People v. Palermo Land and Water Co.

By an information filed by the district attorney in the superior court of Butte county, appellant was accused of the crime of "failing and refusing to sell and deliver water for the purpose of irrigating the orchard of William Hilemon." A motion was made to set aside the information on the ground "that before the filing thereof the defendant had not been legally committed by a magistrate." The motion was denied.

A demurrer to the information was also interposed, setting forth: "1. That the court has no jurisdiction of the offense charged therein; 2. That it does not substantially conform to the requirements of sections 951 and 952 of the Penal Code; 3. That the facts stated do not constitute a public offense." The demurrer was overruled. Appellant was tried by a jury and convicted and was sentenced by the court to pay a fine of one hundred dollars. The appeal is from the judgment and an order denying the motion for a new trial.

The charging part of the information is as follows: "The Palermo Land and Water Company, being at all times herein mentioned a corporation, duly organized and existing under the laws of the State of California, for the purpose of selling, distributing and renting water, and having water to sell, rent and distribute, did, on or about the first day of July, 1905, at Butte County, State of California, and before the *Page 719 filing of this information, wrongfully, unlawfully, willfully and maliciously refuse and fail to sell and deliver six inches of water to said William Hilemon for irrigating his orchard, after being tendered seventy-five cents payment in advance for one day's supply thereof, the said corporation having then and there water to sell, contrary to and in violation of the provisions of Ordinance No. 211, passed by the Board of Supervisors of Butte County, State of California, February 27, 1905, the orchard of the said William Hilemon being then and there within the limits of the unincorporated town of Oroville, in Butte County, State of California, and not within the limits of any incorporated town, city or village, contrary to the form, force and effect," etc.

Ordinance 211, upon which the prosecution was based, among other things provides:

"Section 1. The rate or compensation to be collected by any person, company or corporation in the County of Butte for the use of water supplied to any unincorporated city or town, or the inhabitants thereof, is hereby fixed and established as follows: . . .

"29. For water used for irrigation or mining ditches, for irrigation of vineyards, orchards and similar uses, the rate shall not exceed 10 cents per inch, miner's measure, for day of twenty-four hours. . . .