Thornton, J., dissenting. I dissent. I am of the
opinion that the superior court had jurisdiction of this case. It has jurisdiction of all cases in equity. (Const., art. 6, sec. 5.) I have no doubt it has jurisdiction of the case attempted to be made by the complaint herein as presented in that pleading. It is a case brought for preventive relief. Its general purport is to prevent th e property of the plaintiff from being taken by the action of the board of supervisors of the city and county of San Francisco, claimed to be unauthorized by law, without due process of law and without compensation. All other relief sought is incidental to that just mentioned. Surely there can be no doubt at this day that such a case is within the equity jurisdiction of the superior courts of the state. The questions here to be considered relate to the exercise of jurisdiction, and the limits the law prescribes to the exercise of that jurisdiction. If the court has not exceeded such limits, its judgment must stand. The only real questions presented in this case relate to error in the employment of its jurisdiction. The judgment is correct, unless there can be found error in the record.
The question of the sufficiency of the complaint first attracts attention, and I am of opinion that the complaint does not state facts sufficient to constitute a cause of action.
The complaint is defective in this: that it does not show on its face, by proper averment, that the rates fixed by the defendant board of supervisors are unjust, or unreasonable or oppressive, and will not yield to the plaintiff all the revenue to which, under the law, it is entitled.
[318]The averments in regard to the fixing of rates are general and indefinite.
The one most particular and definite, and on which, in my opinion, the decision of the case must turn, is contained in the following paragraph of the complaint: “ That the said ordinance or order is, and the rates purporting to be prescribed and fixed thereby are, grossly unjust, unreasonable, and oppressive; that said rates do not permit of nor provide for a just or fair or reasonable compensation for the water to be supplied during said year by this plaintiff, to said city and county and to the inhabitants thereof; and that if said ordinance or order is enforced, and if the plaintiff is prevented from charging and collecting any other or greater rates than those prescribed, its gross income from the said rates for the year commencing July 1, 1889, and ending June 30, 1890, will not and cannot possibly exceed the sum of seven hundred and fifty thousand dollars; and it will be wholly insufficient to pay the interest on the plaintiff’s indebtedness, its operating expenses and taxes; and not. only will not and cannot yield any dividend to its stockholders, but will render it necessary to levy heavy assessments upon said stockholders to pay said interest, expenses, and taxes.”
It is here averred that the rates allowed by the ordinance will not and cannot produce an income, and will not allow the plaintiff to collect a sum. which exceeds in amount seven hundred and fifty thousand dollars.
The plaintiff must show to the court by the avermentsthat this is so; general averments of the character above set forth are insufficient. The facts must be pleaded from which the court can perceive, and itself make an estimate, and the estimate so made by the court must show a result from which it can perceive that the rates fixed are unjust and unreasonable, and will produce an income less than that to which the plaintiff is by law entitled. Such a result must be shown by the facts [319]stated in the pleading. The data on which the computation is to be made must appear by distinct allegation on the face of the complaint. The mere statement of the plaintiff as to the amount of money which the rates will bring to its coffers cannot be accepted by the court. (Branham v. Mayor etc., 24 Cal. 602.)
The facts in this regard are not sufficiently pleaded, and for this reason they are not admitted by the demurrer. A party demurring admits only such facts as are well pleaded. (Branham v. Mayor etc., 24 Cal. 602; Johnson v. Kirby, 65 Cal. 487; Stephen’s Pleading, 143; Gould’s Pleading, c. 9, secs. 5, 6, 24, 29.)
In Branham v. Mayor etc., the court said: “Piad the ayuntamiento pow'er to mortgage the pueblo lands to Aram, Belden, and Reed, under the circumstances and for the purposes narrated in the complaint? This question is not discussed by counsel for appellant, under the pretense that it cannot be made upon demurrer; holding that, inasmuch as he has averred that the ayuntamiento, being a municipal body, could take and exercise only such powers as were conferred by the will of the sovereign, as expressed in the laws creating it. Every question as to what power has been conferred by such laws is a question of law, and not of fact; and the averment in the complaint that the ayuntamiento had full power and lawful authority to do the act in question is hut an averment of a conclusion of law, and does not tender an issue of fact. A demurrer admits the truth of such facts as are issuable and well pleaded; but it does not admit the conclusions which counsel may choose to draw therefrom, although they may be stated in the complaint.”
