City of San Francisco v. Spring Valley Water Works

Rhodes, J., dissenting:

The proposition that section thirty-one, of Article IY, of the Constitution, prohibits the passage of special Acts granting corporate powers to corporations, other than those created for municipal purposes; that this inhibition extends as well to a special Act conferring a particular corporate power, as to an Act providing for the entire organization of a particular corporation—is, in my judgment, fully sustained by the opinion of Mr. Justice Crockett; but, while concurring generally in his argument, I am of the opinion that the record does not present the question. There may be, and in my opinion there are, provisions in the Ensign Act, which are obnoxious to the constitutional objection just mentioned—such as the provision for fixing higher rates than other corporations are, by the general Act, allowed to charge—but they do not affect the other provisions of the Act. The Act grants to Ensign, his associates and assigns, the right to lay down water-pipes, etc., in the streets of the city, upon certain terms and conditions. Is' this a grant of corporate power? In my opinion, it is not. Time will not permit me to enter into an elaborate discussion of this question; and, indeed, I think it unnecessary, for the question seems to lie in a narrow compass. A private person cannot grant to a corporation corporate power, but he may grant to it property, or rights in property, necessary or proper for the use of the corporation, unless it be forbidden by positive law or necessary implication, from taking such property .or rights in property; and it is not a grant of corporate power. And such a grant may be on such terms and conditions as the parties may agree tq, provided they are not in contravention of law. For instance, a lot-owner in the city might grant to the corporation, when authorized, as contemplated by the Ensign Act, the right to lay down water-pipes over his lot, in consideration of the payment of a sum of money, or. the supply of a certain amount of water, or of all the water he might need for a certain purpose. The State might make the same grant in respect to land held by it, and on a like *534consideration. The State, to the extent of its control over the highways and streets within the State, may make grants of the like character. Such grants, whether made by private persons or the city, or the State, are not grants of corporate power, but are mere easements.

The State may, in my opinion, grant to a corporation any property which a private person might, if he was its owner; the grant may be made on the same terms and conditions that a private person might exact. In respect to grants of that character, the constitutional provision in question does not impose greater limitations upon the power of the State, than upon that of a private person. I do not understand that a grant, whether by a private person, or the city, or the State, to a street railroad company, of a right to extend the track of its road, whether with or without exacting conditions, or a consideration, is in violation of the provision of the Constitution in question. Our statute books are full of Acts making grants of that character. The acts granting the right of way to street railroad companies over certain streets, are familiar, instances; also the acts granting to certain railroad companies subsidies, lands, and the right of way over certain streets in cities therein named; and grants of subsidies to certain telegraph companies, and .many other grants that might be mentioned. In any of those eases, a private person owning the thing granted, might have made the grant, and have annexed conditions of the same character as those mentioned in the acts referred to; and whether made by the State or private persons, the grants would not confer corporate power. In this case the right granted is a right of way—a mere easement—an interest in land (Appeal of N. B. & M. R. R. Co., 32 Cal. 505), and in my opinion, it is very clear, that the grant is not prohibited by the Constitution; that the Legislature had competent power to annex to the grant the conditions mentioned in the third section of the Ensign Act, and that they are valid and binding on Ensign, his associates and assigns.

If it be held, as is suggested, that the legislative grant of the easement to Ensign, his associates and as*535signs, was void, because the right to acquire the same easement had been granted by the general law, and that the terms and conditions upon which the grant was made fail because the grant fails, then clearly the constitutional question in respect to the grant of corporate power does not arise in the case. But I do not understand that the grant in this case is void, for the reason suggested; and not being void, the Legislature had competent authority to prescribe any terms and conditions which were not prohibited by paramount law.

If the Legislature has the power, on making the grant of an easement to impose terms or conditions, they cannot, in my opinion, be held to be repuguant to the constitutional provision in question, on the ground that they are more onerous than those prescribed by the general law. The principal power granted to water companies is the power to collect rates for the supply of water. The condition here, to supply the municipality with water for certain purposes, certainly does not enlarge that power, nor, in my opinion, does it in any manner touch or relate to any power granted to such corporations. The right attempted to be granted, to collect higher rates than those which may be fixed for other corporations, is, in my opinion, severable from the other terms and conditions; and they are not void because it is void.