The Spring Valley Water Company was organized under an Act of the Legislature of the State, approved April 26, 1858. The object of its organization was to supply the City and County of San Francisco and its inhabitants with pure, fresh water. For that purpose the State delegated to it the right tp exercise the power of eminent domain for the acquisition of property necessary to its use, and to use the streets, ways, alleys, and highways in the city and county for conducting water into and through the city to any part of it. In consideration of the delegation of those rights, the company bound itself to furnish water, to the extent of its means, to the city and county, in case of fire or other great necessity, free of charge, and to all its inhabitants on demand, for family use, so long as the supply lasted, at rates to be fixed according to law. The agreement to do these things was a contract between the corporation and the State, upon the performance of which the company entered and it has been since, presumptively at least, engaged in its performance according to law. At all events it has had the protection of the law in the control and management of the property which it has devoted to the use of the public; and that use has been subject only to the regulation of the price which the company is entitled to collect from individual consumers.
This power to regulate the use of property dedicated to a public use is, as we have heretofore held in S. V. W. W. v. Supervisors, 7 Pac. C. L. J., 614, governmental, not contract*47ual. It is a power which the State could not, if it would, delegate or barter away to any person natural or artificial. And in the Constitution of the State this doctrine has been emphasized; for Section 1, Art. xiv., of the Constitution declares, “ That the use of all water now appropriated for sale, rental, or distribution, is hereby declared to be a public use, subject to the-regulation and control of the State, in the manner to be provided by law;” and Section 2, Art. xiv., prohibits “all water corporations from exercising the right to collect compensation, except by authority of and in the manner prescribed by law.”
Bo complaint is made of any infringement of the rights accorded to the company by the Act of 1858, under which the corporation was organized; but it claims in this proceeding that the new Constitution has granted to it additional rights, and, at the same time, absolved and released it from the duty by which it bound itself to furnish the city and county with free water for the extinguishment of fires or other great necessities; and that since the adoption of the Constitution it is now only bound to furnish water to the city and county at the same rates that it furnished it to other consumers. This claim of the company is founded upon Section 19, Art. xi. of the Constitution, and Section 3 of the Act of 1858.
The latter provides that: “All privileges, immunities and franchises that may be hereafter granted to any individual or individuals, or to any corporation or corporations, relating to the introduction of fresh water into the City and County of San Francisco, or in any city or town in this State, for the use of the inhabitants thereof, are hereby granted to all companies incorporated or that may hereafter become incorporated, for the purpose aforesaid.” And the former declares that, “ In any city where there are no public works owned and controlled by the municipality, for supplying the same with water, * * * * any individual or any company duly, incorporated for such purpose under and by authority of the laws of this State, shall, under the direction of the Superintendent of Streets or other officer in control thereof, and under such general regulations as the municipality may prescribe for damages and indemnity for damages, have the privilege *48of using the public streets and thoroughfares thereof, and of laying down pipes or conduits therein and making connections therewith, so far as may be necessary for introducing and supplying such city and its inhabitants * * * * with fresh water for domestic and all other purposes, upon the condition that the municipal government shall have the right to regulate the charges thereof.”