In Johnson v. Kirby, 65 Cal. 487, the following observations were made by the court on this point: “It is also averred that this assessment was not levied in accordance with law, and is void; but the defendants insist that it is valid, and treat it as valid. The pleader does [320]not state any fact showing or tending to show that the assessment was not made in accordance with law, or that it is not valid. It is stated in the complaint, as matter of law, as a legal conclusion. A demurrer only admits such facts to be true as are wTell pleaded. It does not admit matter of law or legal conclusions. Such averment, then, goes for nothing. We cannot take it into consideration in deciding the questions in this cause. Nor can we take into consideration the averment that the company sold the thirteen shares of stock to the Lanes, and thereby Kirby became possessed of the benefits of this stock. It is not alleged in what mode he became possessed of these benefits. It is not averred that the Lanes were Kirby under another name; that they were in fact Kirby himself. It is not stated that Kirby became in any way the owner of the shares, but became possessed of benefits. What these benefits are does not appear. That he became possessed of benefits is a legal conclusion. No facts are alleged, and therefore none are admitted by the demurrants.”
The facts above stated, taken from the complaint, are conclusions of fact, or conclusions made up of law and fact, and whether conclusions of fact, or conclusions of law and fact, they are alike insufficient. As said in Branham v. Mayor etc., “ a demurrer admits the truth of such facts as are issuable and well pleaded; but it does not admit the conclusions which counsel may choose to draw therefrom, although they may be stated in the complaint.” (24 Cal. 602.)
I cannot perceive how a court can accept the conclusions drawn by the pleader in the paragraph above quoted as well pleaded and admitted by the demurrer.
That the allegation, “the said ordinance or order is, and the rates purporting to be prescribed and fixed hereby are, grossly unjust, unreasonable and oppressive,” is a conclusion either of fact, or of law and fact, is too plain to admit of doubt. The same is true of the succeed[321]ing allegation, "that said rates do not provide for a just or fair or reasonable compensation for the water to be supplied during said year by the plaintiff to said city and county and to the inhabitants thereof.” The above allegation states no issuable fact; it is full of conclusions, and nothing beside. The next allegation is of the same character.
The defendant should not be called on to answer such allegations. Under our system of pleading, facts only must be stated. This means the facts as contradistinguished from the law, from argument, from hypothesis, and from the evidence of the facts. ( Green v. Palmer, 15 Cal. 412; 76 Am. Dec. 492, and cases cited in note of second edition of 15 Cal.) Such allegations of fact the defendant is only required to answer. (See case last cited.)
The rule that should control in this case is that which is applied to pleadings in which fraud is charged. Though fraud is not expressly charged, still the charges are of a gross dereliction of duty, and the facts showing such dereliction should be set forth in the complaint. The counsel for plaintiff strenuously asserts and contends that it is a case of fraud, and bases an earnest argument on it to sustain the jurisdiction of the court below. It is not sufficient to aver fraud in general terms; the facts constituting the fraud must be alleged. This is held in many cases decided by this court. This course of decision commenced at an early date in this state, as in Gushee v. Leavitt, 5 Cal. 160, 63 Am. Dec. 116,. decided in 1885; Kinder v. Macy, 7 Cal. 207, decided in 1857, and continued in Kohner v. Ashenauer, 17 Cal. 580; Meeker v. Harris, 19 Cal. 289; 79 Am. Dec. 215; Castle v. Bader, 23 Cal. 76; Semple v. Hager, 27 Cal. 163; Hager v. Shindler, 29 Cal. 60; Kent v. Snyder, 30 Cal. 674; Perkins v. Center, 35 Cal. 713; and many other cases which can be found by reference to the digest.
[322]Dow v. Beidelman, 125 U. S. 680, is a strong authority to support the contention herein put forth.
