UNIVERSITY OF CALIFORNIA AT LOS ANGELES ROBERT ERNEST COWAN No. 5588. No. 5634. I3SJ- THE SUPREME COURT, OF THE STATE OF CALIFORNIA. vs. The City and Co. of San Francisco. THE SPRING VALLEY WATER WORKS ; vs. A. J. BRYANT, MAYOR, ETC., ET ALS. PETITION for REHEARING. CHARLES N. FOX, Attorney for Petitioner. ]. P. HOGE, OF COUNSEL. Filed Clerk. JOS. WlNTERBtJKN & Co., PRINTERS, 417 CLAY STREET. 57 NOTE. The first forms of this petition were printed as for the case No. 5588 alone, the inten- co ? tion being to file a separate petition in No. 5634; >f but the principles of the two cases were so nearly * ' blended, that we subsequently determined to . argue both in the same petition, as was done at the oral argument. We ask the Court, therefore, to treat this as a petition in both cases. OHAS. X. FOX. 361569 No. 5588. II THE SUPREME COURT OK THE STATE OF CALIFORNIA. THE SPRING VALLEY WATER WORKS i THE CITY AND COUNTY OF SAM FRANCISCO, j PETITION FOR REHEARING. In presenting a petition for rehearing in this cause on behalf of the Spring Valley Water Works, it is riot done so much with the hope, or even desire, to procure a reversal of the real judgment recently rendered by the Court, quash- ing the writ, and ordering the proceeding dismissed (which is a matter of little consequence to either party), as to secure a correct interpretation of the words of the statute requiring the petitioner to furnish water to the City free of charge, "in case of fire or other great necessity." Both parties have united in asking the Court to interpret these words, and when there shall be a final adjudication as to their meaning, and the force of the statute which attempts to impose that obligation, both parties are disposed to abide by such judgment, without fur- ther litigation on the subject. For these reasons, although perhaps a review of the decision, so far as it bears upon that subject, will not result in an actual change of the order of the Court in reference to the writ, we feel impelled to ask the Court to reconsider its opinion, so far as it relates to the construction of these words, and whether they still are open to construction, and the force of the statute in which they are found. I. RES JUDICATA. We claimed at the argument, that so far as re- lates to any purpose for which the city is claiming or using water at this time, the question of whether she was entitled to such water free of charge, on the ground that it came within the meaning of the term "other great necessity" had been adjudged and determined by this Court in the case of The City of San Francisco vs. The Spring Valley Water Works, decided in the 48th of Cali- fornia Reports, at page 493 etseq. and is res judicata. We respectfully submit, that by a long line of decisions, uniform in their character, and by the rules of interpretation in which every law student is educated, we were justified in presenting this claim, arid relying with confidence upon its being sustained. While the Court, in its recent opinion, does not say so in so many words, it seems to treat this plea of resjudicata as purely technical and odious. In some sense, we may say that the whole science of law is technical, but it is not, for that reason, odious. The plea of res judicata is but a plea of estoppel by a former judgment between the same parties. The question of whether such a plea is odious or not has been passed upon by many Courts and jurists of such acknowledged learning and ability that the profession have come to look upon their determinations as furnishing a safe guide in counseling, and in dealing with the in- terests of, their clients. So respectable an authority as the Supreme Court of the United States, in Aurora City vs. West (7 Wall., 82), in speaking upon the subject, uses these words: "The doctrine of estoppel by a for- mer judgment between the same parties is one of the most beneficial principles of our jurisprudence, and has been less affected by legislation than almost any other/' In Van Rensselaer vs. Kearny, 11 How. U. 8. S. K., at page 326, the same Court, in speaking of the doctrine of estoppel, says: '' The doctrine is founded, when properly applied, upon the highest principles of morality, and recommends itself to the common sense and justice of every one; and although it debars the truth in the particular case, and therefore is not unfrequently characterized as odious and not to be favored, still it should be remembered that it debars it only in the case where its utterance would convict the party of a previous falsehood ; would be the denial of a previous affirmation upon the faith of which persons had dealt and pledged their credit or expended their money." Mr. JUSTICE COOLEY, confessedly one of the ablest jurists and most distinguished law writers of the present day, in his work on Constitutional Limitations (page 47) says: "A decision once made in a particular controversy by the highest Court empowered to pass upon it, is conclusive upon the parties to the litigation and their privies, and they are not allowed afterwards to revive the contro- versy in a new proceeding, for the purpose of raising the same, or any other questions. The matter in dispute has become res judicata; a thing definitely settled by judicial decision, and the judgment of the Court imports absolute verity. Whatever the question involved whether the interpretation of a private contract, the legality of an individual