142 P. 878 | Cal. | 1914
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *297 This is a proceeding in certiorari, under the provisions of sections 67 and 68 of the "Public Utilities Act" of 1911 (Stats. Ex. Sess. 1911, p. 55), to review an order of the state railroad commission requiring the plaintiffs, as public service water companies, to install meters and lay service connections in the city of Glendale, without charge to the consumers.
The plaintiffs, respectively, on October 10, 1911, were and ever since have been engaged in the business of supplying water to the inhabitants of portions of the city of Glendale. They had each made and were enforcing a rule whereby each consumer of water from them, respectively, was charged and compelled to pay fifteen dollars for installing a meter and making service connection between the water main of the company in the street and the property line of the consumer. On the application of the city of Glendale, the railroad commission made the order complained of, which is as follows:
"It is hereby ordered that said rule or regulation be and the same is hereby abrogated, and that said defendants be and they are hereby ordered to make service connections to the property line and install meters free of charge for persons living in the city of Glendale along the mains or pipe lines of said companies and desiring connection for the service of water."
It is contended by the plaintiffs that the railroad commission has no power to supervise or regulate, in this respect, corporations or persons engaged in supplying water to the inhabitants of cities of the sixth class, to which class Glendale belongs.
The powers of the railroad commission over such public utilities are derived from the Public Utilities Act of 1911, enacted in pursuance of the authority given to the legislature by section 23 of article XII of the constitution, as amended on October 10, 1911. (Stats. Ex. Sess. 1911, p. 47.) *299
A franchise giving the right to furnish water to the inhabitants of a city, at rates to be fixed, and to use the streets as a place in which to lay the necessary pipes, does not authorize the holder to charge consumers for the expense of laying service pipes from the main to consumers along the street, unless such right is conferred by some clause of the franchise or by some provision of law applicable to such service. The franchise to furnish water to the inhabitants includes the duty of conveying the water to the consumer. The inhabitants have been given no right to use the streets at all for the laying of pipes therein. Their use of the streets for that purpose would be a private use. They could not make the connection without unlawfully obstructing the public street. The company, therefore, does not perform its full duty except by laying the service pipe to the premises of the consumer. (See Hatch v. Consumers' Co., 17 Idaho, 204, [40 L.R.A. (N.S.) 263, 104 P. 670]; Consumers' Co.
v. Hatch,
The opening sentence of said section 23 of the constitution defines public utilities, including therein almost every conceivable variety of public service, and giving the legislature power to include others, and declares that every person or corporation in the state engaged in any such service is "subject to such control and regulation by the railroad commission as may be provided by the legislature." It then declares that the commission "shall have and exercise such power and jurisdiction to supervise and regulate public utilities, in the state of California, and to fix the rates to be charged for commodities furnished, or services rendered by public utilities as shall be conferred upon it by the legislature, and the right of the legislature to confer powers upon the railroad commission respecting public utilities is hereby declared to be plenary and to be unlimited by any provision of this constitution." This, if not qualified by any other part of the section, would give the legislature authority to confer upon the commission the power to regulate public utilities in cities, as well as elsewhere. It is not left without qualification, however. The second paragraph of the section, after declaring that upon the passage of laws conferring upon the railroad commission powers respecting public utilities, all the powers of like character conflicting therewith and previously vested in municipalities shall cease, continues with the following:
"Provided, however, that this section shall not affect such powers of control over any public utility vested in any city and county, or incorporated city or town as, at an election to be held pursuant to laws to be passed hereafter by the legislature, a majority of the qualified electors voting thereon of such city and county, or incorporated city or town, shall vote to retain, and until such election such powers shall continue unimpaired; but if the vote so taken shall not favor the *301 continuation of such powers they shall thereafter vest in the railroad commission as provided by law."
Section 82 of the Public Utilities Act is in the same terms as the above proviso.
The effect of these two provisions is that the powers of control over existing public utilities which were vested in any city at the time of the adoption of the amendment and of the taking effect of the Public Utilities Act, on March 23, 1912, are still retained by such city, and that such powers do not pass to the railroad commission until, at an election for that purpose pursuant to the act of January 2, 1912 (Stats. Ex. Sess. 1911, p. 168), the qualified electors of the city, voting thereon, shall have voted not to retain such power or powers. The question whether this rule applies to public utilities which have come into existence or have entered a city since the passage of the Public Utilities Act, is not here involved, and as it has been argued in another case pending, we here express no opinion concerning it. No election has been held in Glendale on the question. Therefore, Glendale still retains such powers of control over public utilities as it had at the dates of the adoption of the amendment and the passage of the Public Utilities Act, and the railroad commission will not possess them until there is such an election with a result favorable to the transfer thereof to it. The question is therefore fairly presented whether or not, prior to October 10, 1911, the date of the adoption of said constitutional amendment, cities of the sixth class possessed the power to regulate water corporations engaged in supplying water to the inhabitants thereof, with respect to their operations and service within such cities, and in so doing to make such orders or regulations as that made by the commission and above set out. If these cities had such power, then it still remains vested in the city of Glendale, the railroad commission did not have the power and the order is void.
Section 19 of article XI, and section 1 of article XIV, of the constitution, and the act of March 7, 1881 (Stats. 1881, p. 54), each confer upon the cities in this state the power to fix the rates at which water is to be delivered to the inhabitants of a city by any company engaged in that service. So far as the order forbids a charge for meters it is a part of this rate-fixing power. In order to fix rates according to the exact quantity of water supplied a meter is necessary. The power *302
to fix rates in that manner must include the power to say who shall provide and pay for the meter to be used to determine the amount the consumer shall pay. "The requirement that the party furnishing water shall provide the means necessary for its measurement, so that the quantity furnished and to be paid for may be known, is not an unreasonable regulation. The expense of the meter could not be imposed on the consumer." (Spring ValleyW.W. v. San Francisco,
The regulation of charges for service connections is not so directly related to the fixing of rates. We need not determine whether it is a part of that process or not, for it is included in other powers that were vested in cities at the time stated. Section
Section 11 of article XI of the constitution provides that "Any county, city, town, or township may make and enforce within its limits all such local, police, sanitary, and other regulations as are not in conflict with general laws." There may be some room for doubt whether this would include the power to prohibit charges for service connections within the limits of the city, if it were considered apart from the foregoing clause of section
It follows that the railroad commission has not yet acquired the power to make regulations of this character for the government of water companies serving the inhabitants of the city of Glendale and that the order complained of is in excess of its power and for that reason invalid.
It is ordered that said order of the railroad commission be annulled.
Henshaw, J., Sloss, J., Melvin, J., and Lorigan, J., concurred.
Rehearing denied. *304