The herald., 1898-10-18

pleted, and are concluNve reasons tor hold.
ing that the purpose OF the section was not
TO compel action BY the board, but to pun
ish it for its failure to act.
| The provision in the section that the pen
atty may be imposed ''at the suit OF any in
terested party, il, however, inconsistent
with section " of article 6 OF the constitu-
tion, which is: "The style of all processes
shall be, The People OF the State Of Cal
liornia, and all prosecutions shall be con-
Quoted in their name and by their author
ity." In whatever terms the failure of the
board to pass the ordinance in February
may be characterized, such failure, aside
from the rights of a 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 prosecution for such offense
at the instance of any individual.
Moreover, irrespective of these considera-
tions, 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 citizen of the United States and of the
state of California, and is and for many
years last past has been q res
holder within the said city and
county, and user and consumer Of water
sold, distributed and supplied by the Spring
Valley water works, a corporation, as here
matter set forth, to said city and county
and the inhabitants thereof, and therefore
is interested in the rates or compensation
collected and to be collected by said cor.
poration for the use of water SO supplied and
to be supplied to said city and county OF
If it be assumed from the allegation that
he is user and consumer of water, and
that he is also ratepayer, it does not fol-
low that he has any interest which author
ICES prosecution of the board for its al
legged offense. 1t cannot be said that one
citizen of the state or of the city more than
another is interested in having penalty in
ficted for delinquency in official duty, and
the. use of the term party interested"
rather than person" in the above section
of the statute, indicates that the legisla-
ture intended the "suit" to be instituted
by one who had some personal and individ-
,al interest in the subject matter, and who
had been iniuriously affected by the failure
to pass the ordinances. 1t is shown by the
record herein that on the I'd day of June,
1897, the board Of supervisors did pass an
ordinance fixing the rates to be collected
during the year commencing on the 1st of
July succeeding, and, as the present action
was not commenced until the 18th of July.
the plaintiff was not at that time "party'
in any respect interested by reason of the
failure of the board to fix the rates in Feb
ruary.
We have seen that an ordinance fixing
rates which is not passed until after Feb
ruary, is as valid for the purpose of deter
mining the rates to be collected as though
passed in the month of February, and that
the ratepayer is not interested in the time
at which the ordinance is passed, provided
there is at all times legal ordinance under
which he can know whether the amount
demanded for the water supplied to him
is correct. Prior to July l. 1897, the rates
to be paid by the plaintiff for the water
supplied to him were fixed by the ordinance
that had been passed in the previous year.
and on and after July 1st they were fixed
and capable of ascertainment by the ordi-
nance passed on the I'd of June.
It is not claimed that this ordinance is in
any respect illegal, defective or unjust; and,
as the plaintiff was not therefore in any re-
spect injuriously affected by the failure of
the board to pass the ordinance in Febru- |
ary. he was not an interested party within |
the meaning of the statute, and had no
authority to institute the present proceed |
ing. The court, therefore, when these
facts were brought to its attention. should |
have dismissed the proceeding
The Judgment and order DENYING a new |
trial are reversed and the superior court is
directed to enter an order dismissing the |
proceedinU