McKinstry, J., dissenting: I respectfully dissent:
1. Article xiv. of the Constitution reads as follows:
“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 bylaw; 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 [35]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.
“Section 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.”
By the first section the Legislature is commanded to prescribe the manner in which the public use shall be regulated and controlled. The power of regulation and control is placed in the Legislature, without limitation, except that the rates or compensation “to be collected” for water supplied must be fixed annually by the Board of Supervisors, etc. The section declares the right to collect rates to be a franchise which can not be exercised “except by authority of and in the manner prescribed by law.” Both sections contemplate legislation regulating and controlling the public use,by authority whereof, and in accordance with which, the right to enjoy the franchise of collecting rates or compensation, for water supplied, can alone be enjoyed. The proviso, in the first section, does not purport to treat of the powers of persons or incorporated companies, on whom the Legislature may confer the right to collect rates, except to the extent that the rates shall be fixed by the local authority. The whole purpose of the proviso is secured by giving to it the effect of making the Supervisors, or other local governing board, the commission to fix rates when rates are to he collected. Neither of the sections prohibits, in terms or by necessary implication, the Legislature from providing—in laws prescribing the regulation of the [36]public use of water “for sale, rental, or distribution”—that water shall be furnished for certain public purposes free of charge. Under the present Constitution no laws have been passed prescribing the manner in which the use of water, which has been or may be appropriated, shall be regulated or controlled, or by what means individuals or corporations may acquire the franchise of collecting rates or compensation. If the plaintiff possesses the right at all, it is by virtue of its organization under the Act of 1858, and such right is subject to all the provisions and conditions of that Act; with the sole exception that, as held by this Court in Spring Valley W. W. v. Supervisors, 7 Pac. C. L. J. 614, the rates, which, according to that Act, are “to be collected” must be fixed by the Supervisors. Certainly, in my opinion, the 14th Article of the Constitution can be held to have no greater effect upon the Act of 1858- than to transfer to the Supervisors a power previ#hsly employed by the mixed commission, composed in part of the appointees of the corporation. By that act the plaintiff is authorized to charge for water furnished directly to the city and county for certain purposes.. (Spring Valley W. W. v. San Francisco, 52 Cal. 122.) As to such purposes there are “rates to be collected” which may be fixed by the Supervisors.
II. The last Section 19 of Article xi. of the Constitution provides: “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 or 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.”
[37]The article treats of “ cities, counties and towns.” This caption includes “ cities and counties ” and the provisions as to cities in the 19th Section are applicable to “ cities and counties.” (Const. Art. xi., Sec, 7.) But Section 19 of Article xi. is to be read in connection with Sections 1 and 2 of Article xiv. All portions of the Constitution are to be given effect. By Section 19, therefore, the power is not conferred upon every individual, under the direction of the Street Superintendent and subject to municipal regulations, to tear up the streets of a city for the purpose of laying down pipes, but only upon such individuals and corporations as shall acquire the franchise of collecting rates or compensation for waters to be supplied “ by authority of, and in the manner prescribed by law; ” the law, with reference to the use of water, commanded by the first section of the 14th article. No law has yet been passed providing for the manner of acquiring the right by individuals. Hence, the companies organized under the Act of 1858 have not yet acquired additional privileges, immunities or franchises by reason of Section 3 of that Act, which provides that all privileges which “ may hereafter be granted to any individual * * * * are hereby granted to all companies incorporated,” etc.
Article xiv. is headed “Water and Water Rights;” Article xi., as we have seen, “Cities, Counties and Towns.” Section 19 of the article last mentioned does not confer the right to charge tolls for water supplied to cities or their inhabitants. It presupposes the existence of individuals and corporations who shall have acquired the right “by authority of and in the manner prescribed by law,” and confers upon such individuals and corporations the privilege of laying down water pipes in the streets, under municipal direction and regulation. Treating of cities, the nineteenth ¡section recognizes the right of those who shall be clothed with the franchise of charging rates for water to enter upon and use the streets, but provides that the city shall have power (of which the Legislature can not deprive them) of directing, by their appropriate officer, how the work shall be done'so as to interfere as little as possible with the general use of the streets, and, by general regulations, to afford protection against damages. Still [38]further, the section reasserts the right of the city government to fix rates to he charged for water supplied.
The Constitution does not confer the franchise of collecting water rates upon any person or class of persons. It leaves the power of granting such privileges to the Legislature, to be exercised by the enactment of general laws. (Art. xiv., §§ 1, 2; Art. iv., § 25; Art. xii., § 1.)