The question in that case was as to the reasonableness of rates of transportation prescribed by the statute of the state of Arkansas on a railroad within that state. Justice Gray delivered the opinion of the court, in which he quoted with approval the rule laid down in Stone v. Farmers’ etc. Co., 116 U. S. 307, as to the limitation of the power to prescribe rates in such cases, viz., that the rates must not be so fixed as to amount to a taking of private property for public use without compensation, or without due process of law. The opinion subsequently proceeds as follows: “The plaintiffs in error do not contend that it is always or generally unreasonable to restrict the rate for carrying each passenger to three cents a mile. They argue that it is so in this case by reason of the admitted fact that with the same traffic that their road has now, and charging for transportation at the rate of three cents per mile, the net yearly income will pay less than one and one half per cent on the original cost of the road, and only a little more than two per cent on the amount of its bonded debt. But there is no evidence whatever as to how much money the bonds cost, or as to the amount of capital stock of the corporation as reorganized, or as to the sum paid for the road by that corporation or its trustees. It certainly cannot be presumed that the price paid at the sale under the decree of foreclosure equaled the original cost of the road or the amount of outstanding bonded debt. Without any proof of the sum invested by the reorganized corporation or its trustees, the court has no means, if it would under any circumstances have the power, of determining that the rate of three cents a mile fixed by the legislature is unreasonable. Still less does it appear that there has beeii any such confiscation as amounts to a taking of property without due process of law.”
The action in Dow v. Beidelman, 125 U. S. 680, was [323]brought against certain trustees, who were alleged to be the owners and in possession of the railroad. The defendants did not prove the facts referred to in the above extract from the opinion to show that the rates prescribed by the statute were unreasonable, and therefore they failed in the suit.
Such facts could not be proved without being alleged. It is so held in Green v. Palmer, supra, and it is common law and common learning. A party must allege every material fact which he is required to prove, and will be precluded from proving any fact not alleged. (15 Cal. 412, 415.) In view of this rule, which is of frequent application in courts, Dow v. Beidelman is a strong authority to show that the view of the complaint above taken is correct, and that it does not state facts sufficient to constitute a cause of action.
The complaint here does not furnish data or state facts from which a court can see that the rates allowed by the ordinance are not just and reasonable, or that the income which will be received by the plaintiff from the adoption of such rates in making collections will not furnish all the revenue which the law allows, or that it can claim. One cannot perceive or calculate from any facts set forth in the complaint the amount which the rate-payers will have to pay under the rates prescribed by the ordinance each month or for the year. Until such facts are set forth so as to make manifest to judicial cognition what such amount must and will be, it cannot be held that the complaint is sufficient.
A court should not consider a cause when such grave charges of an intentional dereliction of duty (for it is clear that intentional wrong is intended here to be charged) against a public officer are stated in the complaint. Nor should such officer be held to answer them. They should be made specific in statement, so that the defendant may see in advance what he has to admit or deny, and what evidence he will have to produce to [324]disprove the charges made against him. The board -of supervisors have important and responsible duties to perform, and when they are charged with a dishonest and intentional failure to discharge their duties, the complaint should aver in wha,t particulars they have so failed. Fraud lurks in generalities, and the law imposes on every plaintiff the obligation in making such charges to make them in distinct and specific language. The complaint should not be argumentative, nor an attempt to show by inference to be drawn from general statements, that public officers have been guilty of intentionally dishonest conduct in the discharge of their official duties. Courts are bound to assume that the supervisors are men of ordinarily respectable standing, and they have a right to ask and demand of courts that they should be protected as far as the law allows from charges of dishonest official conduct couched in general statements. They should be stated specifically, so that each of them may know what the charge is, and what they have to defend against. This is common justice, every day administered by courts, and never otherwise administered.
I do not think, for the reasons above stated, that the statements of the complaint generally made, as pointed out, are sufficient to justify the court in coming to the conclusion that the board of supervisors of the city and county of San Francisco, in fixing rates for water, to be paid by the rate-payers in February, 1889, have failed in discharging their duty honestly and uprightly, and I am of opinion that the court below erred in overruling the demurrer to the complaint, for which error the judgment should be reversed.
I am of opinion that it is incumbent upon the board of supervisors of the city and county of San Francisco to so fix the rates for which water is to be sold by the plaintiff as to furnish it a fair income on its investment employed-in furnishing water to the rate-payers, but not [325]on any investment made by it not so employed. What is such a rate is submitted by the constitution and laws to the discretion of the board. This discretion, when fairly exercised, cannot be controlled by this court or any other court. It is so held in all the cases cited by counsel for the plaintiff. When the fairness of the rates so established is attacked in a court of justice, and the court can see that such a discretion has been exercised as to allow a compensation to the company furnishing water beyond the cost of furnishing it, it cannot interfere in the rates so fixed. Its power is then at an end. It is so limited by the law, and courts cannot pass this limit without usurpation. Such must be the rule, or the courts must assume the duty vested by the constitution in the board of supervisors.