Belying on the third section of the Act of 1858, the company asks this Court for such construction of that section and of the foregoing section of the Constitution as will stretch the former so that it may cover the latter and give- to the corporation the immunities, privileges and franchises grant-able under the latter. In my judgment the third section of the Act of 1858 can not he stretched to that extent, and does not entitle the corporation to any other rights than those which it enjoys under its charter. The section contains a stipulation that the Spring Valley Water Company shall be entitled to all the immunities, privileges and franchises which may be granted to any person or corporation, "relating to the introduction of fresh water into any city or town in the State, for the use of the inhabitants thereof.” Such are the terms of the stipulation, but they do not cover the terms of the constitutional provision relating to the introduction of water into a city “ for the purpose of supplying such city and its inhabitants with fresh water for domestic and all other purposes.” A contract to furnish water to a city for certain exigencies is not a contract to furnish water to the city and its inhabitants for all purposes. The greater includes the less; but the less does not include the greater; nor does it entitle a claimant under it to what may be included in the greater. A corporation is no more entitled than a natural person to that which is not nominated in its bond. The only rights it can claim under its contract are those specifically included within its terms; and any ambiguity or doubt arising out of those terms must be resolved in favor of the public. Both the Act of 1858 and Section 19 of Article xi. of the Constitution must therefore be strictly, construed, so far as the rights of the public are affected. Now, while it is true that there is no intimation of free water in the Constitution, it does not follow that the State intended to annul the Act of 1858, or to enlarge Section *493 of that Act so as to make it cover things which are not expressed by its terms, nor to release the Spring Valley Water Company from any of its obligations. Certainly none of these things can be presumed. To presume the latter would be to subject the framers of the Constitution to the imputation of legislating so as to impair the obligation of the contract between the corporation and the people. Such a construction would defeat one of the objects, i. e., to obtain a supply of water for the City and County of San Francisco, free of charge, for certain exigencies. Whatever defeats the object of a contract violates its obligation. Any legislation which makes a contract more beneficial to one party and less to the other, than it purports by its terms to be, impairs the contract. To presume the latter would be to strike dead the corporation and strip it of its franchise and privileges.
The framers of the Constitution, therefore, never intended to sweep away the legislation under which the corporation was organized, nor to deprive it of its rights nor to release it from any of its obligations. For the Constitution has not conferred upon any person, natural or artificial, privileges, immunities and franchises in relation to the introduction of fresh water into any city in the State “for the use of its inhabitants” which have not been conferred on the Spring Valley Water Corporation by its own charter. The company has exercised and enjoys the privilege of using the public streets and thoroughfares and of laying down pipes and conduits in them and of making connections with them in any part of the city. It has exercised and continues to exercise the right to collect rates or compensation for the water which it furnishes for family use and domestic purposes to the inhabitants of the city and comity. What other or greater rights does the Constitution confer upon any other person that may, under the provision of the Constitution, undertake to supply fresh water to the inhabitants of any city in the State? Hone. Having these, there is nothing more which the Company has a legal right to demand. The obligation of the corporation to furnish water free to the city for the purposes specified in its contract is a thing distinct in itself from its obligation to furnish water to the inhabitants of the city. And the stipu*50lation of the State contained in the third Section of the Act of 1858 relates altogether to the latter and not to the former.
For these reasons I am led to dissent from the prevailing opinion.
Ross, J., (upon denying petition for re-hearing):
In voting to deny the petition for re-hearing in this cause, which I do, I wish to say that before so voting I have carefully reconsidered the question involved in it. When it was determined here by the opinion of a majority of the Court filed June 6, 1881, in the case entitled Spring Valley Water Works v. Board of Supervisors of San Francisco, No. 7,629 (7 Pac. C. L. Jour., 614), that the provisions of the new Constitution in relation to water were applicable to the Spring Valley Company, I distinctly stated in an opinion in which I dissented from the views of the majority, that, in my opinion, the effect of the conclusion then reached by the Court would be to relieve the company of the obligation to furnish the City and County of San Francisco with water for any purpose free of charge.
When the question was presented in the subsequent case entitled San Francisco Pioneer Woolen Factory v. Brickwedel, No: 8,252, the opinion in which was filed March 10,1882, and is reported in 9 Pacific Coast Law Journal, p. 136, I distinctly stated that under the judgment of the Court in the former case, holding that the provisions of the present Constitution are applicable to the company in question, the company had, in my opinion, become relieved of the obligation to furnish the city with any water free of charge. On the first consideration of the present case I held the same view. I could not then, and can not now, read the provisions of the Constitution in any other way. If those provisions apply to this company at all, they apply to it fully. They can not be r$ad one way for the Spring Valley Water Company and another way for another company or for an individual. They mean the same thing for every person, natural or artificial, to which they apply. If I could place the same interpretation on Section 19 of Article xi. and Sections 1 and 2 of Article xiv. of the Constitution, that Mr. Justice McKinstry does, in his dissenting opinion in this case, and hold that it is compe*51tent for 'the Legislature, under the Constitution, to impose upon any new corporation or person wishing to introduce water into the city, the furnishing of water to the city and county free of charge, I would agree with him in his conclusion in the present case. But I can not so read the provisions of the Constitution. I understand Section 19 of Article xi. to clothe all corporations and persons to which it applies, with the privilege (under the direction of the Superintendent of Streets and subject to municipal regulations in relation to damages) of introducing and supplying the City and County of San Francisco and its inhabitants with fresh water for domestic and all other purposes (with certain exceptions in regard to damages) upon the sole condition that the municipal government shall have the right to regulate the charges thereof.