act, or the validity of a legislative enactment the rule of finality is the same. The controversy has been adjudged, and, once finally passed upon, is never to be renewed" And this great student cites in support of the strong language just quoted, a list of authorities, which, when verified as we have verified it, would seem to justify counsel in advising their clients that this Court would prob- ably adhere to the rule there laid down. Among them are the following: Duchess of Kingston's Case, 2 Smith's L. C., 434 Etheridge vs. Osborn, 12 Wend., 399. Hayes vs. Reese, 34 Barb., 151. Hyatt vs. Bates, 35 Barb.. 308, Harris vs. Harris, 36 Barb., 88. Young vs. Black, 7 Cranch., 567. Chapman vs. Smith, 16 How., 114. Wales vs. Lyon, 2 Mich., 276. Prentiss vs. Holbrook, 2 Mich., 372. Van Kleek vs. Eggleston, 7 Mich., 511. Newberry vs. Trowbridge, 13 Mich., 278. Crandall vs. James, 6 R. I., 144. Babcock vs. Camp, 12 Ohio (N. S.), 11. Warner vs. Scott, 39 Tenn. St., 274. Kerr vs. Union Bank, 12 Md., 396. Eimer vs. Richards, 25 111., 289. Wright vs. Leclaire, 3 Iowa, 241. Whitaker vs. Johnson County, 12 Iowa, 595. Peay vs. Duncan, 20 Ark., 85. Maddox vs. Graham, 2 Met (Ky.), 56. George vs. Gillispie, 1 Greene (Iowa), 421. Clark vs. Sammons, 12 Iowa, 368. Taylor vs. Chambers, 1 Iowa, 124. Skelding vs. Whitney, 3 Wend., 154. Hawkins vs. Jones, 19 Ohio (N. S.) 22. Slade vs. Slade, 58 Me.. 157. Geary vs. Simmons, 39 Cal., 224. Cannon vs. Brame, 45 Ala., 262. Dwyer vs. Goran, 29 Iowa, 126. Verner vs. Carson, 66 Penn. St.. 440. Aurora City vs. West, 7 Wall., 82. Harris vs. Colquit, 44 Geo., 663. Finney vs. Boyd, 26 Wis., 366. "The rule of conclusiveness," continues Mr. COOLEY, "to this extent, is ONE OF THE MOST IN- FLEXIBLE PRINCIPLES OF THE LAW ; insomuch that even if it were subsequently held by the Courts that the decision in the particular case was erro- neous, such holding would riot authorize the re- opening of the old controversy, in order that the final conclusion might be applied thereto." And upon this he cites : McLean vs. Hugarin, 13 Johns., 184. Morgan vs. Plumb, 9 Wend., 287. Wilder vs. Case, 16 Wend., 583. Baker vs. Rand, 13 Barb., 158. Kelly vs. Pike, 5 Cush., 484. Hart vs. Jewett, 11 Iowa, 276. Colburn vs. Woodworth, 31 Barb., 381. Newberry vs. Trowbridge, 13 Mich., 278. Skilden vs. Herrick, 3 Wend., 154. Brockway vs. Kinuey, 2 Johns., 210. Platner vs. Best, 11 Johns., 530. Phillips vs. Berrick, 16 Johns., 136. Page vs. Fowler, 37 Cal., 100. In the last of the cases just cited, Mr. Justice CROCKETT, speaking for this Court, uses this lan- guage: " The legal propositions which arose and were decided on the former appeal, whether they were correctly decided or not, ham become the law of the case, so far as they were applicable to the facts developed on the second trial. There would be no end to the litigation, if the same questions in the case once decided by the Appellate Court were open to examination on every succeeding appeal. It has been so often decided by this Cow t that, on a second appeal, we will not re-examine the legal propositions de- cided on the first, as to render the citation of authorities unnecessary." With such a decision as that before us, coming from our own Court, we did not think it necessary to go into an elaborate argument of this branch of our case, at the former hearing. That decision is in strict conformity with an unbroken line of au- thorities, running back so far that " the memory of man runneth not to the contrary;" neither doth the record of the books. Even in the Duchess of Kingston's case, decided in 1776, their Lord- ships cite the rule as an old and familiar one. In fact, the rule is elementary, and we feel that we need not further discuss it, but proceed now to inquire: II WHAT WAS DECIDED IN THE FORMER CASE? This ought not to be a matter of difficult solu- tion. The question is, what did the plaintiff in 8 the former suit (defendant in this) claim, and what did the other party deny? Upon the issue thus formed, what was the judgment of the Court ? It makes no difference upon what ground, either of law or fact, either party asserted its right. Both parties were bound to present their whole case to the Court, and if either did not, it was his own fault, and he must forever afterwards abide the consequences. After judgment- on the merits, the parties "can- not canvass the same question again in another action, ALTHOUGH, PERHAPS, SOME OBJECTION OR ARGUMENT MIGHT HAVE BEEN URGED UPON THE FIRST TRIAL which would have led to a different judgment." Greathouse YS. Bromley, 7 T. K., 456. " An adjudication is final and conclusive, not only as to the matter actually determined, hit as to every other matter which the parties might have litigated and have had decided as incident to, or essentially connected with, the subject matter of the litigation, and every matter coming within the legitimate purview of the orig- inal action, both in respect to matters of claim and defense." Haaris vs, Harris, 36 Barb., 88. Clemens vs. Clemens, 37 N. ., 59. Even " the discovery of new evidence, not in the power of the party at the former trial, forms no exception to the rule in relation to estoppels, whether the second action is at law or in equity." Lessee of Rhodes vs. Selin, 4 Wash., C. C., 716. 