Take the rule as stated in the cases cited and relied on by the able and learned counsel for plaintiff.
In Spring Valley Water Works v. Schottler, 110 U. S. 347, this was said, with reference to the power of the defendant board of supervisors to fix rates: “Like any other tribunal established by the legislature for such a purpose, their duties are judicial in their nature, and they are bound in morals and in law to exercise an honest judgment as to all matters submitted for their official determination.”
In Stone v. Farmers' etc. Co., 116 U. S. 307, the court, in speaking of the power of the legislature through the agency of a commission to fix rates of fare and freight on railroads within the state, said: “This power to regulate is not a power to destroy, and limitation is not the equivalent of confiscation. Under pretense of regulating fares and freights, the state cannot require a railroad corporation to carry persons or property without reward; neither can it do that which in law amounts to a taking of private property for public use without just compensation, or without due process of law. What will have this effect we need not now say,” etc.
[326]In Dow v. Beidelman, 125 U. S. 680, reference is made to the cases above referred to, and the same rule is stated. In this case, the defendants, who were the railroad trustees, failed in their defense for lack of proof that the rates fixed" by the legislature of Arkansas were unreasonable.
In Georgia etc. Co. v. Smith, 128 U. S. 174-179, the court, speaking by Field, J., said: “It has been adjudged by this court in numerous instances that the legislature of a state has the power to prescribe the charges- of a railroad company for the carriage of persons and merchandise within its limits, in the absence of any provision in the charter of the company constituting a contract vesting in it authority over those matters, subject to the limitation that the carriage is not required without reward, or upon conditions amounting to the taking of property for public use without just compensation.”
The cases of Chicago etc. R. R. Co. v. Dey, 35 Fed. Rep. 866, and Hume v. Becker, 35 Fed. Rep. 883, are decided on the same rule.
The above rule, as is seen in the case of Hume v. Becker, above mentioned, only amounts to this: that in fixing rates, something must be allowed beyond the expense or cost of service. In that case, the rates fixed by a state railroad commissioner for switching cars was $1 per car, while it cost the plaintiff railroad company $1.14 for such service. The court below held that this rate could not be enforced, quoting this remark from the Railroad Commission Cases, 116 U. S. 331: “The state cannot require a railroad corporation to carry persons or property without reward. ” (See further, Pensacola R. R. Co. v. Florida, 5 South. Rep. 833; State v. Cincinnati Gaslight Co., 18 Ohio St. 298, 301, 302.) The rule established by the cases cited may be formulated thus: the rates fixed must allow something beyond the cost of service. This something is compensation. If such compensation is [327]allowed, there is no talcing of property without compensation. (See cases cited above.)
What the compensation shall be is left entirely to the discretion of the state or the railroad commission, and here to the board of supervisors. This is plainly set forth in Chicago etc. R. R. Co. v. Dey, supra. Brewer, J., after quoting the rule from the cases decided by the supreme court of the United States, and particularly from Stone v. Trust Co., 116 U. S. 307, said:—
“It is obvious from these last quotations that the mere fact that the legislature has pursued the forms of law in prescribing a schedule of rates, does not prevent inquiry by the courts, and the question is open, and must be decided in each case, whether the rates prescribed are within the limits of legislative power, or mere proceedings which in the end, if not restrained, will work a confiscation of the property of complainant. Of course, some rule must exist, fixed and definite, to control the action of the courts, for it cannot be that a chancellor is at liberty to substitute his discretion as to the reasonableness of rates for that of the legislature. The legislature has the discretion, and the general rule is, that where any officer or board has discretion, its acts within the limits of that discretion are not subject to review by the courts. Counsel for complainant urge that the lowest rates the legislature may establish must be such as will secure to the owners of the railroad property a profit on their investment at least equal to the lowest current rate of interest, say three per cent. Decisions of the supreme court seem to forbid such a limit to the power of the legislature in respect to that which they apparently recognize as the right of the owners of the railroad property to some reward; and the right of judicial interference exists only wdien the schedule of rates established will fail to secure to the owners of the property some compensation or income from their investment. As to the amount of such compensation, if some compensation or [328]reward is in fact secured, the legislature is the sole judge.