In the opinion of members of this Court, Section 19 of Article xi., of the present Constitution, prohibits the passage of a general law, providing for the acquisition of the franchise of charging rates for water supplied to cities, or the inhabitants thereof, which shall require water to be furnished free of charge for the extinguishment of fires. The right to demand a supply, and the right to demand compensation therefor where “rates are to be collected,” are correlative. As has often been held, a further supply may be refused to one indebted for water already furnished. Can the individual or corporation refuse to furnish water to subdue a conflagration because a back bill has not been paid by the city ? If this be so, while buildings and other private property may be destroyed to prevent the spread of a fire, water cannot be taken to put the fire out if any sum be due for past supplies.
At all events, water cannot be taken to suppress a conflagration unless the city shall pay for it, while the citizens whose buildings are destroyed to prevent the spreading of a conflagration, has no redress, unless expressly given it by statute. (Dunbar v. San Francisco, 1 Cal. 355; Ruggles v. Nantucket, 11 Cush. 433; Stone v. Mayor, etc., 25 Wend. 157; White v. Charleston, 2 Hill, S. Car. 571.) I do“ not say that a statute or constitution cannot confer this extraordinary right on those to whom may be granted the franchise of charging rates for water distributed, but certainly doubtful or ambiguous language should not be construed as conferring it.
As I understand the view of the majority of members of this Court it is held, that, by a mandatory and self-executing provision of the Constitution, every individual, and every company incorporated to supply water to a city, is not only permitted to use the streets under municipal direction, but is also granted the franchise of charging rates or compensation “ subject to the sole condition ” that the rates shall be fixed [39]by the municipality; that the Legislature under the present Constitution has no power to attach any other condition to the enjoyment of the franchise by an individual corporation; and that all 'conditions found in a law providing for the organization of water corporations, passed prior to the adoption of the present Constitution, were annulled by the provisions of that instrument. If this view be correct, the Legislature has no power to require that the individual, who shall acquire the franchise, must be a citizen, or even a person capable of becoming a citizen; has no power to require that the organizers of a water corporation shall be citizens, or persons capable of becoming citizens; no power (except by reason of an express constitutional provision) to provide that stockholders in such corporations shall be personally liable for any portion of the corporate indebtedness; cannot, in brief, require of individuals (or corporators) any qualification, other than such as all individuals possess, or the assumption of any liabilities or duties other than those expressly mentioned in the Constitution. And this, although the condition at the end of Section 19, Article xi., is a condition upon the use of the streets and not a condition upon the grant of the franchise of charging rates; a grant not contained in the section.
Butá am not driven to consider the consequences of the rule. What portion of Section 19 of Article xi. clearly and distinctly lays down this limitation of legislative power? That a limitation upon legislative power must clearly and distinctly appear in the Constitution of a State, has been so often asserted by the Courts, that it would occupy space unnecessarily to cite the many authorities here. Again; the plaintiff here claims the new right to be paid for all water furnished for the extinguishment of fires. As it is settled that a limitation upon State legislation should plainly appear in the Constitution, it is equally settled that when there is serious doubt in respect to the interpretation of a law (or Constitution) claimed to confer franchises upon individuals or corporations, it should be construed against the party claiming the privilege, and in favor of the public. This point is ruled in S. V. W. W. v. San Francisco, supra, and the proposition is sustained by all the English and well considered American [40]cases. Franchises or immunities are not conferred or extended by ambiguous language.
The legislative exposition of the new Constitution is opposed to the theory here asserted by the petitioner. The sixth section of the Act of March 7, 1881, (Stats. & Arndts., 1881, p. 55), reads as follows: “Rates for the furnishing of water shall be equal and uniform. There shall be no discriminations made between persons, or between persons and corporations, or as to the use of water for private or domestic and public or municipal purposes, provided that nothing herein shall be so construed as to allow any person, company, association, or corporation to charge any person, corporation, or' association anything for water furnished them when, by any present law, such water is free.”
The present decision annuls the proviso, leaving the enacting clause to take effect in a sense the reverse of that intended by the Legislature.
I can not agree, that the fourth section of the Act of 1858, in so far as it requires' water corporations to furnish water to a.city “in case of fire'or other great necessity” free of charge, is no longer of any force or effect, because in conflict with the last sentence of Section 19 of Article xi. of the Constitution. If that sentence prohibits the Legislature from requiring that water shall be furnished “in case of fire,” etc. free of charge, the prohibition is found in the words “regulate” and “thereof.” It may be claimed that the right in the city to regulate charges implies a right on the part of the individual or corporation to make charges, and, as the word “thereof” relates to supplies to the city “for domestic and all other purposes,” the charges which it is the right (and therefore the duty) of the city to “regulate” include charges for water used in putting out fires. Thus by a series of implications, and by deducting inference from inference, the language of the Constitution is made the equivalent of a direct declaration, annulling the clause in the Act of 1858 which requires water to be furnished free of charge “in case of fire or other great necessity,” and providing, that, from the time the Constitution should take effect, the Legislature should have no power to accompany the franchise with such requirement.
