CARTER, J. I dissent. The majority opinion reads words into a constitutional provision when there is no justification therefor on any ground of statutory construction. The constitutional provision is meticulous in specifying by name those public agencies which may be given immediate possession of property sought in eminent domain proceedings. A sanitary district is not one of such agencies.
Prior to its amendment in 1918, there was no provision for immediate possession in the Constitution. In 1918, the provi[851]sion was added which authorized such possession where the action was by the state, county, municipal corporation, or a drainage, irrigation, levee, or reclamation district, and a right of way was sought. The amendment in 1934 retained the above specified agencies and added: “metropolitan water district, municipal utility district, municipal water district and water conservation district” and the general clause “similar public corporation.” Thus the consistent practice has been to specifically name or describe the public agencies that have such power. For this court to add another distinctly named and constituted agency is manifestly out of harmony with that practice and the clear intent of the electorate.
The argument to the voters in favor of the 1934 amendment expressly stresses the limited character of the agencies and the essential factor that they must be agencies having to do with water resources. It was then urged: “1. To extend to metropolitan water districts, municipal utility districts, municipal water districts and water conservation districts the same privilege and authority as now vested in irrigation districts, drainage districts, levee districts, reclamation districts, municipalities, counties and the State—namely, the right to take possession of property sought for rights of way immediately upon payment into court of the amount fixed by the court as compensation. . . .
“The recent development of the State, especially in the way of water resources, has brought about types of districts which are especially designed for their particular purpose and which handle projects for irrigation, reclamation, levee protection, water conservation, etc., that can not well be handled by the city or even by the county. These districts in some instances embrace parts of several counties and appear to be the only suitable agency for handling their particular projects.
“It has long been the policy of this State, approved by the people of California, that sovereign agencies such as the State itself, or counties or cities, should have the right, when lands are required for rights of way such as roads and highways to take immediate possession upon payment into court of the amount fixed by the judge to cover any award by the jury as the value of the land. This same authority, so far as concerns land for rights of way, also now exists in the case of irrigation, drainage, levee and reclamation districts. . . .
“Likewise, the authority which is found necessary for irrigation, drainage, levee and reclamation districts should obviously likewise be available to the new and recently created [852]types of districts, such as metropolitan water districts, municipal utility districts, municipal water districts and water conservation districts.
"This amendment does away with the unfair discrimination which now exists between districts performing the same functions.
“This amendment simply extends the policy that has long been recognized, not only as desirable, but as absolutely necessary in order that government may carry on its functions. Unless this amendment is adopted it will be possible for one individual to hold up in litigation for many years the construction of essential works for the public’s development or utilization of water.” [Emphasis added.]
The purported “catch-all” phrase, “similar public corporation,” cannot extend to sanitary districts for the agencies specifically listed either do not possess attributes similar to such districts or are concerned with serving a different purpose. It is conceded that the general phrase may embrace only such agencies as have characteristics common with the ones named. It is not contended that a sanitary district is similar to or belongs in the same class as the state, a county or municipal corporation. The common quality of all of the other named agencies, with the possible exception of municipal utility districts, has to do with the conservation and distribution for use of water, a vital resource of the state. A sanitary district, on the other hand, is primarily concerned with the disposal of sewage, a subject pertaining to the public health. Only incidentally is it interested in water control, that is, disposal of drainage waters which is naturally pertinent to its function for it may use the same facilities for both sewage and flood waters.
It is spurious thinking to reason, as does the majority, that all the agencies above named have the common general factor of public health. In a very general way there may be a connection with health, but at most it is remote. The main and primary function still remains—the conservation and use of water.
Further, in connection with storm or drainage waters, the majority opinion refers to the fact that municipal utility districts may, like sanitary districts, maintain sewage systems, but that is a similarity common as between only one of the named agencies and such district. The rule requires a common primary similarity applicable to all. The control of storm waters by the named agencies is for the purpose of conserving [853]and using water. That is the chief purpose. Even if protection of property is also a purpose, we have no similarity in sanitary districts whose main function is sewage disposal, the storm water factor being only incidental and not with the aim of conserving or utilizing water.
There are other public agencies which deal with the disposal of water. One of these is a mosquito abatement district, as it is a well known fact that mosquitoes breed in pools of stagnant water. It is the function of such a district to drain such pools or inoculate the water therein so as to eradicate the mosquito larvae. The obvious purpose of destroying mosquitoes is the conservation of public health—a very important function. Yet I seriously doubt if even the majority of this court would go the absurd length of holding that the framers of the amendment to the Constitution intended that a mosquito abatement district be given the power to take immediate possession of property it sought to acquire in connection with its abatement program. I can see no basis for distinction between such a district and the sanitary district here involved.
In addition to the obvious objection to amending the Constitution by judicial edict as the majority are doing in this case by including a sanitary district within the ambit of section 14 of article I of the Constitution, there are other reasons why public agencies not specifically empowered by the Constitution to do so should not be given the power to take immediate possession of private property before obtaining a final order of condemnation in an eminent domain proceeding and paying the amount of compensation and damages awarded by a jury. In this connection, we may take judicial notice that there are many public agencies which are limited in the amount of money available to them in the performance of the functions which they are authorized to perform. It is, therefore, not beyond the realm of probability that such an agency may take immediate possession of property upon a preliminary showing of value and not be able to respond in the amount of compensation and damages which will subsequently be awarded by the jury in the trial of the eminent domain proceeding. In such event, the public agency would have the property without the payment of the just compensation and damages to which the owner is entitled under both the federal and state Constitutions. In this connection, cases have come under my observation where the amount awarded by a jury as compensation and damages for property taken has exceeded [854]by many thousands of dollars the amount paid into court upon the granting of an order authorizing the taking of immediate possession. For this reason, it is obvious that the people of this state should have the opportunity to decide what public agencies should be given the power to take immediate possession of private property to be devoted to a public use under the supervision of such agencies. I think it is clear that the people of this state have not thus far expressed their willingness to confer such power upon a sanitary district and the holding of the majority to the contrary is a palpable distortion of the plain language used to express the intention of those who drafted the 1934 amendment and the voters who adopted it.
While I believe in liberal construction of constitutional and statutory provisions which seek to promote the public interest and welfare, I do not believe in resorting to judicial legislation to accomplish this result.
I would, therefore, deny the writ pf mandate sought in this proceeding.
Schauer, J., concurred.