“ The question is then one alone of policy. Whether, by reducing the compensation to a minimum, railroad enterprises shall be discouraged, or, enlarging, encouraged, is a matter for legislative, and not judicial, determination. Take a kindred matter. It is within the power of the legislature to prescribe the rate of interest, and to punish by severe penalties the exaction of larger than the legal rate. What that legal rate shall be is not for the courts, but for the legislature, to determine. Suppose the legislature of Iowa should reduce the legal rate of interest to one per cent* although such legislation would prevent capital from coining into the state, would the courts have power to declare the law unconstitutional? In like manner the rulings of the supreme court imply that the legislature may reduce railroad rates until only a minimum of compensation is secured to the owner. The rule, therefore, to be laid down is this: that where the proposed rates will give some compensation, however small, to the owners of the railroad property, the courts have no power to interfere. Appeal must then be made to the legislature and the people. But where the rates prescribed will not pay some compensation to the owners, then it is the duty of the courts to interfere and protect the companies from such rates.”
In regard to the contention that as to the rates fixed the courts must decide what is reasonable, and not the legislature, it was said: “ Where property has been clothed with the public interest, the legislature may fix a limit to that which in law shall be reasonable for its use. This limits the courts as well as the people. If it has been improperly fixed, the legislature, not the courts, must be appealed to for the change.” (94 U. S. 178.)
In Dow v. Beidelman, 125 U. S. 680, the above language of Chief Justice Waite was quoted with approval, and the rule laid down in it acted on. That it was acted [329]on in that case will appear so plainly from a perusal of the opinion that it is not necessary to spend time in pointing it out. The rule thus declared by the chief justice is supported by Peik v. Chicago etc. R. R. Co., 94 U. S. 178; Chicago etc. R. R. Co. v. Ackley, 94 U. S. 179; Winona etc. R. R. v. Blube, 94 U. S. 180; Stone v. Wisconsin, 94 U. S. 181; Dow v. Beidelman, 125 U. S. 687, 688.
In my judgment, those cases establish the rule that in fixing rates the compensation to be allowed must exceed running expenses or cost of service. What the amount of that compensation shall be is confided entirely to the discretion of the tribunal fixing the rates. When such compensation is allowed, it “limits the courts as well as the people. If it has been improperly fixed, the legislature, not the courts, must be appealed to for the change.” As said by Brewer, J.: “It cannot be that a chancellor is at liberty to substitute his own discretion as to the reasonableness of rates for that of the legislature.” (85 Fed. Rep. 878.)
That an enlarged discretion is committed by the constitution and statute to the board of supervisors in the matter of fixing rates for water, cannot be disputed. They cannot so exercise this discretion as to compel the plaintiff to render the service of supplying water without reward. They must so fix the rates that a sufficient amount of money may be derived on their collection by the plaintiff to pay the cost of services, and beyond that some reward or compensation. What such reward or compensation shall be is a matter left entirely to the discretion of the board, and with the exercise of such discretion the courts cannot at all interfere.
The above is the result of all the decisions which have been cited and relied on by the plaintiff’s counsel. After a diligent examination, I can find no other principles or rules established.
According to this rule, the rates must be so fixed as to [330]allow money to be raised to pay the fairly necessary operating expenses of the plaintiff in rendering the service required. In this I include taxes on the property of the plaintiff invested and used in rendering such service as part of such operating expenses.
In fixing the compensation, regard must be had by the board to the value of the investment of the plaintiff in rendering the service required of it. The board must get at the value of the property of which the investment of the plaintiff consists, and upon such value they will allow such compensation as in their discretion they shall think fair and right.
The obligation does not rest on the board to fix the rates so as to furnish money to the plaintiff to pay the interest on the bonds negotiated by it. If the plaintiff has invested the money borrowed on the bonds in purchasing property used by it in rendering the service due from it, the value of the property, as said above, must be taken into consideration in fixing the reward or income it is to receive. When the value of such property has been taken into consideration, and the compensation fixed in regard to it, to allow rates so as to raise a sum sufficient to pay the interest on the bonds would be to allow compensation for the property bought with the money raised on the bonds, and for interest on such money in addition. This would be to allow for it twice.
