REPORTS OF CASES

DETERMINED IN

THE SUPREME COURT

APRIL TERM, 1877.

[No. 5,588.]

THE SPRING VALLEY WATER WORKS v. THE CITY AND COUNTY OF SAN FRANCISCO.

WRIT OF PROHIBITION NOT TO ARREST LEGISLATION. The writ of prohibition ought not to issue to arrest the progress of any legislation pending in a board authorized by the laws to legislate with respect to matters of public interest.

SAN FRANCISCO v. SPRING VALLEY WORKS (48 CAL. 493) EXPLAINED.- In San Francisco v. Spring Valley Water Works, 48 Cal. 493, it was decided that the Spring Valley Water Works was formed under the General Law of 1858, and that its rights, duties, and obligations were derived solely from that law.

IDEM.- In San Francisco v. Spring Valley Water Works it was also decided that, by reason of the provisions of the General Law of 1858, there are purposes for which water is furnished by the Spring Valley Water Works, for which the city and county is bound to pay the legal rates.

IDEM. Also, that the Spring Valley Water Works is bound to furnish water to the city and county free of charge "in case of fire or other great necessity."

DUTY OF SPRING VALLEY WATER WORKS.- Primarily, it is the duty of the the men, Spring Valley Water Works to furnish to all the inhabitants women, and children of the city and county (the rates fixed according to law being paid) water for family uses; being water for drinking, lavation, for domestic animals, and for other like domestic uses. IDEM. For water furnished for such

family uses to those of the inhabitants to whom it is the duty of the city and county to provide all or as prisoners and the occupants of charisome of the necessaries of life

table and educational institutions the city and county is bound to pay the rates established in accordance with law.

IDEM. The Spring Valley Water Works are not bound to furnish water for

Statement of Facts.

any other purposes, unless the obligation is imposed upon that Company by the clause of the statute which requires water companies to furnish water to the city and county "in case of fire or other great necessity, free of charge."

IDEM. It is the duty of the Company to furnish water free of charge for fires, and this includes the furnishing of water free for engines and engine houses. IDEM.-The water is to be furnished to the inhabitants for family uses on

"

payment of rates; to the city and county government free for all purposes for which it may be necessary and proper in the exercise of its police and governmental functions, being for other purposes than the "family uses of individuals to whom the city and county is under obligation to furnish water.

IDEM. The word 64

great in the statute does not qualify the word “necessity," so as to limit the furnishing of water free to cases of rare and casual demands. CONSTRUCTION OF FRANCHISE.- Larguage in a statute conferring francaises on a corporation, which is not free from doubt, is to be construed to tre benefit of the public rather than to that of the corperation.

DUTY OF SPRING VALLEY WATER WORKS. Since, by the terms of the statute, the corporation is entitled to charge only for water supplied for "family uses," there is no hardship in compelling it to furnish the city and county "to the extent of its means," free of charge, all water necessary for watering streets, public squares and parks, for flushing sewers, and for all like purposes beneficial to the public, and in aid of the health and good government of the people of the city and county.

This was an original application to the Supreme Court for a writ of prohibition. The petition represented that the Supreme Court in Spring Valley Water Works v. City and County of San Francisco, 48 Cal. 493, had decided that the applicant was not bound in law to furnish water free to the respondent except for "fire or other great necessity," which did not include ordinary municipal purposes; and that, notwithstanding such decision, the Board of Supervisors of the City and County of San Francisco had passed to print, and were threatening to finally pass an ordinance commanding the Mayor to cause connections to be made with the pipes and mains of petitioner for the purpose of taking water for the city for ordinary municipal uses, without paying therefor. That the ordinance authorized the Mayor to call to his assistance, if necessary, the police force of the city and county, against whom the petitioner would be powerless. That the passage of the said ordinance was an act in excess of the jurisdiction of the Board. The prayer of the petition was for a writ of prohibition, commanding the respondents and all persons acting under them to desist and refrain from interfering

Argument for Petitioner.

with the petitioner in the exercise of its right to cut off, and in cutting off, the water from its mains or pipes from any place where the same is taken for ordinary municipal purposes, except for the extinguishment of fires, unless the respondent should first make arrangements to pay therefor; and from any and all attempts to make connection with the pipes and mains or works of petitioner for the purpose of taking water therefrom without the knowledge and consent of petitioner, and to desist and refrain from passing any ordinance authorizing or empowering the Mayor or any other officer or person to make such connections for such purposes, except for the extinguishment of fires, without the consent of petitioner. [For copy of the resolution and ordinance, see post, p. 134.]

The respondent, at the time appointed to show cause why the writ should not issue, answered that the petitioner was by law in duty bound to furnish water for all municipal purposes free of charge, and having cut off connections with the water mains at places where water was needed by the respondents, it was the duty and within the power of the respondents to restore the connection and take the water. [For further litigation on this subject, see post, pp. 126, 132.]

