100 Cal. 121 | Cal. | 1893
Lead Opinion
On March 27, 1893, the board of supervisors of the city and county of San Francisco passed an order—designated as Order No. 2622—fixing the rates of compensation to be collected by any person or corporation furnishing water for family uses, for private persons, and for municipal and public purposes, during the year commencing July 1, 1893, pursuant to section
We are satisfied that the judgment of the court below is erroneous, and that the facts found do not make a proper case for the exercise of the extraordinary remedy of mandamus.
The clause of the constitution—section 1, article XIV—under which it is sought to justify the judgment in the mandamus proceeding is as follows: “The use of all water now appropriated, or that may hereafter be appropriated, for sale, rental, or distribution, is hereby declared to be a public use, and subject to the
The city and county of San Francisco is a consolidated government, its charter being the “Consolidation Act” passed in 1856. Under that act the board of supervisors is the legislative department of the municipal government; although it is provided therein that ordinances upon certain enumerated subjects shall not be effective unless approved by the mayor (whose office was created by said act), or unless, after his veto, nine members of the board shall vote therefor. Under the act, however, there are many things which the board ■ may do without the concurrence of the mayor; and there are many powers which the mayor may exercise independently of the board. Under this condition of
Constitutional and statutory provisions are subject substantially to the same rules of construction; the main object being in all cases to ascertain the meaning of the lawmaker. A constitution “must be read, interpreted, and expounded in the same manner, by the same means and methodswhich are appropriate to all other legislative acts.” (Pomeroy’s Constitutional Law, p. 14.) Now it is clear that there should be no such a construction of language as would lead to absurd or impracticable results, or compel a court to decree a thing substantially impossible, or which is in plain violation of fundamental principles of law or equity firmly established and universally recognized, unless such language absolutely requires such construction. The judgment in the case at bar first commands appellants “to act upon the objections of the mayor,” which, we presume, means to vote formally on the question whether the veto shall be sustained; and then, assuming that there may not be nine votes in favor of the order, commands them forthwith to “proceed to fix the rates.” If they should vote on the veto, and a majority of the supervisors, but not nine, should vote for the order, of course, under the judgment, they would be compelled to “ proceed ” and pass another order, and if that should be vetoed with the same result, then another, and another, and so on indefinitely. So that if the board should not yield its views to those of the mayor there could be no legal fixing of water rates at all. But the section of the constitution in question provides that the water rates “ shall be fixed annually,” to commence on July 1st, and that “any board or body” failing to do so shall be subject to process to compel action, and that any person collecting
Moreover, the construction contended for by respondent violates the well-settled, long recognized and fundamental principles which have always limited and governed the jurisdiction of courts in the proceeding of mandamus; and a design to undermine and unsettle those principles is not to be implied by any construction not forced by imperative language. It is, beyond doubt, the universal rule that mandamus will not lie to control the judgment of an officer or tribunal to whom is given discretionary power—the power to examine, consider and determine. In such a case the writ can be used only to
When we look at the language of said section 1 of article XIV, we see not only that it fails to require the construction put upon it by respondent, but that it clearly avoids the consequences above stated. So far we have assumed that the constitutional provision in question is really susceptible of two different constructions—one as presented by respondent, and the other as contended for by appellants; but it is readily perceived that, the former is strained, difficult, and forced, while the latter is apparent and obvious, and rests naturally and easily upon the surface of the language employed. The first and leading words in that part of the section which designates the depository of the power are “the hoard of supervisors”; the balance of that part of the section merely makes exceptions of those municipalities of which boards of supervisors form no part. At the
We do not deem it necessary to discuss the question whether, if we were to look to the Consolidation Act alone, the Order No. 2622 would require the approval of the mayor, although it is difficult to see that it would be embraced within any of the enumerated cases in which he is given the veto power by that act; and the veto power is not to be favored by any strained construction; it is to be recognized only where clearly granted. But the power in question here comes, not from the Consolidation Act, but from the constitution of the state. It could have been granted in that instrument to the mayor, or to the supervisors, or to any body of municipal officers, or to the judges of the courts. It was, however, expressly granted to the board of supervisors; and
Of course, when a grant of power is made to several persons, or to a board consisting of several persons, the power is to be exercised by a majority of those persons, unless the power is otherwise limited by the grant itself. This is not only a necessary rule, and established by the general authorities, but it is expressly declared in section 12 of the Civil Code, which provides that “ Words giving a joint authority to three or more public officers, or other persons, are construed as giving such authority to a majority of them, unless it is otherwise expressed in the act giving the authority.”
