48 Cal. 493 | Cal. | 1874
Lead Opinion
On the former appeal, and at the first hearing of the present appeal, it was assumed, by both Court and counsel, that the rights and obligations of the defendant were to be ascertained by reference to the Act of April 23d, 1858, authorizing Ensign and his associates to lay down water-pipes in the streets of Ban Francisco. But on the rehearing the point is made for the first time by the defendant that the Ensign act is unconstitutional and void, and consequently can confer no rights on the plaintiff nor impose any duties on the defendant. The eighth section of the Act is in these words: “This Act shall not take effect unless the parties
named in section one shall, within sixty days after its passage, duly organize themselves in conformity with the existing laws regulating corporations now in force in this State.”
It is contended that this is an attempt to confer corporate rights by a special Act upon Ensign and his associates, in violation of section thirty-one, article fourth, of the Constitution, which provides that “corporations maybe formed under general laws, but shall not be created by special Act, except for municipal purposes. All general laws and special Acts passed pursuant to this section may be altered from time to time, or repealed." The Act in question does .not purport to organize Ensign and his associates as a cor
It was the especial purpose of the framers of our Constitution to guard against these abuses by providing that ‘ ‘ corporations may be formed under general laws, but shall not be created by special Act, except for municipal purposes.” Nor were they content to leave it doubtful whether the Legislature would have power to modify or abrogate these general laws or special acts to create municipal corporations, so as to affect the rights of existing corporations. Hence, the Constitution contains the further provision that all general laws and special acts “passed pursuant to this section may be altered from time to time, or repealed.” It was intended by this provision to keep corporations within a wholesome legislative control, and to repel the assumption that their rights were held under a contract, which the Legislature was powerless to modify. Under these provisions the source from which private corporations must derive their powers and immunities is perfectly apparent. They can only “ be formed under general laws,” and can exercise no powers, except such as are de- „ rived from general laws. If this provision means nothing more than that the Legislature shall prescribe the mere formula by which a corporate entity may be called into life, and may then proceed to confer upon it by special act, at its discretion, extraordinary powers and privileges which
This brings us to" the consideration of the Ensign Act, so-called. The first seven sections confer upon Ensign, and his associates certain privileges, and" impose upon them, certain duties in respect to furnishing the city "and county of San Francisco with water for the extinguishment of fires, and other municipal uses. Section eight, already quoted, provides, that “this Act shall not take effect unless the parties named in section one shall, within sixty dáys after its passage, duly organize themselves in conformity with the existing laws regulating coi-porations now in force in this State.” The grant, therefore, was not to take effect, until Ensign and his associates had become a corporation under existing laws. It took effect as a grant, not to Ensign and his associates as private individuals, but to the corporation when formed. It was an attempt by the Legislature to confer, by special grant, upon a private corporation about to be formed, certain peculiar privileges, and to-subject it to certain duties not common to other corporations formed under the same general law. For the reasons-already stated, this was not within the constitutional power of the Legislature. When Ensign and his associates became a corporation under the general law, they took only such rights as were derived from that law, and were subject only to such duties as it imposed. The Legislature, by Special Act, could not increase or diminish either.
On the first appeal, and at the former hearing on the present appeal, this point was not mooted, nor our attention directed to it by counsel; and in the view we then took of the case, our opinion was that the rights of the parties were "to be determined by the Ensign Act, though on the first appeal this point was not necessarily involved in the decision. We see no reason to change the views we then expressed, if it be assumed that the Ensign Act was a valid and constitutional enactment. But we are satisfied it is not, and must be disregarded in determining the relative rights and duties of the parties. Tested by the general law under which the defendant was organized, it is under no
Judgment and order affirmed.
The foregoing opinion was delivered at the April term, 1874, and a rehearing having been applied for, the following opinion, denying the same, was delivered at the July term, 1874.
In the former opinion on this appeal, we held that the Act of April 23, 1858, known as the “Ensign Act,” is in violation of Art. IY, section thirty-one of the Constitution, which provides that “corporations may be formed under general laws, but shall not be created by special Act, except for municipal purposes.” A rehearing is asked, partly on the ground that this clause of the Constitution has received a different construction in the case of the California State Telegraph Company v. Alta Telegraph Company (22 Cal. 398); and that this decision has become a rule of property in this State, and ought not now to be disturbed, even though it was erroneous. After a careful examination of that case, I am satisfied it cannot be sustained, either on reason or authority. Mr. Justice Crocker, in delivering the opinion of the Court, refers to several adjudged cases as supporting the conclusions at which he arrived; but an examination of these cases shows that they were misapprehended by the Court, and do not support the decision.
