Harrison, J., concurring. Whether the power to fix water rates in the city and county of San Francisco is vested in the board of supervisors alone, or whether the mayor is a constituent part of the governing body of that [133]city and county, and thereby vested with the function of assisting in fixing those rates, is to be determined solely by the construction of the language in which the authority is conferred. The same section of the constitution declares that if any board or body fails to pass the necessary ordinances or resolutions fixing these rates, as therein directed, they shall be subject to peremptory process to compel their action. This is a mandatory provision, and if the occasion shall ever be presented the issuance of such process ought not to be withheld upon the theory that it cannot be enforced. We ought not to assume that any political body will refuse to comply with the law after it has been declared by the highest tribunal in the state, or that there will he any occasion for a court to invoke any force other than the moral strength which its own declarations of the law ought to impress upon every citizen.
Article XIV, section 1, of the constitution, declares that the rates for the use of water supplied to any city and county shall be fixed annually “ by the board of supervisors, .... or other governing body of such city and county, by ordinance or otherwise, in the manner that other ordinances or legislative acts or resolutions are passed by such body.” If the determination of the question above stated is limited to the provisions of the constitution alone, it is clear that this duty is imposed upon the board of supervisors alone. The phrase “ or other governing body,” inserted in the section after the “ board of supervisors” already designated, does not limit or qualify the functions of that board, hut is evidently inserted for the purpose of supplying any omission in the previous enumeration of the titles by which the governing bodies of the several towns or cities may be known, and applies to those municipalities whose governing bodies are otherwise entitled, as, for example, the board of trustees in the city of Sacramento.
The respondent contends in substance that the term “ governing body” is a nomen generalissimum, of which [134]“ board of supervisors” is only an enumerated species, and that for the purpose of determining what is the governing body of any municipality it is necessary to resort to the organic act under which the several cities are organized; that by the provisions of the Consolidation Act of the city and county of San Francisco the mayor is a constituent part of the governing body of that municipality, and, consequently, in fixing the water-rates for that municipality he is to be consulted.
We are not called upon here to determine how the water rates in San Francisco should be fixed, in case the governing body of the city and county of San Francisco should be changed, as that city is still governed by the same charter as existed at the adoption of the constitution. The contention of the respondent that the mayor is a part of the governing body of San Francisco rests upon the provisions of section 68 of the Consolidation Act, which declares that certain ordinances shall be presented to him for approval “ before they take effect.” This “ approval ” of the mayor is, however, an act distinct from the passage of the ordinance, and it is not called into exercise until after it has been passed by the board of supervisors. The mayor has no vote upon its passage, and the language of the section requiring it to be presented to him for his approval is that the ordinance, “ after the same shall pass the board, shall, before it takes effect, be presented to the president of the board (mayor) for his approval.” The Act of 1868 (p. 702) does not' extend the power of the mayor in the passage of any ordinance or resolution by the board of supervisors, but merely provides that in those cases in which he is authorized to exercise a disapproval of their acts, nine votes shall be necessary to override his action. The same act provides that any ordinance, order or resolution may be passed by the vote of seven members of the board, and, consequently, every ordinance which is adopted by seven members is valid immediately upon its passage, unless by virtue of [135]section 68 it requires his approval. (See Chumasero v. Potts, 2 Mount., 285.)
The mayor is not a member of the hoard of supervisors, nor is he necessarily a constituent part of the legislative power of the municipality. His functions are of an executive or administrative character, and in article XI of the constitution he is in several places styled the “chief executive officer” of a city. Whatever power he may at any time exercise in the legislative functions of a municipal government is never to be implied, but must find its authority in some positive statute, and, as the constitution confers upon the board of supervisors the power to fix the water rates by an ordinance, and neither makes any limitation upon their absolute authority in the matter, nor refers- to any approval of their act by the mayor, wn are not justified in holding that his approval is necessary.
