THE PEOPLE v. J. D. STEPHENS et al., 62 Cal. 209

Ross, J.: . The gist of the very able argument of appellant’s counsel is that, under the provisions of the present Constitution, no company or individual possesses the right to lay pipes in the streets of any incorporated city or town of the State for the purpose of supplying the inhabitants thereof with fresh water, until the Legislature has prescribed the terms and conditions under which all of this may be done. Prior to the adoption of the present Constitution, the Legislature had that power.

It could delegate to the municipal government, or itself exercise, the power of prescribing the terms and conditions upon which pipes might be laid and water furnished. The privilege lay only in grant from the Legislature, which might be, and which experience showed had been, abused. As with many others, in dealing with this subject, the framers of the Constitution of 1879, determined to, and did make many radical changes from the pre-existing condition of things.

They enacted several provisions in relation to the subject to be considered, all of which must be taken and read together, and to each of which effect must be given. Those provisions are: “Article xi.,

Section 19. * * * In any city where there are no public works owned and controlled by the municipality for supplying the same with water or artificial light, 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 of using the public streets and thoroughfares thereof, and of laying down pipes and conduits therein, and connections therewith, so far as may be necessary for introducing into and supplying such city and its inhabitants either with gas light or other illuminating light, or 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. “Article xiv.,

Section 1.

The use of all water now appropriated, or that may hereafter be appropriated, for sale, rental or distribution, is hereby declared to be a public use, and subject to the regulation and control of the State, in the manner to be prescribed by law; provided, that the rates or compensation to be collected by any person, company, or corporation in this State for the use of water supplied to any city and county, or city or town, or the inhabitants thereof, shall be fixed, annually, by the Board of Supervisors, or city and county, or City or Town Council, or other governing body of such city and county, or city or town, by ordinance or otherwise, in the manner that other ordinances or legislative Acts or resolutions are passed by such body, and shall continue in force for one year and no longer.

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 and county, or city or town, in this State, otherwise than as so established, shall forfeit the franchises and water works of such person, company or corporation, to the city and county, or city or town, where the same are collected, for the public use. “Art. xiv., Sec. 2.

The right to collect rates, or compensation, for the use of water supplied to any county, city and county, or town, or the inhabitants thereof, is a franchise, and can not be exercised except by authority of and in the manner prescribed by law.” Now, these provisions, as well as all other provisions of the Constitution, must receive a practical common-sense construction. They must be considered with reference to the prior state of the law, and with reference to the mischief intended to be remedied by the change.

If the framers of the instrument had intended to leave the entire matter where it previously rested—in the hands of the Legislature—they would have said so in appropriate language. But it is perfectly evident that there were some things in regard to the subject that they were unwilling to trust to the Legislature.

It was not with the view of “liberating the great public uses ■ of water and gas from legislative control, and making them independent of the State,” that the changes were made, but, on the contrary, it was - intended, in certain enumerated respects, to lay a stronger hand upon them than that of the Legislature—to wit, the hand of the Constitution itself. So it was, that by

Section 1 of Art. xiv., the use of all water heretofore or hereafter appropriated for sale, rental, or distribution, is expressly declared to be a public use.

It is not left to the Legislature, as formerly, to say whether it shall be a public use or not, but the Constitution itself declares it to be such, and then makes the use subject to the regulation and control of the State; that is to say, of the Legislature, in the manner to be prescribed by law, to wit, by statute law, subject however, to certain enumerated provisions contained in the Constitution itself; among them, to provisions in respect to the rates or compensation to be collected by any person, company, or corporation, for the use of water supplied to any city and county, or city or town, or the inhabitants thereof.

Such rates or compensation, the Constitution expressly declares shall be fixed in a certain specified manner, at a certain time, and by a certain body; and the body failing to do so is expressly made “subject to peremptory process to compel action, at the suit of any party interested, and liable to such further processes and penalties as the Legislature may prescribe.” But by the next

section of the same

article of the Constitution, the right to collect the rates or compensation so established is declared to be a franchise, “and can not be exercised except by authority and in the manner prescribed by law”—that is, by statute law. But, of course, the Constitution contemplated the enacting by the Legislature, where they did not exist, of all laws necessary to give effect to its commands, and that none should be passed in contravention of its provisions.

When, therefore, the Constitution fixed the manner of establishing the rates or compensation to be charged for water furnished to any city and county, or city or town, or the inhabitants thereof, and further declared that the right to collect the rates or compensation so established is a franchise, and can not be exercised except by authority of and in the manner prescribed by law, it was the duty of the Legislature, if they did not exist, to provide the needful laws.

