San Francisco Gas Light Co. v. Dunn

Thornton, J.:

I concur in the foregoing opinion.

McKinstry, J.:

After full consideration of the points presented at the re-argument, we see no reason to recall, or, except in a single particular, to modify the former opinion.

1. Counsel for petitioner have called our attention to the Act of February 25, 1878, “ to regulate and limit the payment of money out of the treasury of the City and County of San Francisco.” (Stats. 1877-8, p. 111.) The conclusion to which we have arrived renders it unnecessary to express any opinion as to whether the repealing clause in that act, and the omission therefrom of the proviso found in the Act of April 3,1876, do or do not operate a repeal of the proviso.

2. The only question before us relates to the power of the Board of Supervisors to allow and authorize the payment of the “ demand ” attached to the complaint herein. That the Board has the power to allow a demand for the value of gas furnished during any month, provided the allowance shall not exceed one twelfth of the sum which may be expended out of the Street Light Fund during the year, we understand to be conceded. It is said, however, that the Board had no power to allow the particular demand, because it was based upon an illegal contract. We can not assume, however, that the members of the Board, who are not parties to this proceeding, were either ignorant of the invalidity of the contract, or fixed the value by reference to the terms of a contract which they knew to be invalid. The plaintiff here can not, by averment, validate a contract which the Board were not empowered to *591make. For can the defendant, who could refuse to pass the allowed claim only in case the Board had no power to allow it, attribute to the members of the Board, by mere allegation, an improper employment of their discretion, or the adoption as a standard of value, of the prices mentioned in a void contract rather than the actual value of the gas, etc. Fo issue can be made with respect to the motives which actuated the members of the Board in the discharge of their discretionary duty. In determining the question of power, we can look only to the demand itself and to the action of the Board thereon. If, in any view, the Supervisors had the power to allow the claim presented, and did allow it, and order its payment in the manner prescribed by law, the Courts could not revise their action in a proceeding like the present—even if the Board were a party. But here neither plaintiff nor defendant represents the Board of Supervisors. The demand was presented, and the Supervisors decided that the gas had been furnished and the posts and lamps repaired as claimed. They also necessarily determined that the sum demanded was a just and reasonable compensation. They had power to allow a just and reasonable compensation, and they had no right to fix the value by reference to any other standard. But this last is an obligation of an imperfect character, addressed to the consciences of the members, and the Courts have no authority to enforce it, nor to annul the action of the Board where the record of their proceedings does not affirmatively show that they have resorted to an arbitrary standard, and have not adjudged a just and reasonable value. The Supervisors performed a task which they had power to perform, and we can not inquire (at least in this proceeding), whether in the hidden recesses of their minds were secreted influences, the product of error or corruption.

3. Counsel for respondent, in their last argument, referred to the Act of March 4, 1878, “ to regulate the quality and standard illuminating power, and the price of gas in all cities in the State of California having a population of one hundred thousand or more.” (Stats. 1877-8, p. 167.) The act was not called to our attention when the cause was first submitted. It requires the Legislature of every city of one hundred thousand or more inhabitants to fix the standard quality *592and power of gas and the rate to be charged for each thousand feet—the standard illuminating power to be not less than that of sixteen candles, and the rate to be not more than three dollars per thousand cubic feet. It further provides that no person shall furnish gas to any such city, or its inhabitants, of less power or for a greater price, under penalty of one thousand dollars.

In the former opinion we said: “ The members of the Board had the power to allow many times the value of the gas consumed if they dared to violate their official duty. They alone had the power to determine the real value—their judgment is conclusive—and it is not a function of the Courts to make a contract for them, nor to set aside a contract which they had the capacity to make.” In view of the provisions of the Act of March 4, 1878, above referred to, it is manifest that the language quoted from the former opinion must be received with the condition that the Board has no power to allow more than three dollars for every one thousand cubic feet of gas furnished.

4. It has been further urged by counsel for respondent that the “demand” should have referred to the act of the Legislature last cited. But a reading of the Act of March 4, 1878, will show that it furnishes no authority for any demand upon the treasury of the city and county.

As we said in the former opinion, the demand of the plaintiff refers to subdivisions of Section 71 of the Consolidation Act, which provide for the creation of a “ Street Light Fund,” and for the application of such fund to the "lighting of streets and the repairing of lamps and posts. The reference is distinct to the law authorizing the payment» of the demand by title, date, and section. It . is a more appropriate reference than would have been one of Section 74 of the Consolidation Act, which in general terms confers power on the Board “ to provide for lighting the streets.”

5. Further, with respect to the Act of March 4, 1878, we are asked by counsel for respondent to assume—in the absence of any evidence, and of any averment in the pleadings, to that effect—that the Supervisors violated the act by allowing more than three dollars a thousand for gas, and that the officers and agents of plaintiff have subjected themselves *593to the penalty therein provided. For aught that appears in this case, every requirement of the Act of March 4, 1878, has been fully complied with by the Board of Supervisors.

6. It was suggested by respondent that this Court should set aside the allowance of plaintiff’s demand, because the rates allowed are not “ reasonable.” In aid of this view resort was had to the proposition—supported by innumerable adjudications—“Municipal by-laws must be reasonable. Whenever they appear not to be so, the Court must, as a matter of law, declare them void.” The statement as applied to the facts of the case before us involves some confusion of thought and expression. The power of the Board of Super-. visors to pay for gas furnished comes from the statute and not from any by-law. The statute confers on the Board the power of determining what is just and reasonable compensation for gas which may be supplied; with the proviso that not more than three dollars per thousand feet shall be allowed. By-laws, or ordinances (an equivalent word), are in the nature of local laws, and the cases establish that they must be reasonable; that is to say, they must not be oppressive, nor inconsistent with the principles of the Constitution or of the common law having relation to the liberty of the citizen or the rights of private property. Even with respect to an ordinance apparently unreasonable, the Courts will not hold it to be unreasonable if the Legislature, by a constitutional law, has expressly authorized the municipality to adopt it. If the allowance of a claim can be called an ordinance at all—within the meaning of the rule as to reasonable ordinances—the Consolidation Act in terms empowers the supervisors to allow demands for various supplies, including gás, in such sums as in their judgment may be just. This Court constitutes no part of the municipal government.

The question before us is simply, Does the law confer on the Board of Supervisors the power of deciding what shall be paid for gas supplied—with the single limitation that the maximum allowed shall not exceed three dollars per thousand feet ?

If it be true, as stated by counsel, that the Supervisors have allowed or paid too much for gas (a fact of which we can not *594take judicial notice), the responsibility must rest where it belongs. The present proceeding can not be made the means of transferring to this Court the legislative duties, or the discretionary and prudential functions which are assumed by the representatives of the people in the local government.

In our opinion, the writ should issue as prayed for.

McKee and Myrick, JJ., concurred.