It is further contended by the respondent that, inasmuch as the constitution requires the ordinance fixing the water rates to be passed by the board of supervisors “in the manner that other ordinances or legislative acts or resolutions are passed by such body,” and, as by the provisions of section 68 of the Consolidation Act the mayor’s approval is necessary to the validity of certain ordinances of which it is claimed this is one, such approval is a part of the “ manner” in which the ordinance must be passed. The reference therein to the “ manner ” in which legislative acts are passed may varv according to the provisions of the statute under which the municipal body is organized. There may he no power to pass any legislative act until after it has been offered at a previous meeting of the board, or until after it has been published for a certain number of days, or the charter may require that the vote upon its passage shall be by having the ayes and noes entered upon its records, or by having the original ordinance signed by the members of the body voting therefor. As a creature of the legislature, the mode in which [136]the municipal body is authorized to, act becomes the only mode in which its acts can have validity, and this provision of the constitution only means that the ordinance or resolution by which the water rates shall be passed shall be in that manner which will constitute it a valid t ordinance or resolution. This, however,- does not include any steps other than those which' are necessary for the passage of the of ordinance, nor does it include any act of any other character than its passage. It is sometimes provided that an ordinance shall not have-effect until it has been entered at length in a book kept for that purpose, or until it shall have been published in some newspaper for a certain length of time. These are steps necessary to give validity to the ordinance for its enforcement, but are entirely disconnected with its passage. The ordinance provided in this section of the constitution becomes valid immediately upon its passage.
Even under the provisions of section 68 of the Consolidation Act, the approval of the mayor does not become essential to the validity of an ordinance fixing water rates. His approval is required to only certain classes of ordinances which are enumerated in that section. These are ordinances “ providing for any specific improvement, the granting of any privilege, or involving the lease or other appropriation of public property, or the expenditure of public moneys (except for sums, less than five hundred dollars), or laying tax or assessment, or imposing a new duty or penalty.” It is sufficient to say without further discussion that an ordinance fixing water rates is not included in either of these classes. The direct object and purpose of the ordinance does not involve the expenditure of any public moneys, but is to perform a public duty imposed by the sovereign people upon a designated tribunal of determining the compensation which the water company shall receive in the exercise of its franchise. Although this ordinance is the act of a legislative body, and is to that extent a legisla[137]tive act, as has been, sometimes stated, yet the act itself is more of a judicial than a legislative character, and was so determined by the supreme court of the United States in Spring Valley Water Works v. Shottler, 110 U. S. 347. In that case it was said with reference to this provision: “By the constitution, and the legislation under it, the municipal authorities have been created a special tribunal to determine what, as between the public and the company, shall be deemed a reasonable price during a certain limited period. Like every 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.” (See, also, Spring Valley Water Works v. San Francisco, 82 Cal. 307; 16 Am. St. Rep. 116.) The constitution substituted the board of supervisors for the board of commissioners which was authorized by the Act of 1858, and it is reasonable to hold that the functions of the two boards are the same.
The proposition that the power to fix the water rates rests with the supervisors alone is not now presented for the first time. In Spring Valley Water Works v. San Francisco, 61 Cal. 18, Chief Justice Morrison said that this provision for fixing the water rates “is as broad and comprehensive as the English language could make it, and gives to the board of supervisors of the city plenary power over the subject matter to which the article relates,” and in another case between the same parties, reported in the same volume (61 Cal. 3), Justice McKee, in giving the opinion of the court, said: “Water rates must be fixed by the board of supervisors, pursuant to the provisions of the Act of 1881, and not by a board of commissioners appointed under the Act of 1858.” In another case between the same parties (82 Cal. 305; 16 Am. St. Rep. 116), this court said: “It must be conceded in the outset that the use of water for sale is a public use, and that the price at which it shall be sold is a [138]matter within the power of the board of supervisors to determine.” The Act of 1881 (page 54), above referred to, is a legislative provision for carrying into effect this provision of the constitution, and the first section declares: “ The board of supervisors, town council, board of aldermen, or other legislative body of any city and county, city or town, are hereby authorized and empowered, and it is made their official duty, to annually fix the rates that shall be charged and collected by any person, company, association or corporation for water furnished to any such city and county, or city or town, or the inhabitants thereof. Such rates shall be fixed at a regular or special session of such board, or other legislative body, held during the month of February of each year, and shall take effect on the first day of July thereafter, and shall continue in full force and effect for the term of one year, and no longer.” In this statute the board of supervisors alone is designated as the body whose official duty it is to fix the rates, and there is no reference to any approval of their act by the mayor, or any limitation upon the manner in which they shall act, and, for the purpose of determining whether their act is valid, we have only to look to their organization and invoke the general rules of construction for determining how an organized board may execute a power conferred upon it.
For the foregoing reasons, as well as those presented by Mr. Justice McFarland, the judgment should be reversed and the court below directed to dismiss the proceedings.
De Haven, J., and Fitzgerald, J., concurred.