The first case referred to was Aurora v. West, (9 Ind. R. 85.) The City of Aurora was incorporated by special Act, before the adoption of the new Constitution; and, by its charter, was expressly authorized to subscribe for stock “in any chartered company, for making roads to said city.” The charter of the city was continued in force under the new Constitution, and the city subscribed for stock in a railroad company, incorporated to construct a railroad from St. Louis to Cincinnati, the route of which was so located as to pass through Aurora. The action was to enforce pay
The next case referred to by Mr. Justice Crocker, is Gifford v. The New Jersey R. and T. Company, (2 Stockton, Ch. R. 171.) It will suffice to say of this case that the Constitution of New Jersey then contained no provision prohibiting the Legislature from creating corporations by special Act, and, of course, the question involved here could not have arisen in the case.
The next case referred to was the C. P. and A. Railroad v. Erie (27 Penn. St. R. 380). The Constitution of Pennsylvania provides that no law shall create, renew, or extend the charter of more than one corporation; and the question before the Court was, whether a certain Act of the Legislature had attempted to do either of these things. The decision was in the negative, and, of course, could have involved no point analogous to that under discussion here.
The only remaining case referred to was the Syracuse City . Bank v. Davis (16 Barb. 188). The Constitution of New York provides that “the Legislature shall have no power.
The decision is wholly unsupported by authority; and after, apparently, the most laborious research, counsel have failed to produce on the argument of this appeal, a single adjudicated case, or an extract from any work on constitutional law, which lends the slightest support to the ruling in the State Telegraph Company v. Alta Telegraph Company. In the annals of American jurisprudence, that case, so far as I am advised, stands as the sole exponent of the propositions which it enunciates. On the other hand, authorities are not wanting in support of the opposite construction of this clause of the Constitution. In Low v. The City of Marysville (5 Cal. 214), the question was whether it was competent for the Legislature, by special Act, to authorize the city (a municipal corporation) to subscribe for stock in a steamboat company organized to establish a line of steamers plying between that city and San Francisco. In delivering the opinion of the Court, Chief Justice Murray holds, that “ the powers of municipal corporations must be confined strictly to police or governmental purposes,” and that the power conferred upon the corporation to subscribe for stock in a railroad, could not be granted by special Act; “for as it would have been in violation of the Constitution
The Constitution of Ohio contains these clauses:
“Section 1. The General Assembly shall pass no special Act conferring corporate powers.
“ Section 2. Corporations maybe formed under general laws; but all such laws may, from time to time, be altered or repealed.”
In Atkinson v. The M. & C. R. R. Co. (15 Ohio State R. 35,) the Court, in construing these clauses, says: “Constitutional provisions would be of little value if they could be evaded by a mere change of forms. These provisions of the Constitution are too explicit to admit of the least doubt, that they were intended to disable the General Assembly from either creating corporations or conferring upon them corporate powers by special acts of legislation. It was intended to correct an existing evil, and to inaugurate the policy of placing all corporations of the same kind upon a perfect equality as to all future grants of power; of making such laws applicable to all parts of the State, and thereby securing the vigilance and attention of its whole representation; and, finally, of making all judicial constructions of their powers, or the restrictions imposed upon them, equally applicable to all corporations of the same class. We must give such a construction to the Constitution as will preserve its great leading objects intact.” The difference between the language of the Ohio Constitution and our own on this point is more in form than substance, as is apparent from the debates in the convention which ■ framed the Constitution of this State. The Constitution of Iowa provides that “the General Assembly shall not
The Legislature passed a special Act to amend the charter of -the city of Davenport, a municipal corporation, and in Ex parte Pritz, (9 Iowa, 30,). the question before the Court e was, whether the Legislature, by a special Act, could .amend the charter of a municipal corporation, and thereby place it upon a different footing 'from other municipal -corporations, organized under the general law. In con°'id_ •ering this point, the Court says the intention of ie Constitution was “ to' prevent special or loqa] legislation; to require that the Legislature should^ pass general laws upon all the subjects named, and m an other cases where such general laws could bo made appiicable. There can be no •question but that it was designed to confine the Legislature 4o general legislation, and leave the people, in their municipal capacity^ to organize and carry on their government unde sucb general laws. If this be so, then to say that the legislature may not pass a law to incorporate a city, but may, to amend an Act of incorporation in existence before the adoption of the Constitution, or charters formed under the general law, would make this provision of the Constitution practically amount to nothing. For if they may amend, they may, to the extent of passing an entire new law, except as to one section. Or they may at one session, amend half . the law, and at the next the other half; and thus the plain and positive prohibition of the fundamental law be evaded. By such a construction, the evil sought to be remedied would continue, if possible, in a more objectionable form.” The same principle was substantially decided in the Town of McGregor v. Bauliss, (19 Iowa, 43.) It will be observed that by the Constitution of Iowa, the prohibition of the Constitution was against special laws “ for the incorporation of cities and townswhilst in our Constitution the provision is that corporations, except for municipal pur
