104 F. 706 | 9th Cir. | 1900
A rehearing of this case was allowed upon the petition of persons interested in one of the questions involved appearing as amici carite, who earnestly contended that the long line of decisions of the supreme court of California, sustaining the validity of contracts for water rights entered into between wa
“It would be remarkable, indeed, if, during the consideration of all theSfe various casos down to the year 1898, the thought never suggested itself to either the court or counsel that the novel and notable provisions of the constitution about water, now relied on, could be invoked as defenses to those actions.”
The court then proceeded to set at rest all doubt of the validity of such contracts by carefully considering the provisions of the constitution which were referred to in the former opinion of this court in the present case, and held that the provision that “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 cannot be exercised except by authority of and in a manner prescribed by law'’ (article 14, § 2), did not prohibit the owner of a water ditch from sidling water, or contracting to furnish water, or from collecting rentals therefor, until the legislature should enact a statute expressly conferring the power to do these things; but that the true meaning of such provisiou is that, if the legislature shall prescribe by statute the manner in which such right shall be exercised, that manner must be followed, if the consumer insist upon it, but that, in the absence of such a statute, the words, “by authority of law,” mean only by authority of the general law of the land. The court said: “Our conclusion is that the contract involved in the case at bar is not made invalid by the provi sions of the constitution invoked by the appellants.” We consider that case an affirmative expression of the meaning of the former decisions of the supreme court of the state of California construing rights arising out of contracts between corporations such as the appellant: in the present case and consumers of water. It is urged that the doe trine'of that decision is not binding, upon us. We think oth
Our attention is directed to a recent decision of the United States supreme court in Osborne v. Town Co., in the official report of which, as found in 178 U. S. 22, 20 Sup. Ct. 860, Adv. S. U. S. 860, 44 L. Ed. 961, it is said in the syllabus that the court held the appropriation and disposition of water in California to be a public use, and that tolls for the use of the same “cannot be fixed by the contract of the parties.” This statement of the syllabus is misleading.
We have no doubt of the correctness of our former ruling, that the judgment of the circuit court should be reversed, and the cause remanded for further proceedings in accordance with these views. It is so ordered.
The misleading paragraph in 178 U. S. reads as follows:
“The appropriation and disposition of water in California Is a public use, and the right to collect tolls or compensation for it is a franchise, subject to regulation and control in the manner prescribed by law, and such tolls cannot be fixed by the contract of the parties.”
The syllabi published in 20 Sup. Ct. and 44 L. Ed. are not criticised.