193 P. 294 | Cal. Ct. App. | 1920
This is an appeal from an order of the trial court recalling and quashing certain writs of execution and the levies made thereunder which had been caused to be issued by the plaintiff upon a money judgment obtained by it against the town of Sausalito, a municipal corporation, and which under the plaintiff's direction the sheriff had undertaken to levy upon the plant and waterworks owned and operated by the defendant as such municipal corporation for the purpose of supplying water to the town and people of Sausalito, and also upon the so-called franchise of the said defendant to use the streets and highways of such town for such purpose, and to sell such water to the inhabitants of Sausalito and its vicinity and to charge and collect tolls therefor.
The sole question presented upon the hearing of this matter in the trial court and upon this appeal is as to whether the municipally owned waterworks of said defendant and its so-called franchise for supplying water to its people can be made the subject of levy and sale upon execution issued on a money judgment obtained against said municipality. The trial court determined this contention adversely to the plaintiff, and we are asked to reverse its order made in that regard upon this appeal.
In support of its contention the appellant urges that in undertaking to acquire and operate a municipal waterworks system the town of Sausalito is undertaking to act not in a governmental but in a proprietary capacity; and that since it is so engaged in acting it stands in respect to its liability for its debts, and also in respect to the means for the enforcement of such liability, in the same position as a private corporation would stand if engaged in a similar enterprise. In making this contention the appellant strongly relies on the cases of Davoust v. City of Alameda,
We think the foregoing language may be given pertinent application to the questions presented upon this appeal, since the effect thereof is to determine that a municipality operating a municipally owned water system is not the less a public corporation while engaged in the exercise of its powers.[1] This being true, we are confronted with the question as to whether or not a strictly public or municipal corporation owning and operating its own waterworks and system for supplying itself and its inhabitants with water under the powers conferred upon it by the constitution and by the Municipal Corporations Act (Laws 1883, p. 93), under which it is organized, can have its said waterworks and system seized and taken from it under a writ of execution, and be thus deprived of the right which it thus possesses and exercises to supply its inhabitants with water. We are of the opinion that this cannot be done; that the sections of the code giving creditors of corporations the right to enforce their judgments by means of writs of execution have reference to private and not public corporations, and that a public corporation does not become a private corporation when it undertakes to exercise such proprietary functions as the establishment and operation of such public utilities as waterworks or light works or other activities of a like character. In the case of People v. SanJoaquin Agricultural Assn.,
In the case of Tulare Irr. Dist. v. Collins,
To like effect is Denicke v. Santa Clara Agr. Assn.,
We are satisfied that a like reasoning is to be applied to the facts of the case at bar. The town of Sausalito, as a *82 public corporation, is engaged through its waterworks and system in administering a public use under the express authority of the constitution and of the Municipal Corporations Act under which it was organized. To permit a private creditor of such public corporation to levy an execution upon its said property while so devoted to public use would be in effect to permit such private creditor by such means to nullify the provisions of the constitution which invest it with such powers, and terms of the Municipal Corporations Act by virtue of which it is undertaking to exercise the same.
[2] It is further contended by the appellant herein that the right which the defendant as a municipal corporation possesses to distribute the water derived from its waterworks by means of its distributing system to its customers, the water users of said town and its vicinity, and to make charges therefor, is a franchise, which may be seized and sold under execution under sections 388 and 389 of the Civil Code. While it may be conceded that the grant to a private corporation of the right to exercise such functions as that of supplying water to a body of customers for a consideration in the way of tolls would be a franchise under the accepted definition of that term, we do not think such definition is to be extended to similar powers and activities when the same are being exercised by a public corporation by virtue of the powers possessed by it under the constitution and laws of the state. It is true that in one of the cases from which excerpts were quoted in the case ofDavoust v. City of Alameda,
For the foregoing reasons we are of the opinion that the order should be affirmed, and it is so ordered.
Waste, P. J., and Welch, J., pro tem., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on October 25, 1920, and the following opinion then rendered thereon:
THE COURT. — In denying a rehearing in this case we think it proper to say that we do not entirely approve the reasoning of the opinion of the district court. [3] A city is never other than a public corporation, whether exercising its governmental powers or other powers, in the operation of public utilities, or acting in the quiescent state of a property owner. The fact that it is a public corporation does not determine the question whether or not its property is subject to execution. [4] The true rule is that the property which it holds for the purpose of exercising its governmental powers or for the purpose of exercising its constitutional power to operate waterworks to supply its inhabitants with water or other like public purposes is not subject to execution, the reason being that to subject it to sale would interfere with the exercise by the city of some of the powers for which it was organized. On the other hand, property which it holds merely as a proprietor, devoting it to no use of a public character, such as lands acquired or held for other than public purposes and not in trust for public use, are subject to execution unless some statutory or constitutional provision forbids it. (Holladay v. Frisbie, 15 Cal. *84
630; Wheeler v. Miller,