Spring Valley Water Works v. Board of Supervisors

Sharpstein, J., concurring:

The provisions of our State Constitution, which imposes upon the Board of Supervisors the duty of fixing the rates to be paid for water supplied to the City and County of San Francisco, as well as to the inhabitants thereof, must be obeyed, unless it contravenes that clause of the Constitution of the United States, which prohibits a State from passing any law impairing the obligation of contracts. The petitioner was incorporated under a general law providing for the incorporation of water companies, approved April 22, 1858. (San Francisco v. S. V. W. W. 48 Cal. 493; S. V. W. W. v. San Francisco, 52 id. 111.)

The law under which it incorporated is its charter, and to that extent it is protected as by a contract. (Chicago etc., R. R. Co. v. Iowa, 94 U. S. 155.) But it is a contract between the State and the petitioner exclusively. The City and County of San Francisco is in no sense a party to it. And the State, by the adoption of the present State Constitution, has declared “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 or Town Council, or other governing body of such city and county, or city or town, by ordinance or otherwise, in the manner that other ordinances or legisla*31tive acts or resolutions are passed by such body, and shall continue in force one year and no longer.”

That indicates with sufficient clearness, to my mind, an intention on the part of the State to alter the law which provided that the rates to be collected for water supplied for other purposes than extinguishing fires, flushing sewers, sprinkling streets and watering parks, should be fixed by a Board of Commissioners composed of four persons—two of whom should be selected by the city and county and two by the petitioner. And that in case of fire or other great necessity, it should be furnished free of charge. And the petitioner acquiesces in the change, (1) by requesting the respondents to comply with the constitutional provision; (2) by asking this Court to enforce a compliance with it.

But I attach little or no importance to such acquiescence. In my opinion the State had the right to alter or repeal the law under which the petitioner became incorporated without its acquiescence. I think so because the right to do so was expressly reserved by the Constitution. And I concurred in the opinion of Mr. Justice McKee in S. V. W. W. v. Supervisors (7 Pac. C. L. J., 614), in which he said: “But the company obtained its charter under a section of the Constitution of 1849, which authorized the formation of corporations under general laws, and reserved to the State the power of altering such laws from time to time or repealing them. An a part of the organic law of the State, this provision entered into the contract between the company and the State, and when the corporation accepted the charter of the company, under the general law of 1858, they consented to take it subject to the exercise of the reserved powers of the State.”

In speaking of a similar clause in the Constitution of Wisconsin, the Supreme Court of the United States said: “In Wisconsin, all corporations are liable to have their charters altered or repealed at the will of the Legislature.” (Peik v. Chicago etc. Railway Co., 94 U. S. 164.)

I have said that while the charter granted by the State to the petitioner constituted a contract, the City and County of San Francisco was in no sense a party to it. But whether it was or not, could make no difference, because the Legislature could not by inserting the clause which provides that water *32shall he furnished to said city and county for certain purposes free, deprive the State of the power to alter o*r repeal the law under which the petitioner became incorporated. The Constitution could not be evaded in that way. That part of the law was subject to alteration or repeal the same as any other part. It was not excepted or protected by the Constitution any more than any other provision of the law. It was subject to such alteration or repeal because the Constitution in force when the law was enacted declared that it should be subject to alteration or repeal. In Chicago eta. R. R. Co. v. Iowa, supra, “ the company had pledged its income as security for the payment of the debts incurred, and had leased its road to a tenant that relied upon the earnings for the means of paying the. agreed rent,” and it was claimed that that con-' stituted a contract which would be impaired by the alteration which the Legislature had made in the law under which the company incorporated. To that the Court replied : “ The company could not grant or pledge more than it had to give. After the pledge and after the lease the property remained within the jurisdiction of the State, and continued subject to the same governmental powers that existed before.”

And it seems to me to be equally clear that in this case neither the Legislature nor the petitioner could make any contract which could interfere with the right which the State had reserved to itself of altering or repealing the law under which the petitioner became incorporated.

It is urged, however, that, if it be conceded that the people of the State, either by legislative enactment, or by the adoption of a Constitution containing a provision inconsistent with that clause of the Act for the incorporation of water companies which requires them to furnish water free of charge for the extinguishment of fires, etc., might alter or repeal that clause, that it has not been altered or repealed, because it is not inconsistent with the Constitution, and must therefore “ remain in full force and effect until altered or repealed by the Legislature.” (Const. Art. xxii., Sec. 1.) In other words it is claimed that the evident intention of the framers of the Constitution was to substitute the Board of Supervisors for the Board of Commissioners, provided for by the law as it stood before the adoption of the Constitution, and to confer *33upon the Board of Supervisors the same powers that had been previously conferred upon the Board of Commissioners, and none other, in respect of the fixing of rates to be paid for water supplied to private consumers and to the city and county of San Francisco.

If there is nothing in the Constitution which is inconsistent with the law in force at the time of the adoption of the Constitution, such law has not been affected by the adoption of the Constitution. So that the only question to be determined is whether the law in relation to the furnishing of water free of charge for certain specified purposes, is inconsistent with the clause of the Constitution which provides that the Board of Supervisors shall fix the rates to be collected for the use of water supplied to said city and county. If the law in relation to furnishing water for certain purposes free of charge be not inconsistent with any provision of the Constitution, it follows that if there were no such law the Legislature might now enact one, because any law which is not inconsistent with any provision of the Constitution is equally valid whether enacted before or after the adoption of that instrument.

And is it not quite clear that the Legislature could not now pass a law affecting the rates to be collected for water to be supplied to the city and county of San Francisco which would be valid ? Has not the Constitution withdrawn that subject wholly from the jurisdiction of the Legislature ? It seems to me that it has. And I do not think that under the authority to fix the rates to be paid for water supplied to said city city and county the Board of Supervisors would have the power to say that water should be furnished free of charge for any purpose. If for any purpose, why not for all purposes ? Water must be supplied at the rates fixed by the Board of Supervisors. But there is no provision in the Constitution which requires that it shall otherwise be supplied ; and if there had never been a law which provided that it should be supplied for certain purposes free of charge, I do not think that any one would now claim that there was any power in the Board of Supervisors, or in the Legislature, to compel the petitioner to furnish any water to the city and county for any purpose free of charge. And if not, it does seem to me *34that the law which requires that it shall be supplied for some purposes free of charge is inconsistent with the Constitution, and therefore abrogated by it.

The requirement that rates to be collected for water supplied to the city and county of San Francisco, shall be fixed by the Board of Supervisors is, in my judgment, wholly inconsistent with the theory that such rates are to be fixed for only a part of the water supplied to said city and county. As well might it be contended that rates were to be fixed for only a part of that supplied to private consumers. The plain import of the language of the Constitution is that rates to be collected for all water supplied to said city and county and to the inhabitants thereof shall be fixed by the Board of Supervisors ; and any law which provides that rates shall be fixed for only a part of the water supplied to said city and county is, in my opinion, inconsistent with the Constitution.

I am unable to perceive that the City and County could in any event be at all embarrassed in the case of fire, as it would then have the right, under the police power, to use all the water necessary to extinguish it, whether rates had or had not been fixed.

I concur in the judgment that the writ issue as prayed.