Our conclusion is that the power to fix water rates in the city and county of San Francisco is granted by the constitution of the state solely to the board of supervisors of said city and county; that the matter of fixing such rates requires the exercise of discretion and judgment; that the board, having exercised its discretion by passing said Order No. 2622, cannot be compelled by mandamus to change its judgment or to take further action thereon; that said order is valid, notwithstanding the attempted veto of the mayor, and legally fixes the rates to be charged for water of said city and county during the year commencing July 1,1893; and that the judgment of the superior court, commanding said appellants to take further action in the premises is erroneous.
The judgment appealed from is reversed, with directions to the superior court to dismiss the proceedings.
Garoutte, J., concurred.
Concurrence Opinion
Whether the power to fix water rates in the city and county of San Francisco is vested in the board of supervisors alone, or whether the mayor is a constituent part of the governing body of that
Article XIV, section 1, of the constitution, declares that the rates for the use of water supplied to any city and county shall be fixed annually “ by the board of supervisors, .... or other governing body of such city and county, by ordinance or otherwise, in the manner that other ordinances or legislative acts or resolutions are passed by such body.” If the determination of the question above stated is limited to the provisions of the constitution alone, it is clear that this duty is imposed upon the board of supervisors alone. The phrase “ or other governing body,” inserted in the section after the “ board of supervisors” already designated, does not limit or qualify the functions of that board, hut is evidently inserted for the purpose of supplying any omission in the previous enumeration of the titles by which the governing bodies of the several towns or cities may be known, and applies to those municipalities whose governing bodies are otherwise entitled, as, for example, the board of trustees in the city of Sacramento.
The respondent contends in substance that the term “ governing body” is a nomen generalissimum, of which
We are not called upon here to determine how the water rates in San Francisco should be fixed, in case the governing body of the city and county of San Francisco should be changed, as that city is still governed by the same charter as existed at the adoption of the constitution. The contention of the respondent that the mayor is a part of the governing body of San Francisco rests upon the provisions of section 68 of the Consolidation Act, which declares that certain ordinances shall be presented to him for approval “ before they take effect.” This “ approval ” of the mayor is, however, an act distinct from the passage of the ordinance, and it is not called into exercise until after it has been passed by the board of supervisors. The mayor has no vote upon its passage, and the language of the section requiring it to be presented to him for his approval is that the ordinance, “ after the same shall pass the board, shall, before it takes effect, be presented to the president of the board (mayor) for his approval.” The Act of 1868 (p. 702) does not' extend the power of the mayor in the passage of any ordinance or resolution by the board of supervisors, but merely provides that in those cases in which he is authorized to exercise a disapproval of their acts, nine votes shall be necessary to override his action. The same act provides that any ordinance, order or resolution may be passed by the vote of seven members of the board, and, consequently, every ordinance which is adopted by seven members is valid immediately upon its passage, unless by virtue of
The mayor is not a member of the hoard of supervisors, nor is he necessarily a constituent part of the legislative power of the municipality. His functions are of an executive or administrative character, and in article XI of the constitution he is in several places styled the “chief executive officer” of a city. Whatever power he may at any time exercise in the legislative functions of a municipal government is never to be implied, but must find its authority in some positive statute, and, as the constitution confers upon the board of supervisors the power to fix the water rates by an ordinance, and neither makes any limitation upon their absolute authority in the matter, nor refers- to any approval of their act by the mayor, wn are not justified in holding that his approval is necessary.