But the failure of the Legislature to do so, if failure there was, could not prevent the establishment of the rates or compensation specifically required to be established by the Constitution. And so with respect to the privilege granted by

Section 19 of

Article xi. of the Constitution of laying pipes in the public streets and thoroughfares of any city (where there are no public works owned and controlled by the municipality), so far as may be necessary for introducing into and supplying such city and its inhabitants with gas or other illuminating light or with fresh water. That privilege is expressly granted by the

section of the Constitution cited, subject to the direction of the Superintendent of Streets or other officer in control thereof, and under such general regulation as the municipality may prescribe for damages and indemnity for damages, and upon the condition that the municipal government shall have the right to regulate the charges thereof.

The purpose of this provision was thus explained by the gentleman at whose instance it was inserted in, and became a part of the Constitution: “It gives to any individual, as well as to any incorporated company, the right to the use of the 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 streets 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. * * Then it provides that the city and county shall have the right to regulate the price to be paid by the inhabitants for the gas and for the water. This is also a necessary regulation, I think, against the abuses of monopoly.

Now, in Los Angeles we have a gas company with a monopoly for twenty years, and several parties have endeavored to get the privilege for laying down pipes in the streets for the purpose of supplying the city and competing with this company, but the company has always had sufficient influence in the municipal government to prevent this being done, and this company has a prospect of exclusive right for twenty years to come. Now, I submit to the Convention that this is a great abuse of public authority and that it ought to be. corrected.

We have, also, there, a water company that claims the monopoly, and the private individual who did succeed in laying down pipes and is to some extent supplying the city with water in opposition to the monopoly, is threatened constantly with suits and injunctions, and if this thing goes on we will have a monopoly, not only of water and gas, but of all domestic necessaries, and then we will have some company peddling it by the tin cupful. It is time this abuse was corrected, and, therefore, I offer this amendment ”—which “ amendment ” is the clause of the Constitution now under consideration. (Debates Cons.

Con., Vol. 2, p. 1075.) We have quoted at length the remarks accompanying the introduction of the provision, for the purpose of showing that the members of the Constitutional Convention had distinctly put before them the evils intended to be remedied, and the purpose of the enactment; and thus informed, they adopted it. Yet we are asked to hold, in effect, that after all, the whole matter rests where it did before—with the Legislature. This we can not do.

Nor, under our construction of the provisions in question, do we discover any indication of a return “to the doctrine of the Dartmouth College Case” nor any fostering of monopolies, but, on the contrary, the most manifest intent to prevent them as respects the important subjects treated of— gas and water.

By the adoption of those provisions the people asserted their unwillingness to leave the entire subject in the hands of the Legislature, and in the particulars already indicated, declared the rule that should govern, in the organic law itself, and gave to the Legislature the “regulation and control” in all other respects. It is also claimed on the part of the appellant that the word “city” used in

Section 19 of Art. xi., supra, does not include towns, and therefore does apply to the town of Woodland. But in this position, also, we are unable to agree with the learned counsel for appellant. As already said, all of the provisions of the Constitution above quoted must be taken and read together. Indeed, this is conceded by counsel. Now,

Section 1 of Art. xiv. provides that the rates or compensation to be collected by any person, company, or corporation in this State for the use of water supplied to any city and county, or city or town, or the inhabitants thereof, shall be fixed, etc. Is it not too plain for argument that the rates or compensation required to be fixed by this provision of the Constitution are the rates or compensation to be collected by the individual or corporation introducing water “in any city where there are no public works owned and controlled by the municipality,” as provided by

Section 19 of Art. xi?

That the provision of the Constitution requiring the rates or compensation to be fixed has no application to water furnished by a municipality itself, is conclusively shown by the concluding clause of the provision, which.is in these words: “Any person, company, or corporation, collecting water rates in any city and county, or city or town in this State, otherwise than as so established, shall forfeit the franchises and water works of such person, company, or corporation to the city and county, or city or town where the same are collected, for the public use.” It would be absurd to say that the Constitution meant to provide for the forfeiting of the water works of a city and county, or city or town to itself.

We think it clear that the rates or compensation required to be fixed by

Section 1 of

Article xiv. are the rates or compensation to be collected for water authorized to be introduced by

Section 19 of

Article xi., and that the latter

section secures to individuals and to corporations duly incorporated for such purpose under and by authority of the laws of the State, the right to introduce water into the classes of municipalities'that by

Section 19 of

Article xi. are given the right to fix the rates or compensation for its use—that is to say, cities, towns, and cities and counties. This construction brings the several sections into harmony, and gives effect to the evident purpose of the Constitution. Other points are made which need not be noticed in detail. Our conclusion is that the judgment and order ought to be affirmed, and it is so ordered. Morrison, C. J., and Myrick and Sharpstein, JJ., concurred. Thornton, McKinstry, and McKee, JJ., dissented.