If any portion of the money borrowed on the bonds was not invested in the property, needful and used in rendering the service required of plaintiff, it would be manifestly unjust to compel the rate-payers to pay interest on money so borrowed.
If the bonds bear too high a rate of interest, the ratepayers should not be required to furnish any money, if bound at all to furnish it for such purpose, to pay more than a reasonable rate of interest.
The above considerations show that the rates should be fixed so as to furnish compensation to the plaintiff [331]based on the amount invested, and not on their bonds or any other debts.
Nor is the board bound to fix rates to furnish the money to be used in the further extension or construction of the water-works of plaintiff. The rate-payers cannot be called on to pay for the construction of waterworks which the plaintiff is to own, and on the value of which compensation is to be allowed it. This would be to compel the rate-payers to furnish money to buy property for plaintiff, and also to pay plaintiff an income on such property when so paid for by them. The rate-payers, in such case, would buy the property for the plaintiff, and pay it interest on it. This cannot be just or right.
In dealing with this subject of rates, the rate-payers have rights which are to be regarded. The board must remember that, while they owe a duty to the plaintiff, they also owe a duty to the rate-payers. Their rights are to be regarded as well as the rights of the plaintiff; and while a fair compensation, considering the value of its investment, should be allowed to the plaintiff, this compensation should be adjusted with regard to the rights of those who have to pay such rates to the plaintiff.
The notice to the plaintiff was sufficient. The constitution and statutes, of which plaintiff must be held to have been cognizant, informed plaintiff that the rates had to be fixed by the board in the month of February of this year, and of each year. (Cal. Const., art. 14, sec. 1; and sec. 2 of act of March 7th, Stats. 1881, p. 54.) A tax-payer has no more notice of the assessment of his property, and of the meeting of the board of equalization. If a tax-payer desires the valuation of his property fixed by the assessor reduced by the board of equalization, he must take notice of its meetings, «which are fixed by law; and must apply to the board to be heard for that purpose.
[332]The law. as to the notice requisite is clearly set forth in the State Railroad Tax Cases, 92 U. S. 575, and the rule there declared is clearly applicable to the notice required in this case.
The point as to notice claimed by the railroad corporation in these tax cases was there disposed of by the court (all concurring), speaking by Miller, J.:—
“ There is, however, an objection urged to the conduct of the board of equalization, resting on the action of the board in these particular cases, in which they are charged with a gross violation of the law, to the prejudice of the corporations, which we will consider. The statute requires the proper officers of the railroad companies to furnish to the state auditor a schedule of the various elements already mentioned as necessary in applying the statutory rule of valuation. It is charged that the board of equalization increased the estimates of value so reported to the auditor "without notice to the companies, and without sufficient evidence that it ought to be done; and it is strenuously urged upon us that for the want of this notice the whole assessment of the property and levy of taxes is void. It is hard to believe that such a proposition can be seriously made. If the increased valuation of property by the board without notice is void as to the railroad companies, it must be equally void as to every other owner of property in the state when the value assessed upon it by the local assessor has been increased by the board of equalization. How much tax would thus be rendered void, it is impossible to say. The main function of this board is to equalize these assessments over the whole state. If they find that a county has its property assessed too high in reference to the general standard, they may reduce its valuation; if it has been fixed too low, they raise it to that standard. When .they raise it in any county, they necessarily raise it on the property of every individual who owns any in that county. Must each one of these [333]have notice and a separate hearing? If a railroad company is by law entitled to such notice, surely every individual is equally entitled to it. Yet if this be so, the expense of giving notice, the delay of hearing each individual, would render the exercise of the main function of this board impossible. The very moment you come to apply to the individual the right claimed by the corporation in this case, its absurdity is apparent. Nor is there any hardship in the matter. This board has its time of sitting fixed by law. Its sessions are not secret. No obstruction exists to the appearance of any one before it to assert a right or redress a wrong; and in the business of assessing taxes, this is all that can be reasonably asked.” (92 U. S. 609, 610.)
The subject of notice was also considered and passed on in Davidson v. New Orleans, 96 U. S. 97, and the Kentucky Railroad Tax Cases, 115 U. S. 331, and by this court in Lent v. Tillson, 72 Cal. 413.
