Fitch v. Board of Supervisors of San Francisco

HARRISON, J.

The constitution, article XIV, section 1, after providing that the rates to be collected by any person, company, or corporation for the use of water supplied to any municipality or its inhabitants shall be fixed annually by the governing body of such municipality, provides: “Such ordinances or resolutions shall be passed in the month of February of each year, and take effect on the first day of July thereafter. Any board or body failing to pass the necessary ordinances or resolutions fixing water rates, where necessary, within such time, shall be subject to peremptory process to compel action at the suit of any party interested, and shall be liable to such further processes and penalties as the legislature may prescribe. Any person, company, or corporation collecting water rates in any city or county, or city or town, in this state, otherwise than as so established, shall forfeit-the franchises and waterworks of such person, company, or corporation to the city and county, or city or town, where the same are collected for the public use.”

Two courses of action are thus authorized to be pursued against the board of supervisors, or other governing body of the municipality, in case of its failure to pass such ordinances or resolutions as will enable any person or corporation to collect rates or compensation for the water supplied by it to the municipality, or its inhabitants therein, viz., a peremptory process to compel the board to pass the ordinances or resolutions, and a punishment for its failure to pass tiiem. The first is given by the constitution itself, and may be invoked by any “party interested” without the necessity of any legislation therefor. The “party interested,” who is thus authorized to invoke peremptory process to compel the board to pass an ordinance fixing the water rates, is a party who has an interest in having the rates fixed, and who would be injuriously affected if they were not fixed. The provision that “the rates or compensation to be collected shall be fixed annually” and “shall continue in force for one year, and no longer,” read in connection with the concluding sentence of the section, by which a company which shall collect water rates “otherwise than as so established” shall forfeit its franchises and waterworks for the public use, make it evident that the furnisher of water would be injuriously affected if the rates are not fixed, and is therefore a “party interested” who is entitled to such peremptory process.

The provision that the ordinance fixing the rates shall not take effect until July, although it is to be passed in February, is manifestly for the purpose of affording to the person or company supplying water ample time to adjust the individual rates for its consumers in accordance with the terms of the schedule fixed by the ordinance, and also to provide an opportunity, if necessary, in case the ordinance shall not be passed in February, to invoke process for compelling the board to pass an ordinance prior to July. The failure of the board to pass an ordinance in the month of February is by the terms of the section made a condition precedent to the right to ask for process to compel action by it, since it cannot be determined until after February has expired whether there will be a failure to pass the ordinance “within such time”; and, inasmuch as the right to process for the purpose of compelling action by the board cannot be invoked until after February, it must follow that an ordinance fixing rates, which is passed subsequent to February, is as valid as if it were passed in February, and that the rates fixed by such ordinance may be collected from the consumer, since the constitution would not authorize the issuance of process to compel action by the board if its action under such process would be vain and nugatory. Hence, an ordinance passed subsequent to February, without such process, is equally valid as if passed under its mandate.

The provision in the section which renders the board “liable to such further processes and penalties as the legislature may prescribe,” in case of its failure to pass the ordinances within the month of February, clearly indicates not only that in the absence of legislation the board will not be liable to any penalty therefor, but also that it will be liable to only such processes and penalties as are within the power of the legislature to prescribe1.

In pursuance of this provision of the constitution the legislature passed the act of March 7,1881. (Stats. 1881, p. 54.) But, yhile the authority to prescribe a penalty for the failure of the board is referable to this section, the extent of the penalty and the proceedings for its enforcement must be in conformity with the legislative power elsewhere conferred by the constitution.

Section 8 of this act is as follows: “Any board of supervisors or other legislative body of any city and county, city or town, which shall fail or refuse to perform any of the duties prescribed by this act, at the time and in the manner herein specified, shall be deemed guilty of malfeasance in office, and upon conviction thereof at the suit of any interested party, in any court of competent jurisdiction, shall be removed from office.”

To the extent that this section authorizes the penalty to be imposed “at the suit of any interested party,” it is not within the provision of the above section of the constitution, unless it should be held that the provision for the penalty is a part of the process authorized to compel action by the board; but after an ordinance has been passed there is no occasion for invoking any process to compel action. The evident purpose of the section is to provide a penalty by way of punishment for the delinquency of the board. The term in which the delinquency is defined— “malfeasance in office”-—and the declaration that “upon conviction” of the delinquency the board shall be deemed “guilty,” and the penalty provided, “removal from office”—all point to an offense which has been completed, and are conclusive reasons for holding that the purpose of the section was not to compel action by the board, but to punish it for its failure to act. The provision in the section that the penalty may be imposed “at the suit of any interested party” is, however, inconsistent with section 20 of article VI of the constitution, which is: “The style of all process shall be ‘The people of the state of California,’ and all prosecutions shall be conducted in their name and by their authority.” In whatever terms the failure of the board to pass the ordinance in February may be characterized, such failure, aside from the rights of a party who may compel action by the board, is an offense against the entire state, and not against any individual, and, under the above provision of the constitution, the legislature has not the power to authorize a prosecution for such offense in the name of and at the instance of any individual.

Moreover, irrespective of these considerations, the plaintiff herein is in no respect an “interested party” at whose instance the penalty may be imposed. He alleges in his complaint as the basis of his right to maintain the action, “that said plaintiff is a citizen of the United States and of the state of California, and is and for many years last past has been a resident taxpayer, householder, and freeholder within the said city and county, and a user and consumer of water sold, distributed, and supplied by the Spring Valley Water Works, a corporation, as hereinafter set forth, to said city and county and the inhabitants thereof, and therefore is interested in the rates or compensation collected and to be collected by said corporation for the use of water so supplied and to be supplied to said city and county of San Francisco and the inhabitants thereof.” If it be assumed from the allegation that he is a user and consumer of water, that he is also a ratepayer, it does not follow that he has any interest which authorizes a prosecution of the board for its alleged offense. It cannot be said that one citizen of the state or of the city more than another is interested in having a penalty inflicted for delinquency in official duty, and the use of the term “party interested,” rather than “person” in the above section of the statute, indicates that the legislature intended the “suit” to be instituted by one who had some personal and individual interest in the subject matter, and who had been injuriously affected by the failure to pass the ordinances. It is shown by the record herein that on the 2d of June, 1897, the board of supervisors did pass an ordinance fixing the rates to be collected during the year commencing on the 1st of July succeeding, and, as the present action was not commenced until the 15th of July, the plaintiff was not at that time a “party” in any respect interested by reason of the failure of the board to fix the rates in February. We have seen that an ordinance fixing rates which is not passed until after February is as valid for the purpose of determining the rates to be collected as though passed in the month of February, and that the ratepayer is not interested in the time at which the ordinance is passed, provided there is at all times a legal ordinance under which he can know whether the amount demanded for the water supplied to him is correct. Prior to July 1, 1897, the rates to be paid by the plaintiff for the water supplied to him were fixed by the ordinance that had been passed in the previous year, and on and after July 1st they were fixed and capable of ascertainment by the ordinance passed on the 2d of June. It is not claimed that this ordinance is in any respect illegal, defective, or unjust, and, as the plaintiff was not, therefore, in any respect injuriously affected by the failure of the board to pass the ordinance in February, he was not an interested party within the meaning of the statute, and had no authority to institute the present proceeding. The court, therefore, when these facts were brought to its attention, should have dismissed the proceeding.

The judgment and order denying a i "' trial are reversed, and the superior court is directed to enter nrder dismissing the proceeding.

Van Fleet, J., Beatty, C. J., Henshaw, J., Temple, J., and McFarland, J., concurred.