The herald., 1898-06-05

or the Inhabitants thereof is a franchise
and cannot be exercised except by author
ity of and in the manner prescribed by
law"
To carry out these provisions of the con-
stitution, the legislature of California
passed an act entitled: IAN Act to Enable
the Board of Supervisors, Town Council,
Board Of Aldermen" ETC., which was ap-
proved March 7th, 1881. Statutes of Cali
fornia, 1881. page 54)
In the year 1855 the electors of the city
Of Los Angeles. pursuant to provisions OF
the constitution of said state authorizing
them so to do, adopted charter for saio
city, which charter was, under the provis-
ions of said constitution. submitted TO the
| legislature of said state for Its approval
ratification and adoption. and the SAID
charter was on the 31st day OF January,
| 1889, adopted by said legislature, ana there-
| upon became, and ever since has been,
the charter of said city of Los Angeles,
and by the said charter it is provided, in
section 1893, as follows:
1.-THE rates of compensation for use OF
water to be collected by any person, COM
pany or corporation in said city shall be
fixed annually by ordinance and shall con-
! tinue in force for one year, and no longer.
|
month of February of each year, and take
effect on the first day of July thereafter.
| Should the council fail to pass the neces-
| sary ordinance fixing the water rates with
In the time hereinbefore prescribed, it shall
be subject to peremptory processes to COM
pei action at the suit of any party inter
ested."
| The ordinance Of 1897, now sought to be
annulled, was passed pursuant to the fore
| going constitutional and statutory provis-
| ions.
| The facts showing the connection of S. G.
Murphy and the Crystal Springs Land
and Water company with the litigation,
| need not be enumerated. since the de-
| PENDANTS waive all questions as to the
| joinder of these parties. and said facts
are not material to any point determined
| in this opinion.
The agreed statement of facts contains
certain stipulations in regard to the issues
submitted, which are likewise immater
here. but which will be carried into the
| final decree.
Complainants' contention, succinctly
stated, is that said ordinance of February,
| 1897, impairs the obligation of the con-
tract of July 22nd, 1865 between the city
| of Los Angeles and the assignors or'the
Los Angeles City Water company, Grit
| fin, Beaudry and Lazard in that the rates
fixed by said ordinance are less than the
rates charged at the date of said con-
| tract, and, therefore, said ordinance is
repugnant to the constitution of the
United States and ought to be annulled.
| This contention clearly involves a ques
| ton of federal cognizance.
The defenses to the suit are as follows:
First-That the said contract, in so far
as 1t purports to limit the right Of the
| city to regulate water rates. was on the
part of the city, unauthorized and is void.
Second-That the evidence fails to show,
| that the rates fixed by said ordinance of
| 1897 are less than the rates that were
| charged by the assignors of said water
company at the date of said contract.
Third-That said water company, since
| October the Goth, 1885, has continually vio-
| lated a material provision of said contract
by taking from the Los Angeles river more
than ten inches of water, measured under
| a four-inch pressure.
| Fourth-That there has been such ac-
| quiescence by the water company in the
! right of the city to regulate water rates
unrestrained by said contract as now pre-
| cludes complainants from obtaining the re-
lief sought.
| Fifth-That the injuries resulting from
| said ordinance are not irreparable, and
complainants have adequate legal reme-
| dies.
| These defenses will be considered sep
arately and in the order of their statement
/. A question has been raised by the
defendants as to the proper construction of
| that clause of the contract above men
toned, limiting the right of the city to
regulate water rates, and it will be best
to determine that question before passing
upon the validity of said clause. The con-
| tention Of defendants Is that said clause
refers exclusively to right of regulation
given the city by the contract itself, and
was not intended as Limitation upon any
power which had been or might thereafter
be conferred by the legislature of the state.
| This contention is not well taken. The con-
tract does not grant, nor purport to grant,
to the city any right in respect to the regu-
lation of rates, the language being that
| 1.-The mayor and common council of said
city shall have, and do reserve, the right
| to regulate water rates." etc. The use of
| the word reserve" shows that the parties
were contracting, not with reference to a
right which it was supposed the lessees
were granting to the city. but with refer
ence to a right or power which they as
sumed the city already possessed. The
parties manifestly intended by the clause
now under consideration, that the lessees
should have a right to the minimum rates
prescribed, namely, the rates that were
then charged, and If the city was author
lied to make such an agreement, neither it
| nor the legislature of the state could there
| after lawfully reduce the rates below the
minimum so agreed upon. Whether or not
these minimum rates are collectible by
actions at law, before they have been es-
| tablished by the city, need not be deter
mined here. now come to the question
of authority.
The city of Los Angeles was incorporated
by an act of the legislature of California
passed April the 4th 1850, which simply
described the boundaries of the city,
and declared it to be incorporated accord
ing to the provisions of the act entitled
IAN act to provide for the Incorporate ton
of cities" passed March the 11th, 1850,
fixed the number of councilmen at seven
and made said city successor to all the
rights, claims and powers of the pueblo of
Los Angeles in regard to property.
Section of the aforesaid act of March II
1850, is as follows: "Sec. 2. When any city
is Incorporated by a special act of the
legislature, such act may simply define the
boundaries of the city and declare it incor-
porated, in which case 1t shall be deemed
tncOrpOratad according 70 the DrOvisjopS of