In the last cited case, where the point was fully argued by counsel, and considered and discussed by the court, this court said: “It is claimed that the act does not provide for due process of law, because the notices prescribed are insufficient. The notices provided for in the act, which are criticised under this head, are, the notice of the organization of the board, and the notice that the report of the board is open for inspection. The sufficiency of the notice will depend to a very considerable extent on the nature of the proceeding and the statute on which it is based. The statute is always presumed to be known, and whether the notice really affords the necessary information and gives the party whose interests are affected an opportunity to be heard, must depend largely upon those provisions. It has been repeatedly held that proceedings for the levy and collection of taxes are not necessarily judicial, and that due process of law, as applied to such matters, does not require such notice as is considered essential to the [334]validity of a judgment. In the Kentucky Railroad Tax Cases, 115 U. S. 331, it is said: ‘Noticé by statute is generally the only notice given, and that has been held sufficient. In judging what is due process of law,’ said Justice Bradley, in Davidson v. New Orleans, 96 U. S. 97, ‘respect must be had to the cause and object of the taking, whether under the taxing power, the power of eminent domain, or the power of assessment for local improvements, or none of these; and if found to be suitable or admissible in the special case, it will be adjudged to be due process of law; but if found to be arbitrary, oppressive, and unjust, it may be declared to be not due process of law.’ In other words, the sufficiency of the notice must be determined in each case from the particular circumstances of the case in hand. And further, in matters of assessment and taxation, the same character of notice is not required as in ordinary actions in a court of justice, for the reason, I presume, that in such summary proceedings it is not practicable or usual.”
The court then proceeds to argue the question fully, and holds that the provisions of the statute gave notice, and no more particular notice was required; that the notice so given was all that “ due process of law ” required.
I am of opinion that the cases above cited should be regarded as settling the law on this question, and settling it adversely to the contention put forth in behalf of plaintiff. It cannot be said that any more specific notice is required in a case like this, where a plaintiff is seeking to acquire a right to levy and collect rates or taxes on the rate-payers, than there is required for the assessment of taxes or for an assessment for local improvements on the property benefited thereby.
In accordance with the criterion stated and adopted in Davidson v. New Orleans, 96 U. S. 97, if the notice is found to be suitable or admissible in the peculiar case, [335]it will be adjudged to be due process of law, but if found to be arbitrary, oppressive, or unjust, it may be declared to be not due process of law.
I cannot find the notice to the plaintiff here to be either arbitrary, oppressive, or unjust. On the contrary, it is clearly suitable and admissible.
The contention preferred here on the point is manifestly destitute of merit.
It does not appear that the plaintiff made any application to the board for a bearing until the last day of the month (February) in which the rates were to be fixed. It could have made s°uch application at any time during the month of February, or of January or December preceding. Nothing prevented it from informing the board of its desire to be heard, and requesting the fixing of a day for such hearing. The board of supervisors, on the 3d of December, 1888, in accordance with the provisions of section 2 of the act of March 7, 1881, adopted an ordinance requiring plaintiff to furnish the statement required by section 2 of the act above mentioned, with which it (plaintiff) complied on the 31st of January, 1889. Certainly there was no impediment to its asking the board for a hearing, and to fix a day for such hearing, at any time after the 3d of December above mentioned. No court has a right to assume that the board would not have complied with such a request if seasonably made. In my opinion it was not bound to comply with the request when made on the last day of February, and on the last ^day of the month within which the board was required by the constitution and by the statute, under a penalty of removal from office (sec. 8), to act. The request then made was unseasonable and unreasonable, and the board denied no right of plaintiff in refusing such a request.
As to the right of the plaintiff to introduce evidence before the board, this must be left to the discretion of the board. 1 cannot see that the law clothes the plain[336]tiff with any such right. It seems to me that the legislature has regulated the matter of evidence by the act of March 7, 1881. This is done by sections 2 and 3 of the act of 1881. (See Stats. 1881, pp. 54, 55.) By section 2, the plaintiff corporation is required, upon the requisition of the board of supervisors, to furnish to the board, in the month of January of each year, a detailed statement, verified by the oath of the president and secretary of the corporation, showing the name of each water-rate payer, his or her place of residence, and the amount paid for Avater by each of such water-rate payers during the year preceding the date of such statement, and also showing all revenues derived from all sources, and an itemized statement of expenditures made for supplying during said time.
