Berger v. Justice

[533]

GRAY, P. J.

This action is brought to obtain a writ of mandate directing the board of supervisors of the county of San Diego to act upon the merits of a petition asking said board to fix a rate for the use of water for irrigation, in addition to that established by a former ordinance of the board, adopted November 16, 1897, and already in force; the proceeds of the additional rate to be used only in the repayment of the cost of the necessary replacement by new pipe of worn-out pipe in the water system of the Sweetwater Water Company, a corporation, which had devoted its system to the sale and distribution of water. The court below sustained a demurrer to the petition for the writ of mandate, and the plaintiffs in said petition appeal from the judgment which followed.

It appears from the petition that the plaintiffs herein are inhabitants and taxpayers of said county and are consumers of water for irrigation under said system, and are owners of irrigation easements thereunder annexed to the land owned by them; that the Sweetwater Water Company, a corporation, is engaged in the business of collecting and impounding the water to be distributed and holds the title to the water system. The petition to the board of supervisors was made by the corporation and by some twenty-five persons who describe themselves as irrigators in said county under the said system. Upon the hearing of the petition the board refused and declined to act upon the same, and embodied their action in the following resolution entered upon their record c i!On motion of Supervisor Griffin, seconded by Supervisor Justice, it is ordered that the petition in this matter be denied without prejudice, on the ground that the petition asks for replacement of old worn-out pipe with new pipe, it appearing that such replacement constitutes reconstruction for which the law makes no provision.”

While the foregoing order may be said to be, in one sense, a refusal to act, yet it is equally true that the effect of it was to fix the former water rate as the established, continuing rate for which water should in the future be furnished; and in this sense it was an affirmative exercise of the jurisdiction of the board of supervisors under the statute, and not a mere refusal to act. The ground upon which they base

[534]