62 Cal. 209 | Cal. | 1882
. The gist of the very able argument of appellant’s counsel is that, under the provisions of the present Constitution, no company or individual possesses the right to lay pipes in the streets of any incorporated city or town of the State for the purpose of supplying the inhabitants thereof with fresh water, until
Prior to the adoption of the present Constitution, the Legislature had that power. It could delegate to the municipal government, or itself exercise, the power of prescribing the terms and conditions upon which pipes might be laid and water furnished. The privilege lay only in grant from the Legislature, which might be, and which experience showed had been, abused. As with many others, in dealing with this subject, the framers of the Constitution of 1879, determined to, and did make many radical changes from the pre-existing condition of things. They enacted several provisions in relation to the subject to be considered, all of which must be taken and read together, and to each of which effect must be given. Those provisions are:
“Article xi., Section 19. * * * In any city where there are no public works owned and controlled by the municipality for supplying the same with water or artificial light, any individual, or any company duly incorporated for such purpose under and by authority of the laws of this State, shall, under the direction of the Superintendent of Streets, or other officer in control thereof, and under such general regulations as the municipality may prescribe for damages and indemnity for damages, have the privilege of using the public streets and thoroughfares thereof, and of laying down pipes and conduits therein, and connections therewith, so far as may be necessary for introducing into and supplying such city and its inhabitants either with gas light or other illuminating light, or with fresh water for domestic and all other purposes, upon the condition that the municipal government shall have the right to regulate the charges thereof.
“Article xiv., Section 1. 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 regulation and control of the State, in the manner to be prescribed by law; provided, that the rates or compensation to be collected by any person, company, or corporation in this State for the use of water supplied to any city and county, or city or town, or the inhabitants thereof, shall be fixed, annually, by the Board of Supervisors, or city and
“Art. xiv., Sec. 2. The right to collect rates, or compensation, for the use of water supplied to any county, city and county, or town, or the inhabitants thereof, is a franchise, and can not be exercised except by authority of and in the manner prescribed by law.”
Now, these provisions, as well as all other provisions of the Constitution, must receive a practical common-sense construction. They must be considered with reference to the prior state of the law, and with reference to the mischief intended to be remedied by the change. If the framers of the instrument had intended to leave the entire matter where it previously rested—in the hands of the Legislature—they would have said so in appropriate language. But it is perfectly evident that there were some things in regard to the subject that they were unwilling to trust to the Legislature. It was not with the view of “liberating the great public uses ■ of water and gas from legislative control, and making them independent of the State,” that the changes were made, but, on the contrary, it was - intended, in certain enumerated respects, to lay a stronger hand upon them than that of the Legislature—to wit, the hand of the Constitution itself. So it was, that by Section 1 of Art. xiv., the use of all water
But by the next section of the same article of the Constitution, the right to collect the rates or compensation so established is declared to be a franchise, “and can not be exercised except by authority and in the manner prescribed by law”—that is, by statute law. But, of course, the Constitution contemplated the enacting by the Legislature, where they did not exist, of all laws necessary to give effect to its commands, and that none should be passed in contravention of its provisions. When, therefore, the Constitution fixed the manner of establishing the rates or compensation to be charged for water furnished to any city and county, or city or town, or the inhabitants thereof, and further declared that the right to collect the rates or compensation so established is a franchise, and can not be exercised except by authority of and in the manner prescribed by law, it was the duty of the Legislature, if they did not exist, to provide the needful laws. But the failure of the Legislature to do so, if failure there was, could not prevent the establishment of the rates or compensation specifically required to be established by the Constitution. And so with respect to the privilege granted by Section 19 of Article xi. of the Constitution of laying pipes in
We have quoted at length the remarks accompanying the introduction of the provision, for the purpose of showing that the members of the Constitutional Convention had distinctly put before them the evils intended to be remedied, and the purpose of the enactment; and thus informed, they adopted it. Yet we are asked to hold, in effect, that after all, the whole matter rests where it did before—with the Legislature. This we can not do. Nor, under our construction of the provisions in question, do we discover any indication of a return “to the doctrine of the Dartmouth College Case” nor any fostering of monopolies, but, on the contrary, the most manifest intent to prevent them as respects the important subjects treated of— gas and water. By the adoption of those provisions the people asserted their unwillingness to leave the entire subject in the hands of the Legislature, and in the particulars already indicated, declared the rule that should govern, in the organic law itself, and gave to the Legislature the “regulation and control” in all other respects.
It is also claimed on the part of the appellant that the word “city” used in Section 19 of Art. xi., supra, does not include towns, and therefore does apply to the town of Woodland. But in this position, also, we are unable to agree with the learned counsel for appellant. As already said, all of the provisions of the Constitution above quoted must be taken and read together. Indeed, this is conceded by counsel. Now, Section 1 of Art. xiv. provides that the rates or compensation to be collected by any person, company, or corporation in this State for the use of water supplied to any city and
Is it not too plain for argument that the rates or compensation required to be fixed by this provision of the Constitution are the rates or compensation to be collected by the individual or corporation introducing water “in any city where there are no public works owned and controlled by the municipality,” as provided by Section 19 of Art. xi?
That the provision of the Constitution requiring the rates or compensation to be fixed has no application to water furnished by a municipality itself, is conclusively shown by the concluding clause of the provision, which.is in these words: “Any person, company, or corporation, collecting water rates in any city and county, or city or town in this State, otherwise than as so established, shall forfeit the franchises and water works of such person, company, or corporation to the city and county, or city or town where the same are collected, for the public use.” It would be absurd to say that the Constitution meant to provide for the forfeiting of the water works of a city and county, or city or town to itself. We think it clear that the rates or compensation required to be fixed by Section 1 of Article xiv. are the rates or compensation to be collected for water authorized to be introduced by Section 19 of Article xi., and that the latter section secures to individuals and to corporations duly incorporated for such purpose under and by authority of the laws of the State, the right to introduce water into the classes of municipalities'that by Section 19 of Article xi. are given the right to fix the rates or compensation for its use—that is to say, cities, towns, and cities and counties. This construction brings the several sections into harmony, and gives effect to the evident purpose of the Constitution.
Other points are made which need not be noticed in detail.
Our conclusion is that the judgment and order ought to be affirmed, and it is so ordered.
Morrison, C. J., and Myrick and Sharpstein, JJ., concurred.
Thornton, McKinstry, and McKee, JJ., dissented.