It is further contended by the respondent that, inasmuch as the constitution requires the ordinance fixing the water rates to be passed by the board of supervisors “in the manner that other ordinances or legislative acts or resolutions are passed by such body,” and, as by the provisions of section 68 of the Consolidation Act the mayor’s approval is necessary to the validity of certain ordinances of which it is claimed this is one, such approval is a part of the “ manner” in which the ordinance must be passed. The reference therein to the “ manner ” in which legislative acts are passed may varv according to the provisions of the statute under which the municipal body is organized. There may he no power to pass any legislative act until after it has been offered at a previous meeting of the board, or until after it has been published for a certain number of days, or the charter may require that the vote upon its passage shall be by having the ayes and noes entered upon its records, or by having the original ordinance signed by the members of the body voting therefor. As a creature of the legislature, the mode in which
Even under the provisions of section 68 of the Consolidation Act, the approval of the mayor does not become essential to the validity of an ordinance fixing water rates. His approval is required to only certain classes of ordinances which are enumerated in that section. These are ordinances “ providing for any specific improvement, the granting of any privilege, or involving the lease or other appropriation of public property, or the expenditure of public moneys (except for sums, less than five hundred dollars), or laying tax or assessment, or imposing a new duty or penalty.” It is sufficient to say without further discussion that an ordinance fixing water rates is not included in either of these classes. The direct object and purpose of the ordinance does not involve the expenditure of any public moneys, but is to perform a public duty imposed by the sovereign people upon a designated tribunal of determining the compensation which the water company shall receive in the exercise of its franchise. Although this ordinance is the act of a legislative body, and is to that extent a legisla
The proposition that the power to fix the water rates rests with the supervisors alone is not now presented for the first time. In Spring Valley Water Works v. San Francisco, 61 Cal. 18, Chief Justice Morrison said that this provision for fixing the water rates “is as broad and comprehensive as the English language could make it, and gives to the board of supervisors of the city plenary power over the subject matter to which the article relates,” and in another case between the same parties, reported in the same volume (61 Cal. 3), Justice McKee, in giving the opinion of the court, said: “Water rates must be fixed by the board of supervisors, pursuant to the provisions of the Act of 1881, and not by a board of commissioners appointed under the Act of 1858.” In another case between the same parties (82 Cal. 305; 16 Am. St. Rep. 116), this court said: “It must be conceded in the outset that the use of water for sale is a public use, and that the price at which it shall be sold is a
For the foregoing reasons, as well as those presented by Mr. Justice McFarland, the judgment should be reversed and the court below directed to dismiss the proceedings.
De Haven, J., and Fitzgerald, J., concurred.
Concurrence Opinion
I concur in the judgment and in the construction placed upon section 1, article XIV, of the constitution, by Mr. Justice McFarland. I think, however, that the judgment is not objectionable, on the ground that it seeks to interfere with the exercise of the discretion of the board, or any member
The record shows that after the mayor refused to approve the ordinance and return the same with his objections thereto, the board of supervisors refused to entertain the objection, and refused to take any action whatever with respect thereto. If the mayor had a right to act in the premises, it was the duty of the board of supervisors to consider his objections, and it is in no way an interference with their discretion to say that they must act in some manner upon them. When they have acted, of course that is the end of the matter; their discretion cannot be controlled by the court.
If it be conceded that the mayor is a part of the power which must fix the water rates, he is not necessarily a party to a proceeding of this kind. He acts independently and upon his own responsibility. This he has done. The board alone refuses to perform its duty, according to the theory of the petitioner, and I see no reason why a writ, in such a case, should not run against that branch of the law or order making power.
As the mayor, however, is not a part of the power which fixes water rates, under the provision of the constitution, the questions as to whether the judgment is directed against the proper parties, or whether it interferes with the exercise of discretion, are unnecessary to the decision in this case.
Concurrence Opinion
I concur in the judgment, upon the ground that the true construction of the constitution is that ordinances fixing water rates are to be passed as legislative acts of the particular municipality are generally passed, and not as they are passed in exceptional cases provided by act of the legislature.
To hold otherwise would be to admit the power of the legislature and boards of freeholders to adopt charters under which, with respect to all other subjects of legislation, a reasonable discretion and freedom of action
The board of supervisors of San Francisco is the legislative body as to all subjects of legislation with a few special exceptions, and its acts do not generally require the approval of the mayor.
Water ordinances must be held to fall under the general rule, and not within the exception.