In the case of the Dartmouth College v. Woodward, (4 Wheat, 519,) it had been decided by the Supreme Court of
It is claimed, however, that the introduction of water into a city for the use of the inhabitants and of the corpor.ate authorities, is a “municipal purpose ” within the sense ■of the Constitution; and that private corporations may be .created by special Act for such purposes. In Low v. .Marysville, supra, it was decided that the term “municipal purposes,” as employed in this section of the Constitution, .referred only to governmental and police powers, and that the Legislature is prohibited from conferring, even upon a municipal corporation, by special act, any powers, except . for police and governmental purposes.” But, however this may be in respect to the corporation itself, it is clear that the right to introduce water into a city cannot be conferred upon a private corporation by special act, upon the plea that it was a corporation organized for “municipal purposes ” in the sense of the Constitution. If the Legislature, by special Act, can confer such powers upon a private corporation, for supplying a city with water, it can confer similar powers upon all corporations for similar purposes. It might by special Act incorporate a gas company to furnish the inhabitants with gas, or a coal or wood com
It is further claimed that the decision in the case of the California State Telegraph Co. v. The Alta Telegraph Co., has become a rule of property, and ought not now to be disturbed, even though it be conceded to be erroneous. In support of this proposition we have been referred to numerous statutes claimed to be similar to the Ensign Act, under which it is said great property rights have grown up. It may be that some, but I think no serious injury will result to property rights from overruling that decision. If it shall be found that serious inconvenience would otherwise result, the Legislature may ’amend the general law regulating corporations, so as to obviate the difficulties that would otherwise arise, and allow these corporations to re-incorporate under the new law. But, in any event, it is better that some temporary inconvenience should be submitted to, rather than that one of the most valuable provisions of the fundamental law should be practically obliterated. Eo greater calamity could befall this State, than to open wide the door leading to careless or corrupt legis_ lation in the form of special acts granting peculiar and onerous privileges to private corporations.
Another point made in the petition for a rehearing is that
It is contended, however, that even though the Ensign Act be void, the defendant, as the successor in interest of the San Francisco City Water Works, is charged with the duty of
Under these circumstances, the question arises: “What were the duties and obligations of the Spring Valley Water Works in respect to furnishing water for municipal uses free of charge?” By its act of incorporation it was only bound to furnish water free of charge “in case of fire or other great necessity.” If it is now under any additional obligation, it is because it has succeeded to the obligations of the San Francisco City Water Works. But if no transfer had been made, what would now have, been the obligation of the latter company in respect to furnishing water free of charge for general municipal uses ? By section eight of order number forty-six, ratified by the Act of April 8, 1863, this company could have been subjected to no greater
It has been suggested that the grant to the Spring Valley Water Works under the Ensign Act, was not a grant of corporate rights, but only an easement permitting the company to lay its pipes through the streets, subject to the performance of certain duties imposed by the Act. The argument is that an easement of this character is property, which it was in the power of the State to grant to an existing corporation as it might grant property to any corporation, coupled with such conditions as it saw fit to impose; and that this is not a grant of corporate rights within the purview of the Constitution. It is a conclusive answer to this proposition that the Ensign Act did not grant to the Spring Valley Water Works any easement of this character which it did not already possess under the general law, under which it was incorporated. By the fifth section of the general Act (Statutes 1858, p. 219) the company had the absolute right “to use so much of the streets, ways and alleys, in any town, city, or city and county, or any public road therein, as may be necessary for laying, pipes for conducting water into any such town, city, or city and county, or through or into any part or parts thereof.” The corporation already having this right, under its Act of incorporation, it is clear that the Ensign Act conferred upon it no additional
These views are decisive, I think, of the question under consideration.
