I concur in the judgment, and generally in the opinion of Mr. Justice McFarland. But while I agree with the construction given to the act of 1885, to wit, that it only prescribes the maximum rates and does not prohibit special contracts between the suppliers and the consumers *Page 450 of water, yet, in my opinion, the power to regulate conferred and enjoined upon the legislature by sections 1 and 2 of article XIV of the constitution is plenary, and the legislature may, if it sees fit, prescribe the only rates and the only terms upon which water may be sold, rented, or distributed. The legislature may deem it desirable not only by its regulation to prevent extortionate charges, but also to prevent favoritism or unjust discrimination. Until it does so, however, I think the parties interested are free to contract.
It is matter of less consequence, but I do not concur in the view that the cases of Fresno Canal etc. Co. v. Rowell, 80 Cal. 1142, and Fresno Canal etc. Co. v. Dunbar, 80 Cal. 530, are, as authorities, entitled to much weight in this discussion. Nor do I think it a matter to excite our special wonder, if, as stated in the opinion, until within the last few years no one would have thought of doubting the right to so contract, that in suits brought some fourteen years ago neither counsel nor the court should have made such a point. But since in those cases the point was not raised and was not alluded to, it could not have been passed upon. The practice of this court is not to decide points involved on appeal unless they are actually raised. And the suggestion that such points are involved in a petition for a rehearing has not found much favor. True, the court has always claimed the right to raise points for itself when it is thought that the ends of justice demand it, but so well known is the practice that when the exception is made we are sure to get an earnest protest in a petition for a rehearing. It is a common occurrence in noticing authorities cited to observe that the point in hand is not discussed in them because not raised. The correct rule as to the value of precedents and the reason for it is stated by Chancellor Kent, in 1 Kent's Commentaries, 476, as follows: "If a decision has been made on solemn argument and mature consideration, the presumption is in favor of its correctness, and the community have a right to regard it as a just declaration or exposition of the law, and to regulate their actions and contracts by it." And the author further says that the value of precedents depends upon the number and uniformity of the decisions and the solidity *Page 451 of the reasons on which the decisions are founded, and the perspicuity and precision with which these reasons are expressed. Upon this basis the opinions cited do not possess much value.
There is in the opinion an expression utterly foreign to any matter involved here, which I fear may be deemed a suggestion of a doubt as to the validity of the provision for a forfeiture contained in section 1 of article XIV of the constitution. No one is demanding a ruling upon that matter here, and there is therefore no occasion to reserve such question, if it be a question. If it were a matter for us I should say there is grave doubt both as to the wisdom or justice of that provision, but I see no reason whatever to doubt its validity. A law prescribing a very excessive penalty sometimes secures practical immunity, and instead of securing the enforcement of the law, removes its sanction altogether.
Harrison, J., concurred in the concurring opinion.
Rehearing denied.
2 13 Am. St. Rep. 112.