
are conclusive reasons for holding
that the purpose of the section was not
to compel action by the board, but to
punish it for its failure to act. The
provision in the section that the pen
atty may be imposed Eat the suit of
any interested party is, however, in
consistent with section 20 of article
VI of the constitution, which is:
THE style of all process shall be
the People of the State of California
and all prosecutions shall be conduct
ed in their name and by their au-
thority."
In Whatever terms the failure of the
board to pass the ordinance in Febru-
airy may be characterized, such fail
ure aside from the rights of party
who may compel action by the board,
is an offense against the entire State.
and not against any individual, and
under the above provision Of the con-
stitution the Legislature has not the
power to authorize a prosecution for
such offense at the instance of any in
dividual.
Moreover, irrespective of these con-
siderations, the plaintiff herein is in
no respect an interested party" at
whose instance the penalty may be
imposed. He alleges in his complaint
as the basis of his right to maintain
the action that said plaintiff is a citf-
zen of the United States and Of the
State of California, and is and for
many years last past has been resi-
dent taxpayer, householder and free
holder within the said city and
county, and a user and consumer
of the water sold and distrib-
uted and supplied by the Spring
Valley Water Works, a corpo-
ration as hereinafter set forth, to
said city and county and the inhab-
itants thereof, and therefore is in
terested in the rates of compensation
collected and to be collected by said
corporation for the use of water so
supplied and to be supplied to said
city and county Of San Francisco and
the inhabitants thereof"
If it be assumed from the allegation
that he is a user and consumer of wa
ter, and that he is also a rate-payer,
1t does not follow that he has any in
terest which authorizes a prescott
ton of the board for it's alleged offense,
1t cannot be said that one citizen of
the State or of the city more
than another is interested in having
a penalty inflicted for delinquency in
official duty, and the use of the term
party interested" rather than per
SON. in the above section of the stat
ute indicate that the Legislature in
tended the suit to be instituted by
one who had some personal and indi-
vidual interest in the subject-matter,
who had been injuriously affected
by the failure to pass the ordinance.
1t is shown by the record herein that
on the I'd Of June, 1897, the Board Of
Supervisors did pass an ordinance fix
ing the rates to be collected during
the year commencing on the LIST of
July succeeding, and, as the present
action was not commenced until the
18th of July the plaintiff was not at
that time a party In any respect
interested by reason of the failure of
the board to fix the rates in Febru-
airy.
We have seen that an ordinance fix
ing rates which is not passed until
after February is as valid for the