But there are other reasons not less cogent why the proposition cannot be maintained. A private person can certainly grant to a corporation a right of way over his land, or any property, which, under its charter, the corporation is competent to take; and upon such terms and conditions as may be agreed upon. It is equally true that the State, in its capacity of a proprietor of lands, may do the same thing. It may, in that capacity, grant to a railroad corporation a right of way over lands belonging to the State, on such terms and conditions as it sees fit to impose. In these cases it is merely a matter of contract between parties capable of contracting, in respect to certain rights of property. But the State has no proprietary interest' in the streets of a city, dedicated to public use. In its capacity as a sovereign, it may regulate the use, or abolish it altogether. (Polack v. San Francisco Orphan Asylum, ante p. 490.) But, as a general rule, the fee is in the owners of the adjoining lands on each side, to the centre of the street, and the State can only regulate and control the easement which the public has over the land. When the State grants to a private corporation an easement over the streets, not common to the public at large, it acts in its sovereign capacity and grants a franchise, which enters into and forms an essential element in the corporate powers of the corporation; which becomes entitled to the right, not because the State has parted with any proprietary interest in the land, but because in its sovereign capacity, having the control of public highways, it has granted to the corporation a franchise, entitling it to an easement over the streets not common to the general public. This is purely a grant of corporate power, and nothing more or less, and, as we have already seen, such rights cannot be conferred by special Act. But even if it be conceded that the right to the use of the streets may be granted by special Act, still the Ensign Act must fail, because the right to
We are satisfied that these views are in strict accordance with the letter and spirit of the Constitution. On the opposite theory, the Legislature, by special Act, may grant to a railroad corporation the right to lay down its tracks in the streets on condition that it supply the inhabitants with water- or gas, or keep the streets in repair at a specified price, thus opening the door to corrupt and vicious legislation, against which the Constitution .has so carefully guarded.
Rehearing denied.
Concurrence Opinion
The general law providing for the incorporation of Water Companies took effect April 22, 1858; the “'Ensign Act” was approved the next day.
The latter did not purport to confer the franchises therein granted on Ensign and his associates as individuals, but attempted to confer them on a corporation to be formed by Ensign and his associates when (or immediately after) such corporation should be formed under the general law.
I agree with Mr. Justice Cbockett and with Mr. Justice Rhodes, that the Legislature can neither pass a special Act granting powers or privileges to a particular corporation-cre
We are to ascertain the rights, privileges, powers, duties, and obligations of the Spring Valley Water Company, by reference only to the general law under which it was incorporated, and as if the Ensign Act had never been passed.
All corporations created under the general law acquired the right to charge such rates for water supplied to consumers as should be fixed by the commissioners to be appointed as therein provided. The Ensign Act attempted to guarantee to the Spring Valley Water Works twenty per cent, per annum on the capital by that company invested, by declaring that the commissioners should never fix the rates so low as to yield less than such twenty per centum.
The general law required all water companies to furnish water to the extent of their means, and free of charge, to the city or town to which water was conducted, “in ca§e of fire or other great necessity.” I express no opinion as to the precise meaning of the phrase “other great necessity.” On the former appeal, and before I came to the bench, it was held by all the Justices qualified to sit in this case that these words did not include every municipal purpose. I shall assume that the construction given by the Court is correct. At a time, then, when the defendant—in common with all other corporations formed under the general law—was under obligation to furnish water to the city, into which water was conducted, “in case of fire or other great necessity,” the Ensign Act attempted to impose upon the defendant the additional obligation to supply water to the city for all “other municipal purposes.”
The Legislature could neither confer a benefit nor impose an obligation on the Spring Valley Water Works not conferred or imposed on all water companies by the general law. To confer a special benefit or impose a special obligation would be equally destructive of the uniformity which it is the object of section thirty-one, of Article IV. of the Constitution to secure.
Assuming that a grant by the sovereign of the privilege of laying down mains and pipes in the public streets—an incident inseparably connected with the franchise to charge tolls for water—can be considered as a grant by the owner of the fee of an “ interest in real estate,” (a proposition to which I cannot assent,) the defendant was entitled to such interest in real estate by virtue of its incorporation under the general law, before' the Ensign Act was by its terms to ■ take effect. That act, if valid, could not operate a grant with a certain condition of property of which the defendant was already the owner, without the condition. To sustain the Ensign Act, in the particular under consideration, it must be held that all of a class of corporations being in the enjoyment of certain franchises and subject to certain obligations under a general law, the Legislature can relieve one of the corporations of a portion of these obligations, or add to the burthen imposed on all, additional obligations binding on one alone.
