Except as to a portion of plaintiff's claim, amounting to about two hundred dollars for items not falling under the head of water supplies, I concur in the opinion of Justice Angellotti upon the points therein discussed, and, except as to this comparatively trifling amount, I concur in the judgment. I concur entirely in the view that rent of fire-hydrants is to be understood as another name for water rates, and is among the things to be regulated by the ordinance fixing the annual rates to water-takers, including the municipality. With respect to water supplies, the *Page 446 provisions of the city charter regulating the mode of entering into contracts have no application. The city fixes the rates, and of necessity there can be no competition of bidders as to prices. The city also determines for itself how much water it will take, and as to that there can be no competition. As to the great bulk of the plaintiff's claim, therefore, the mode of contracting prescribed by the charter requires no consideration. But as to the small portion of plaintiff's claim for other supplies these charter provisions do control, and I am not fully persuaded that Justice Angellotti's opinion meets the objections of appellant. In Justice McFarland's opinion they are met by a reaffirmance of the doctrine of estoppel, announced in the opinion of Justice Cope in Argenti v. San Francisco, 16 Cal. 265.
That is a doctrine to which I have never subscribed, and which I had supposed was finally laid at rest in this court. I particularly object, therefore, to being quoted in approval of it. In the opinion of Justice McFarland it is said that I cited the Argenti case in support of my opinion in Higgins v. San DiegoWater Co., 118 Cal. 524. This is true; but a reference to my opinion in that case (San Diego Water Co. v. City of San Diego,118 Cal. 5561) will show that I was particular to refer, not to the opinion of Justice Cope, from which Justice McFarland makes his quotation, but to the opinion of Justice Field, who expressly dissented from the views of Justice Cope. It is true, also, that in Sacramento County v. Southern Pacific Co., 127 Cal. 217, the doctrine of estoppel, as applied to cases like this, was again asserted upon the authority of Justice Cope's opinion in Argentiv. San Francisco, from which a long quotation was made in the opinion as filed and as originally reported. (59 P. 570.) But in my dissenting opinion in that case (127 Cal. 226) I called attention to the fact that the expressions quoted from Argenti v.San Francisco, 16 Cal. 256, had never been the law even of that case; that it was but the opinion of a single judge, not concurred in by either of his associates, and deliberately renounced by him in the subsequent case of Zottman v. SanFrancisco, 20 Cal. 96.2 In consequence, I suppose, of this criticism, all reference to Argenti v. San Francisco was stricken out of the opinion in Sacramento v. Southern Pacific Co. *Page 447 when it came to be reported (127 Cal. 222), and for the same reason, when the case of Croley v. California Pacific Co.,134 Cal. 557, — a case involving a second installment, claimed under the same contract, and presenting the same questions, — came here for review, it was decided upon an entirely different ground, and the doctrine of the Argenti case never so much as alluded to, although pressed upon the attention of the court under the claim that it had become the very law of the case by virtue of the former decision.
As to what was decided in Higgins v. San Diego Water Co.,118 Cal. 524, it is clear that upon Justice Cope's doctrine of estoppel the city would have been liable on the written contract, for it had been fully complied with by the water company, and the city had enjoyed all the benefits for which it had stipulated. But we held the written contract to be invalid, because violative of the constitution and city charter, and allowed a recovery only upon the quantum valebat count upon an implied contract, which was in no wise in conflict with the constitution, and lacked conformity to the city charter only in respect to a provision designed for the protection, not of the city itself, but of prior contractors, to whose earlier and valid claims the revenues of the city had been already pledged. It was not considered that under this provision of its charter the city could resist a judgment limited in amount to the actual value of what it had received and payable only out of its unappropriated revenues. Entertaining these views, I could not concur in that portion of the judgment which in my opinion depends upon the doctrine of estoppel as stated in the Argenti case.
Besides the points discussed in the foregoing opinions of McFarland and Angellotti, JJ., there are other assignments of error involving propositions which, both on account of their importance and the earnestness with which they have been pressed in the argument, deserve a fuller consideration than they have received; but I could not make a satisfactory statement of my views upon those matters without delaying too long the decision already reached by a majority of the court, and I must content myself by saying that I concur in the conclusions of my associates upon those points.
1 62 Am. St. Rep. 261.
2 81 Am. Dec. 96, and note. *Page 448