By section 3 it is provided that, accompanying the statement above mentioned, the plaintiff corporation shall furnish to the board a detailed statement, verified in like manner as the other statement, showing the amount of money actually expended annually, since commencing business, on the purchase, construction, and maintenance, respectively, of the property necessary to the carrying on of its business, and also the gross cash receipts annually, for the same period, from all sources.
I remark here that though the first statement is required by law to be furnished in the month of January of each year, it was not furnished by the plaintiff in the year 1889 until the thirty-first day of January. It does not appear that the other statement required by section 3 has ever been furnished. The averment that the plaintiff, ever since the passage of the act of 1881, has complied in every respect with all the requirements thereof, is insufficient to show that it furnished in January, 1889, or at any other time, the statement required by section 3, The general averment of performance is allowed in pleading the performance of conditions pre[337]cedent in a contract (Code Civ. Proc., sec. 475), but here there is no contract, and the section is not applicable. The general allegation of compliance is manifestly insufficient. I know of no rule of pleading which permits or justifies it.
The legislature, under the first clause of article 14 of the constitution has clearly fixed the evidence on which the board is to act. The evidence required to be furnished to the board is all that is necessary to be supplied by the plaintiff, as will be seen on examination of the contents of the statements provided for in the act of the legislature. It is entirely in the discretion of the board to permit the plaintiff to offer any further evidence. It may do so, or not, as prompted by its discretion. The refusal by the board to permit the plaintiff to introduce further evidence in regard to the adjustment of rates was matter wholly within their discretion, and was not a denial of any legal right of the plaintiff. Neither was the board bound to hear argument on behalf of plaintiff. This also is submitted to its discretion. It was no more under obligation to hear argument on behalf of plaintiff than is a legislature to hear argument on behalf of parties interested in a bill before them for their action. All the allegations of the complaint just above referred to relate to immaterial or superfluous matters, which the defendants did not admit by their demurrer.
It is averred in the complaint that the ordinance of the board fixing the rates was not duly or lawfully passed, or that it was not published as required by the statute for five successive days. It appears by averment that it was published on six days, viz., on the 21st, 22d, and 23d of February, 1889, and 25th, 26th, and 27th, 1889. It was not published on the 24th of February, 1889.
In the year 1889 the 24th of February fell on Sunday. I am of opinion that the publication was sufficient. If it were not duly or lawfully passed, it was void. The board then had not acted at all, and was therefore guilty [338]of an act subjecting them to the penalty fixed by law, of removal from office for non-action. If it is void, I cannot see why this action should be brought, unless to procure a judgment that such ordinance is void; certainly there is no need for an injunction to restrain the enforcement of a void ordinance; nor do courts, nor should they, exercise such power or waste their time in considering such an application. That which is void injures no one, and no preventive relief is required or granted in such case, for the plain reason that there is no wrong to be redressed or prevented.
As it does not appear that the plaintiff ever furnished to the board of supervisors the statement (second statement) required by section 3 of the act of 1881, I am of opinion it has failed to place itself in a position entitling it .to be heard in a court of equity. The plaintiff must have complied with all the requirements which the statute has imposed on it to enable the board to act understandingly in fixing rates before it is entitled to complain or to be heard in court; when it has failed to comply with the lawful requirements made upon it, it has not done equity.' Equity does not act in favor of those who have failed to do equity.
In conclusion, in my opinion, this complaint does not show that the plaintiff has been deprived of due process of law, or that any of its property has been or will be taken for public use without just compensation. Conceding that the rates fixed by the ordinance will on its enforcement yield but $750,000, and that its operating expenses, including taxes, will amount to $442,278.05 (this is the amount stated in paragraph 13 of the complaint), there still remains as compensation the sum of $307,721.95, the excess of $750,000 over $442,278.05. It thus appears that the compensation will exceed the cost of service by $307,721.95. The amount of the compensation, it may be said, is small, but with the rate or amount of compensation, when it is allowed, courts have [339]nothing to do. This is left by the constitution and statute to the discretion of the board of supervisors, which courts can no more control than the board can control the discretion or judgment of courts. (See cases above cited from the federal courts.)
For the reasons heretofore given, I am of opinion that the court erred in overruling the demurrer to the complaint, and therefore that the judgment should be reversed.