[41]Is it thus that the framers of Constitutions declare a limitation upon legislative power?
Section 19 does not purport to impose new duties upon municipal governments. It treats of their rights, giving them authority to direct corporations or individuals, who shall ac- ■ quire the franchise of distributing water, etc., shall use the streets, and to pass general regulations or ordinances, with reference to damages; and it reasserts their right to fix rates. The duty of the municipalities to fix rates is imposed by the first section of the 14th article. Beading the two together, the last words of Section 19 of Article xi. are in the nature of a proviso, that nothing in that section contained shall be construed as depriving the municipal government of the right of regulating or fixing the rates “to be collected” as provided in Section 1 of Article xiv. To hold, that by reason of the use of the word “thereof,” the Constitution makers must have intended to prohibit the Legislature from allowing any water to be furnished free of charge, and to cast upon the municipal governments the duty of imposing charges upon all water supplied (which is not done in Section 1 of Article xiv.—the section which directly treats of the subject and defines the duty), is to build a constitutional inhibition upon inferences from language whose main,-and, as I believe, only purpose, is to reassert the right of the local governments to fix the rates or compensation “to be collected.”
III.' It has been held that the provisions of the Constitution giving the right to, and imposing the duty upon the local government of fixing water rates, did not impair the obligation of any contract between the State and the present plaintiff; also that such provisions apply to corporations existing before the adoption of the Constitution: S. V. W. W. v. Supervisors, 1 Pac. C. L. J., 614.) If the question whether the provisions referred to were applicable to corporations organized before the present Constitution took effect were res nova, I should be inclined to the opinion that the provisions of the Constitution were hot applicable to such corporations. The proviso in Section 1 of Article xiv. follows an enacting clause, which declares the use of water “for sale, rental, or distribution” a public use, to be regulated and controlled in a “manner to be prescribed by law.” And the sections of Arti[42]ele xii., which treats of “Corporations,” would seem to recognize the proposition that all laws concerning corporations in force prior to the Constitution, would continue in force until altered by legislation; except, perhaps, in certain particulars expressly mentioned in that article. But, in- what is said herein, I have assumed that the sections of Articles xi. and xiv. apply to corporations formed under the law of 1858.
. Assuming the constitutional provisions to apply to corporations formed under the law of 1858,1 am at a loss to understand how the mere transfer, to the Supervisors, of the power of fixing rates relieves such corporations of the duty of furnishing water, free of charge, for the extinguishment of fires.
It is said, with reference to the effect of the constitutional provision upon the fourth section of the Act of 1858: “ The consideration for the duty imposed upon the company to supply free water was the privilege conferred by the same section of the Act upon the company to participate in fixing the water rates. The duty and privilege were correlative, and when the privilege was taken away the corresponding duty ceased to exist.” But the section of the Act referred to does not purport to create any relation, between the duty and the privilege, which makes one dependent upon the other. Where, then, is the duty made the consideration for the privilege, or the former made correspondent to the latter ? By the Constitution of 1849 it is provided that general laws under which corporations can he formed “ may be altered from time to time, or repealed.” (Art. iv. Sec. 31.) It might be argued that there is a limit to this power of alteration, under the former and present Constitution; that it can not be employed so as to impair the obligation of a contract. But, as we have seen, this Court has already decided that the provision of the Constitution of 1879, transferring the power and duty of fixing water rates to the Supervisors, does not impinge upon vested rights nor impair the obligation of any contract between the State and a water corporation formed under the Act of 1858. (S. V. W. W. v. Supervisors, supra.) How can a clause of the Constitution, of whose effects the corporations formed undfr the Act of 1858, have no legal right to complain, operate to relieve such corporations of any duty imposed by the law under which they were organized—the clause in the Constitution [43]itself containing no language indicating any such purpose. The people by the Constitution of 1879, did not modify a previous contract between them and the plaintiff. The sovereign power took from its creature not sacred property, but at most a privilege which it had reserved the right to retake by the thirty-first section of Article iv. of the former Constitution. Such is clearly the meaning of the decision in S. V. W. W. v. Supervisors.
The power, by the former Constitution, reserved to the State to alter general.incorporation laws is of little value to the State or people if, in a case where admittedly the alteration does not impair the obligation of a contract, the power cannot be exercised without incidentally relieving corporations previously formed of some duties or obligations (not mentioned or referi-ed to in the amendatory law), supposed to have some “ corresponding ” relation to the privilege of which-—• for the future—such corporations are deprived by the alteration in the law.
IV. I am perfectly willing to concede the public spirit which has induced the plaintiff to seek by this proceeding to relieve the individual consumers of water by imposing a portion of their burden upon the city. I shall be glad if any practical ' benefit shall accrue by the change to the consumers or to the public. After all, however, the question is, What is the law ?—not whether the law might be improved.