The record-union., 1898-10-18
State Supreme Court Hands Down a
Decision
In the Case of George K. Fitch Against San
Francisco Supervisors.
The Ruling of the Court Practi-
cally Sustains in Office the
Members of the Old Board Who
Were Ordered Removed by Su-
perior Judge Wallace.

LOS ANGELES, Oct 1.-THE Su-
preme Court to-day handed down de-
cision in the case of George K. Fitch,
petitioner and respondent, vs. the Board
of Supervisors of the city and county OF
San Francisco the defendants and ap-
pellants, involving the question of the
rights of the board in fixing water
rates.
The Supervisors of San Francisco in
1897 failed to pass an ordinance, as re-
quired by law, for the regulation of
rates, in the month of February, but in
June following did pass such an ordi-
nance, to take effect in July. George
K. Fitch sought to secure the convic-
tion 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 re-
moval 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.
Now the final decision has been made,
and it's practical effect is the sustain
ing in office of the old Board of Super
visors on the ground, namely, that the
person instituting the suit was not an
interested party within the meaning
Of the wording of the Constitutions
though by implication some doubt is
cast upon the constitutionality of the
Act of March, 1891, which fixed pen
atty for the failure of the board to
comply with the constitutional require
mentS.
After reciting Article XIV, Section l,
of the Constitution, which relates to the
fixing Of water rates, the opinion says:
THE provision that the ordinance
fixing the rates shall not take effect un-
til July, although it is to be passed in
February, is manifestly for the purpose
OF afording to the person or company
supplying water ample time to adjust
the individual rates for it's consumers
IN accordance with. the terms of the
schedule fixed by the ordinance. and
also TO provide an opportunity, if neces-
sary, in case the ordinance shall not be
passed in February, to invoke process
for compelling the board to pass an or
dinance prior to July. The failure of
the board to pass an ordinance in the
month of February is, by the terms of
the section, made a condition precedent
to the right to ask for process to compel
action by it, since it cannot be deter
mined until after February has expired
whether there will be a failure to pass
the ordinance within such time. and
inasmuch as the right TO process for
the purpose Of compelling action by the
board cannot be invoked until after
February, it must follow that an ordi-
nance fixing rates which is passed sub
sequent to February is as valid as if it
were passed in February, and that the
rates fixed by such ordinances may be
collected from the consumer, since the
Constitution would not authorize the
issuance of process to compel action by
the board, if its action under such
process would be vain or nugatory.
Hence, an ordinance passed subsequent
to February, in the absence of such
process, is equally valid as if passed
under it's mandate"
The decision is by Justice Harrison,
and is concurred in by Chief Justice
Beatty and Justices Van Fleet. Hen
shaw. Temple and Mcfarland. A con-
current opinion by Justice Garoutte
was also delivered, in which the con-
stitutionality of the Act regulating the
proceedings of the governing bodies of
municipalities in fixing rates was dis
cussed at much length.