Charles N. Fox, Lloyd & Newlands, and J. P. Hoge, for the Petitioner.

1. The writ of prohibition, under our statutes, is the counterpart of mandamus (Code of Civil Procedure, secs. 1102, 1103); it may be issued to an inferior tribunal, corporation, board, or person, and it arrests such proceedings as are without or in excess of the jurisdiction of such tribunal, corporation, board, or person. Mandamus is not confined to judicial acts, and prohibition, its counterpart, is not confined to the restraint of judicial acts only. In Fox v. Board of Supervisors, 49 Cal. 563, the Supreme Court issued the writ of prohibition to the Board of Supervisors of San Mateo County, to prohibit them from calling an election, which is not a judicial act.

So also as to certiorari. (Robinson v. Board of Supervisors of Sacramento, 16 Cal. 208; People v. Supervisors of El Dorado

VOL LII-8

Argument for Petitioner.

County, 8 Cal. 58; Murray v. Supervisors of Mariposa County, 23 Cal. 494; Miller v. Supervisors of Sacramento, 25 Cal. 93; Keys v. Marin County, 42 Cal. 253; City v. Albright, 20 N. J. L. 645; State v. Jersey City, 29 N. J. L. 170; State v. City of Paterson, 34 N. J. L. 163.)

2. It has been adjudged by this Court that the petitioner is under no obligation to furnish water to the city free of charge, except for the extinguishment of fires. (San Francisco ▼. Spring Valley Water Works, 48 Cal. 514.)

This case is, therefore, res judicata. In the case cited, it was admitted that if plaintiff was entitled to water free of charge, she was entitled to the injunction. This Court held she was not so entitled to the water, and the injunction was, therefore, denied. All the merits of this question of free water for the city were squarely before the Court, with the grounds upon which the claim was based; the judgment was rendered on the merits, and now the parties" cannot canvass the same question again in another action, although, perhaps (and even if) some objection or argument might have been urged upon the first trial, which would have led to a different judgment." (Freeman on Judgments, sec. 249.)

3. The purposes for which the city claims this water are purposes of ordinary daily use purposes of such a character that the city is bound to anticipate the necessity for a supply, and prepare itself to meet that necessity. That the water for those purposes is a necessity no one will deny; that it is a " great necessity" within the meaning of the statute upon which the counsel for the city relies, seems to us a proposition too absurd for argument. The necessity may be great, but if it is constant, frequent, or regular, so that it can be anticipated and provided for, it does not come within the purview of that statute, or justify the city in violating that fundamental law of right, which Mr. Cooley, in his excellent work on Constitutional Limitations, says stands above constitutions the right to acquire, have, possess, and enjoy property. (Cooley on Constitutional Limitations, secs. 36, 354.)

Argument for Respondent.

W. C. Burnett and John F. Swift, for Respondent.

1. The writ of prohibition is a prerogative writ, whose only office is to restrain subordinate Courts and inferior judicial tribunals from exceeding their jurisdiction. (Quimbo Appo v. The People, 20 N. Y. 540; Thomas v. Mead, 36 Mo. 232; Washburn v. Phillips, 2 Metc. 296; People v. Supervisors of Queens County, 1 Hill, 200.)

2. The litigation had in The City and County of San Francisco v. The Spring Valley Water Works, 48 Cal. 493, left the question of great necessity open. It is not an estoppel in this case to the claim of the city for water free for ordinary municipal purposes.

The claim of the city in that suit was that she was entitled to water free of charge for all municipal purposes, and the object of that suit was to "restrain the Spring Valley Company from cutting off from the plaintiff the supply of water flowing in the pipes of the defendant, and used by the plaintiff for municipal purposes and uses." The theory of the city's case, then, was that she was entitled to the water under Order No. 46 from the Spring Valley Water Company as successor in interest to the Bensley Company. The Water Company in their answer stood squarely upon the Ensign Act and the San Francisco Water Works Act as modified by the effect of the special grant to Ensign and his associates under the Ensign Act. The case was tried in the District Court, and judgment was rendered for the defendant, when the plaintiff appealed to the Supreme Court, where the judgment was reversed on the ground that under sec. 3 of the Ensign Act it was not the duty of the Water Company to furnish water free to the city except for the extinguishment of fires during the pendency thereof, until the introduction of water by another company, which conditions did not appear from the complaint to have happened. (See 39 Cal. 474.) In point of fact the contingency had happened, and the pleader only was at fault. When the case came back the complaint was amended, and the necessary allegation introduced. Then a trial was had, but the Court decided again for the defendant. Another appeal was taken, and the Supreme Court