The San Francisco call., 1908-10-11

parks, and $4,000 for the board of
education. An increase of 10 per cent
would add s26.400 TO the citys water
bill.
CITY BOUND BY BUDGET
Under the budget allowance" said
John Z. Behan, clerk of the board.
provision has been made for only
Sl76,0 600 forpgwater, and of course the
city is bound by the terms of the bud
get"
The company has no redress as far
as the city is concerned, for it Is for
hidden by law to shut off the cfty's
supply.
While the city attorney continues to
maintain that the consumers are not re-
quired TO pay the additional Is per cent,
z. ]. McCutchen, attorney for the Spring
Valley company, holds that the company
is fully within its rights in charging the
additional Is per cent advance. AS the
matter now stands it will be up to each
consumer to decide for himself whether
TO pay the excess or to insist on the
established rate. Should the excess be
paid it will be held by the court until
the final adjudication of the case and
then either returned to the consumer
or paid TO the company in accordance
with the final decision.
Attorney McCutchen, speaking for the
y J
Farrington's idea as conveyed in the
section quoted above was TO be inter
preted as though in place OF the word
provided" the judge had written "un-
less ii be understood" AS written by
Judge harrington, McCutchen held that
the word provided" had the meaning
of unless it be understood" This would
give the section the meaning that no
consumer was compelled to pay the ex-
cess unless it were understood that such
excess was TO be deposited under
authority of the court.
McCutchen has gone to some pains to
make clear just what Interpretation the
company places on the decision He
holds that the company is protected
under the terms of the injunction.
There is much confusion as to the
terms Of the Injunction" said Nc
Cutchen. 'and as to the relations
which viii exist between the company
and the rate payers while 1t is In force"
He pointed out that the injunction
specifically put into effect the tempo
rary restraining order, which was as
follows:
Defendants, each and all of them,
their servants, agents and employees,
and all consumers of water in said city
and county Of San Francisco are en-
Joined and restrained from beginning
or causing to be brought any suit or
suits, action or actions against the
complainant. in law or in equity. to
enforce the purported bill or ordinance,
or any suit or suits, action or actions,
against the complainant for the for
feiture OF complainant's franchise.
works or property, or for any other
purpose on account of complainant'S
failure or refusal to conform to the
rates purported TO be prescribed by
the purported bill or ordinance, and
from any attempt, suit or action,
directly or Indirectly, to compel COM
plainant to furnish water at the rates
purported TO be fixed or established by
said purported ordinance. and from in
any wise claiming or asserting or de-
manding that complainant is compelled
or required to furnish water at the
rates attempted to be established by
said purported ordinance"
ORDINANCE SET ASIDE
Proceeding from this point, Nc
Cutchen said:
BY the terms of the injunction all
rate payers are enjoined from any at
tempt to compel the company to furnish
water ar the rates fixed by the ordi-
nance, and from making any demand
upon the company to furnish water at
those rates. For all practical pur-
poses this ordinance is set aside until
e.
1t has no more present force or effect
than if it never had been passed. The
confusion seems to have arisen from
an imperfect construction of paragraph
10 of the order made by Judge Earring
ton"
Paragraph 10 is that in which Judge
Harrington states that no consumer
shall be required to pay above the or
dinance rate adopted by the supervis-
ors.
Courts have no power to fix rates
which can be collected by a water COM
pany," continued McCutchen, "'or which
must be paid by its consumers All
that they can do is to set aside a rate
which is found TO be inadequate or un-
fair. The court has found that the
rates provided by this ordinance are
inadequate and, therefore, that they
should not be enforced pending the
trial OF the case.
Upon the argument the attorneys
for the city contend very strenuously,
that If the rates were enjoined the com
pany would take advantage of the in
junction so as to collect exorbitantly
high rates, and it was to allay their
fears on that score that Judge Earring
ton limited the amount which might be
collected in excess of the rates fixed
by the ordinance, saying that the com
pany should not collect more than Is
per cent in excess of those rates 4 Hav-
ing in mind, however, that it was not
the province of the court to fix the
rate which the consumers must pay, he
was careful TO say that his order was
not to be understood as requiring them
to pay charges which the company
might make in excess of the fixed rates
las has been said, he had no power
to fix the rates, but he did have the
power to impose, as condition to the
granting of the injunction, that the
company should not attempt to collect
more than Is per cent in excess of
those named by the supervisors"
In conclusion McCutchen said that
he believed it would be unfortunate il