I concur in the conclusion reached by McKinstry, J.
The second section of Article xiv. of the Constitution declares in plain words that “the right to collect rates or compensation for the use of water supplied to any city, city and county, or town is a franchise, and can not be exercised except by authority of and in the manner prescribed by law.”
It follows from these words that the right to collect rates or compensation for the use of water pertains to no person, company, corporation, or association, without authority of law. A law must exist vesting this right or it does not vest in any one. This is the common law, and it was inserted for some reason by the framers of the Constitution in that instrument as a part of the organic law.
*44It is urged that this right is given by the Constitution, and we are referred to the first section of Article xiv., and the nineteenth section of Article xi. I have examined those sections with great care, and I do not find in any of them any such authority conferred as to rates or compensation. Those sections only make it the duty of the local authorities to- fix rates.
As I understand the provisions referred to, they only affect this result, that where by law the franchise is conferred on an individual or company to collect rates or compensation, such rates or compensation can only be fixed by the local tribunals mentioned in those sections.
But back of all this lies the power of the Legislature to grant this right to collect and to limit it as to the persons chargeable therefor, and perhaps to say when it shall be collected, whether monthly or every three months.
I do not find any such grant in the Constitution. It does recognize the right as existing in some individuals or corporations, and makes it the duty of the Boards of Supervisors when such persons or corporations exist, to fix the rates to be charged by them. But in such cases, the right to collect exists by virtue of law, and is no more extensive than the law makes it, and the Boards of Supervisors, when they come to act, fix the rates as allowed by law. Such Board can not fix rates to be collected when the statute says the water shall be free. They merely take the statute conferring the right as defined by statute, and fix the rates to be collected of such persons as are chargeable, and when the law says no charge is to be made for water furnished, they fix no rate.
There is no statute giving the right to collect rates to any person or corporation who shall lay down pipes and bring water into a city or town. On the contrary the statute (see Act of March 7,1881, Stat. 1881, p. 54), goes no further than the Constitution. It is merely intended to carry out the provisions of the Constitution, and to enforce action on the part of the Boards of Supervisors .in executing the duty devolved on them by the Constitution.
That the construction placed on the provisions of the Constitution by the Legislature is that urged herein, appears from the sixth section of the Act of 1881, above cited.
*45“Section 6. Eates for the furnishing of water shall he equal and uniform. There shall be no discriminations made between persons, or between persons and corporations or as to the use of water for private and domestic, and public, or municipal purposes; provided, that nothing herein shall be so construed as to allow any person, company, association, or corporation, to charge any person, corporation, or association anything for water furnished them when, by any present law, such water is free.”
In this section, to show that the only object of the Act was to enforce the provisions of the Constitution in relation to the duty cast upon the Supervisors by the Constitution, they expressly declare in the proviso to the sixth section, quoted above, that nothing in this Act shall be construed as allowing a charge for water furnished, where by any law, such water is to be furnished free.
If this deduction be incorrect it is yet clear, from this section, that the Legislature did not intend to change the law as to the obligation to furnish water free of charge when so required by statute, and the whole act shows no intention to confer any franchise to collect rates or compensation for water on any individual or corporation. The Act was only intended to enforce the fixing of rates for the purposes of those who had the right to collect such rates already conferred by law.
I cannot perceive that the right to collect rates for water has been conferred on any individual, or company, or corporation, introducing water into a city or town, by the Constitution or the Legislature, when such rates are fixed by the Board of Supervisors, without any previous grant made by law to such individual or corporation to collect such rates, and therefore the Act of 1858 remains unaltered, so far as the obligation to furnish water free of charge is imposed upon a company or corporation formed under that Act.
I will add here that water is still to be furnished for municipal purposes under the Act of 1858, for which rates are to be fixed. Such purposes are plainly pointed out in the opinion of the Court in Spring Valley Water Works v. The City and County of San Francisco, 52 Cal. 122. Such are the municipal purposes referred to in the sixth section of the Act *46of 1881, and. such are the rates to be collected of a city and county, etc., under the fourteenth article of the Constitution.
In my judgment, the majority of the Court have construed the power to fix rates, vested in the local bodies, as a power in such local bodies, to confer the franchise to collect rates, ' which power is given to the Legislature by the general express grant of the legislative power, and positively declared to pertain to the last-named body by the second section of the fourteenth Article of the Constitution. So far as the question before the Court is to be considered, the Act of 1858 remains unchanged.
I am of opinion that the writ prayed for should be denied.