' It is not competent, I think, for the Legislature to add to the terms here imposed. Subject-to the restrictions provided for in the Constitution, any person or corporation may lay pipes in the streets for the purpose of supplying the city and county and its inhabitants with water, and the Legislature has no right to require any such person or corporation to furnish the city and county with any water free of charge. And I find upon an examination of the debates in the Constitutional Convention, that that was the expressly declared intention of the distinguished lawyer—Hon. Volney E. Howard—at whose instance the clause in question was inserted in the Constitution. Previous to the adoption of this clause, there had been offered for insertion in the Constitution the following: “In any city where there are no public works owned and controlled by the municipality for supplying the same with artificial light and water, any company duly incorporated by the laws of this Staté shall, under the direction of the Superintendent of Streets of said city, have the privilege of disturbing and using the public streets and thoroughfares thereof, and of laying down pipes and conduits therein, and of making connection therewith, so far as may be necessary for introducing into and supplying such city and its inhabitants either with gaslight or other illuminating light, or with fresh water, for domestic and all other purposes, for which the same or either may be used, upon the conditions following: *52such company shall make good all damages to such streets and thoroughfares, except necessarily occasioned by the reasonable use thereof, and be liable to such city and its inhabitants therefor. Such company introducing and supplying gaslight, or other light, and fresh water, or either, shall furnish the same, so far as necessary and required, free and without charge, to all public buildings, institutions, and school houses belonging to such city, and used for municipal purposes; and such company introducing and supplying water shall also furnish the same free and without charge to the Fire Department, and for the extinguishment of fires. Each company, its property and franchise, shall be liable to such city and its inhabitants for the performance of these conditions. (Vol. 2 of the Proceedings of the Constitutional Convention, page 1,072.)
After much debate this section was stricken out, and on motion of Mr. Howard, the clause of Section 19. of Article xi. of the Constitution was adopted.
The introduction of this clause was accompanied by the following remarks of Judge Howard, page 1,075: “This is a different proposition altogether from the one struck out. My provision steers clear of confining this privilege to corporations or incorporated companies. It gives to any . individual, as well as to any incorporated company, the right to the use of streets for laying down pipes for the supply of gas and water or either. I think that the objection that was taken to the section as formerly introduced was well taken—that it should not be limited to corporations; that any individual, for the public good, should have the right to use the street for laying down pipes for supplying water or gas. It is in the public interest that it should be conceded, and it prevents monopoly in any sense. It also provides that the city authorities may make a regulation in relation to damages and indemnity; that is, that they may make a regulation requiring all work to be done under the supervision of the Superintendent of Streets, and also, if any damage should be likely to occur, they may, by security or otherwise, guard against it. I leave out also the provision which required the company to supply the city and the school houses, and other public build*53ings with gas or water free of charge, because I think that an unjust burden.”
The provision introduced by Judge Howard, and thus explained by him, was adopted, and forms part of Section 19 of Article xi. of the Constitution. In my opinion, it bears the construction intended by him and none other.
There was therefore, no such thing as “free water” contemplated in or by Section 19 of Article xi., but, on the contrary, it was intended that every corporation and person subject to its provisions, should be paid for all water furnished at rates to be regulated by the municipal government. Section 1 of Article xiv. follows and declares that the rates or compensation to be collected for water so supplied, shall be fixed annually by the Board of Supervisors, by ordinance, which shall continue in force for one year and no longer.
Applying these provisions to the Spring Valley Water Works, as must be done under the decision of this Court in the case to which allusion was first made herein, I see now, as I saw then, no escape from the conclusion that the company is entitled to be paid for all water furnished by it to the City and County of San Francisco.