Mesmer v. Board of Public Service Commissioners

JAMES, J.

A demurrer interposed to the amended complaint of plaintiff was sustained, and this appeal was taken from the judgment of dismissal which followed.

By the provisions of a freeholders’ charter of the city of Los Angeles, adopted in 1903, there was created a water department which was provided to be placed under the control of a board consisting of five members. In March, 1911, an amendment to the charter was regularly adopted, by which amendment a department of public service was provided for, which department, in addition to being given charge of the water service, was given control and management also of such electric works and electric systems as might thereafter be acquired. The board of public service commissioners created under the latter amendment became the successors of the board of water commissioners first referred to. Plaintiff’s complaint set out that the last named board, on the eighth day of November, 1909, for the purpose of acquiring property upon which to erect a building for the uses of its department, contracted to purchase a lot in the city of Los Angeles for the sum of one hundred and ninety-five thousand dollars, payable five thousand dollars in cash, the balance to be represented by two mortgages, one for the sum of seventy thousand dollars, and one for the sum of one hundred and twenty thousand dollars. It was further set out that out of the income and revenue arising from the water department, at the time of bringing the action, a total of one hundred and fifteen thousand dollars besides certain installments of interest, had been paid on account of the purchase price of the lot, and.

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that excavation had been made thereon to accommodate a foundation for the proposed building. Further, that the moneys contracted so to be paid exceeded the income and revenues of the water department for the year mentioned, and that the board threatened to execute a contract which would provide for the erection and completion of the proposed building. An injunction was prayed for, that defendants be enjoined from making any further payments on account of the purchase price of the lot, and from entering into a contract for the erection of the building.

It is appellant’s contention that the charter provisions which gave to the board of water commissioners and its successor, the board of public service commissioners, control of the revenues derived from the sale of water are unconstitutional as violative of section 13 of article XI of the constitution, which provides as follows: ‘ The legislature shall not delegate to any special commission, private corporation, company, association, or individual, any power to make, control, appropriate, supervise, or in any way interfere with, any county, city, town, or municipal improvement, money, property, or effects, whether held in trust or otherwise, or to levy taxes or assessments, or perform any municipal functions whatever.” The provisions of this section are restrictive of the general law-making power of the legislature. If it could be said that a freeholders’ charter adopted by a vote of the people of a city under the express sanction of the constitution, is to be viewed as an enactment of the legislature, then there might be force in the point made. As a test of that matter it may •be here inquired: What power has the legislature to mould or change a freeholders’ charter when such an instrument is before it for consideration? The answer is that it has no such power. It is required that a freeholders’ charter to become effective must be approved by the legislature; this approval is made by resolution and not by bill. It has been held that the legislature does not exercise law-making power when it approves such charters.