The rights and duties of all corporations formed under the general law providing for the incorporation of water companies, are fixed and determined by its terms, and can only be changed or modified by amendment of the general law. And every such amendment must be made applicable to all corporations created under the general law.
I agree with Mr. Justice Crockett, that the validity of the Ensign Act is directly and necessarily involved in the decision of thé present case, and I agree with the conclusions which he has reached in respect to the other questions discussed in his opinion, and in the order denying rehearing.
Mr. Chief Justice Wallace, having been of counsel for the plaintiff, took no part in the decision.
Dissenting Opinion
The proposition that section thirty-one, of Article IY, of the Constitution, prohibits the passage of special Acts granting corporate powers to corporations, other than those created for municipal purposes; that this inhibition extends as well to a special Act conferring a particular corporate power, as to an Act providing for the entire organization of a particular corporation—is, in my judgment, fully sustained by the opinion of Mr. Justice Crockett; but, while concurring generally in his argument, I am of the opinion that the record does not present the question. There may be, and in my opinion there are, provisions in the Ensign Act, which are obnoxious to the constitutional objection just mentioned—such as the provision for fixing higher rates than other corporations are, by the general Act, allowed to charge—but they do not affect the other provisions of the Act. The Act grants to Ensign, his associates and assigns, the right to lay down water-pipes, etc., in the streets of the city, upon certain terms and conditions. Is' this a grant of corporate power? In my opinion, it is not. Time will not permit me to enter into an elaborate discussion of this question; and, indeed, I think it unnecessary, for the question seems to lie in a narrow compass. A private person cannot grant to a corporation corporate power, but he may grant to it property, or rights in property, necessary or proper for the use of the corporation, unless it be forbidden by positive law or necessary implication, from taking such property .or rights in property; and it is not a grant of corporate power. And such a grant may be on such terms and conditions as the parties may agree tq, provided they are not in contravention of law. For instance, a lot-owner in the city might grant to the corporation, when authorized, as contemplated by the Ensign Act, the right to lay down water-pipes over his lot, in consideration of the payment of a sum of money, or. the supply of a certain amount of water, or of all the water he might need for a certain purpose. The State might make the same grant in respect to land held by it, and on a like
The State may, in my opinion, grant to a corporation any property which a private person might, if he was its owner; the grant may be made on the same terms and conditions that a private person might exact. In respect to grants of that character, the constitutional provision in question does not impose greater limitations upon the power of the State, than upon that of a private person. I do not understand that a grant, whether by a private person, or the city, or the State, to a street railroad company, of a right to extend the track of its road, whether with or without exacting conditions, or a consideration, is in violation of the provision of the Constitution in question. Our statute books are full of Acts making grants of that character. The acts granting the right of way to street railroad companies over certain streets, are familiar, instances; also the acts granting to certain railroad companies subsidies, lands, and the right of way over certain streets in cities therein named; and grants of subsidies to certain telegraph companies, and .many other grants that might be mentioned. In any of those eases, a private person owning the thing granted, might have made the grant, and have annexed conditions of the same character as those mentioned in the acts referred to; and whether made by the State or private persons, the grants would not confer corporate power. In this case the right granted is a right of way—a mere easement—an interest in land (Appeal of N. B. & M. R. R. Co., 32 Cal. 505), and in my opinion, it is very clear, that the grant is not prohibited by the Constitution; that the Legislature had competent power to annex to the grant the conditions mentioned in the third section of the Ensign Act, and that they are valid and binding on Ensign, his associates and assigns.
If it be held, as is suggested, that the legislative grant of the easement to Ensign, his associates and as
If the Legislature has the power, on making the grant of an easement to impose terms or conditions, they cannot, in my opinion, be held to be repuguant to the constitutional provision in question, on the ground that they are more onerous than those prescribed by the general law. The principal power granted to water companies is the power to collect rates for the supply of water. The condition here, to supply the municipality with water for certain purposes, certainly does not enlarge that power, nor, in my opinion, does it in any manner touch or relate to any power granted to such corporations. The right attempted to be granted, to collect higher rates than those which may be fixed for other corporations, is, in my opinion, severable from the other terms and conditions; and they are not void because it is void.