I concur in the judgment and in that portion of the opinion of Mr. Justice McFarland as to the inapplicability of the provisions of the Oakland charter relative to requisitions inviting sealed proposals and the awarding of the contract to the lowest bidder. These provisions of the charter cannot reasonably be construed as being intended to include the water supply of the municipality. Upon this point our constitutional provisions are a full and conclusive answer to the contention of appellant. Under section 1 of article XIV of the constitution the rates or compensation to be collected by any person, company, or corporation for the use of water supplied to the city of Oakland must be fixed annually by the city council of that municipality, and the person or corporation furnishing water is forbidden to collect water rates "otherwise than as so established." The matter of the rates to be paid is therefore entirely within the control of the municipality, at least so long as the rates fixed are not unreasonable, and could not have been intended to be a matter for competitive bidding. The object of the charter provisions is obvious. They were enacted, as was said of similar provisions inHarlem Gas Co. v. Mayor, 33 N.Y. 309, 329, "to insure economy and exclude favoritism and competition in the furnishing of labor, services, property, and materials for the uses of the city." This was the only purpose; and regardless of the question as to whether or not a municipality could, in the face of such a constitutional provision as ours, make such charter provisions applicable to the matter of a water supply, it is plain that it does not fall within the objects and purposes of those provisions, and could not have been intended to be included therein. The various items of plaintiff's claim, except a few for erecting *Page 443 and setting fire-hydrants and repairing same, no one of which amounts to fifty dollars, are for water furnished the city of Oakland for municipal purposes. An examination of the pleadings will demonstrate that the various items denominated "Rental of Fire Hydrants" are simply the charges for the maintenance of a water supply for fire purposes at the various hydrants throughout the city, doubtless at the rate fixed by the city council.
The principal question presented by this appeal is as to the effect of the proceeding instituted by respondent to enjoin the enforcement by the city of Oakland of the ordinance fixing the rates to be charged, on the ground that the same were unreasonable. At the commencement of that proceeding a temporary injunction was granted restraining the city and its council from enforcing the ordinance or the rates therein fixed or any forfeiture of respondent's franchise or works for failure to comply with said ordinance. Judgment was entered in said action after the close of the fiscal year 1900-1901, declaring said ordinance null and void, and perpetually enjoining the city council from enforcing the same. From this judgment the city of Oakland has appealed to this court, and the appeal is still pending undetermined. Appellant's contention is, that pending the final determination of that proceeding, and thereafter, in the event that the judgment be affirmed, until the adoption of the new ordinance fixing rates for the year 1900-1901, the respondent cannot collect rates at all; that it cannot collect any rates fixed by an ordinance, the enforcement of which it has caused to be enjoined, and that it can collect no rates in the absence of a valid ordinance fixing the same. It seems to me to be unnecessary to here determine what the situation would be if no rates had been fixed for the year 1900-1901. That question, in view of our constitutional provisions, is a most difficult one, and its final determination should not be embarrassed by expressions of opinion not essential to the decision of this case. Therefore, I do not wish to be understood as concurring in that portion of the opinion of Mr. Justice McFarland which intimates that in the absence of any fixing of rates, the city would be liable for the reasonable value of the water furnished, or as expressing any opinion thereon. As a matter of fact, the city council did, by ordinance, fix the rates *Page 444 to be charged for the year 1900-1901. The claims of respondent which have been allowed are in all respects in accord with the rates so fixed, except that, by way of compromise, respondent has charged the city with the water furnished during ten months of the year only, withdrawing the claim for the other two months.
The ordinance fixing the rates has not been finally determined to be invalid, and we do not know that it ever will be. Before the time for appeal in the suit brought to determine its invalidity had elapsed, the city perfected its appeal to this court, and that appeal is still pending. In view of the fact that the judgment in that proceeding has not become final, such judgment has not materially affected the situation. Nor can I see that the institution and maintenance of that proceeding by respondent, and the obtaining of the temporary injunction already referred to, estop respondent from collecting during the pendency of the proceeding the rates fixed by the ordinance. It might with as much force be contended that the city, defending against said proceeding and maintaining an appeal to this court upon the ground that the ordinance is valid, is also estopped from asserting its invalidity. The respondent had the right to present to the courts its contention that the city was, by placing the rates unreasonably low, confiscating its property, and the city had the right to resist this attack upon its action, and to show that the ordinance was valid. The mere fact that such an action has been instituted and is being maintained by a water company that considers that its legal rights have been invaded, for the purpose of obtaining a legal determination in the tribunals of the country as to the validity of the action of the city, should not be held to prevent that company from collecting during a long and protracted period of litigation, for water furnished by it, and received by consumers, at least to the extent to which it is conceded by the consumers, through the body fixing the rates, it is entitled to charge, unless such holding is absolutely essential. I know of no principle of law that requires such a ruling to be made. There is no contention in such a case that the rates so fixed are unreasonable, so far as the city or the ratepayers are concerned. As to them, it must necessarily be conceded that the water company is entitled to charge as much as the rate-fixing body has determined to be a proper rate, and so long as no higher rate *Page 445 is collected, the whole object of the constitutional provisions has been attained. Exactly what is the effect of an injunction in such a proceeding, restraining the city and its council from enforcing the ordinance or the rates therein fixed, or any forfeiture of the company's franchise for failure to comply with the ordinance, it is unnecessary to here determine. Whatever be the effect thereof, I know of no reason why it should be held to prevent the company from charging for water furnished the rates fixed by the ordinance, until it be finally determined that the ordinance is void. And, while I am very doubtful as to the right of the company pending such final determination, to collect any higher rates than those specified in the ordinance, I am of the opinion that it is entitled to collect the rates so specified.
I agree with Mr. Justice McFarland that the claims were allowed by the board of works after their rejection by the auditor. It is very clear that if the language used by the board in the preamble and resolution relative to the allowance of these claims is to be given any force at all, it simply means that the board did not desire by its allowance to prejudice any defense that might be made by the city of Oakland through the auditor. The preamble shows that the auditor's objections to the claims were that the same were "illegal and unauthorized," and that the board had learned that none of said claims is based upon any written contract, and doubts the legality and validity of said claims.
The other defenses urged were not, in my judgment, available to the auditor, who is confined to such matters as go to the jurisdiction of the board to make the expenditure.
Shaw, J., and Van Dyke, J., concurred with Angellotti, J.