9 It seems to us that the issue in the former case is as clear as the noon-day sun. The Water Com- pany threatened to cut off the supply of water for all the purposes for which the city was then using the same, except the extinguishment of fires, unless the City would make arrangements to pay for the same. The City then brought suit to en- join the Company from carrying that threat into execution, and, as a cause of action, asserted the making of this threat, and that the municipality was entitled to the water threatened to be cut off, free of charge. The Company admitted the threat, but denied the allegation that the city was en- titled to the water free of charge. The Court seems to be under the impression that in the former suit the issue was limited to the question whether the city was entitled to said water free of charge, under the provisions of the Ensign Act alone that it based its claim upon that act only, and that the company defended only on the ground that the Ensign Act was unconstitu- tional. If this were true, the judgment would be none the less res judicata, under the decisions which we have cited, and which might be multi- plied ad libitum, for the reason that no party will be permitted to impose upon a Court the duty of determining the question of its right upon any- thing less than all the law and all the facts as they then existed. Parties cannot litigate their rights piecemeal. Otherwise the very object of establishing Courts of Justice would be defeated by the Courts themselves. Mr. Freeman in his 10 work on Judgments, Section 247, quoting from Justice, Willes in G. N. B. R. Co. vs. Mossop (17 C. B. 140), says: ''The very object of instituting Courts of Justice is that litigation should be decided, and decided finally. That has been felt , by all jurists. It is long since a reason has been assigned why judgments should be considered final, and should not be ripped up again ne lites sent immor- tales, dum litanies sunt mortales. Human life is not long enough to allow of matters once disposed of being brought under discussion again ; and for this reason it has always been considered a funda- mental rule, that when a matter has once become res judicata, there shall be an end to the question." But it is a mistake to suppose that the issue of free water was presented on any such narrow plane. By reference to the record in the former case, it will be seen that the complaint set out, at folio 3 of the transcript, that the Spring Valley Water Works, defendant, was incorporated under the ''Act for the Incorporation of Water Companies," approved April 22, 1858 the very act under which it now claims to derive its powers, and in which alone tlu Court held that its duties and obligations were found; that it had become the owner of the franchise granted to Ensign by the act commonly called the "Ensign Act;" at folio 11, that it had become the owner of the property and franchises of the San Francisco City Water Works, a corporation which the complaint sets out had acquired certain privileges, and was un- der certain obligations, by virtue of certain ordi- 11 nances of the Board of Supervisors; then at folio 19 we find the following: " The plaintiff is advised and believes, and charges the same to be true, that under and by force and virtue of the said several Acts of the Legis- lature of the State of California, and orders and ordinances of the Board of Supervisors aforesaid, and upon the facts and premises in this complaint hereinbefore set forth, it has become, and is, the duty of the defendant to furnish, and, ever since the loth day of February, A. D. 1865, the said de- fendant has furnished to the plaintiff all necessary water for the extinguishment of any fire, and for all other municipal purposes within the limits of the said City and County of San Fjancisco, to the full capacity of the works held and controlled by said defendant, free of charge to the plaintiff, and that the Chief Engineer of said City and County of San Francisco (this plaintiff) has, under the direction of the Board of Supervisors, the right to tap the pipes of the defendant laid down in said City and County, for the purpose of conducting water, and to connect hydrants therewith, and re- ceive water therefrom for all said purposes, free of charge." Thus, in its complaint, the City fairly presented its right to free water, not only under the " Ensign Act," but under all the laws of the State, and ordi- nances of the City. Tt referred to the general Act, and specially set out the special Act and the City Ordinances. At folio 22 it declares the water 12 to be " indispensable to the plaintiff, to the good order, government, health and general security of the city," and that to be deprived of it would subject it to "great damage and destruction by fire, and would injuriously affect the cleanliness of the City and County, and the health of the in- habitants thereof, and would greatly injure and obstruct the Almshouse, the Hospitals, Industrial School, and other public institutions of the said City and County of San Francisco;" thus showing the purposes for which the water was then used and claimed. To the issue thus tendered, the defendant; this petitioner, after denying that the City was entitled to water free of charge under the several special grounds claimed in the complaint, making a dis- tinct issue upon every one of them, at folio 55, makes this full denial: " These defendants deny, upon and according to their information and belief, that under and by force and virtue of ANY Act or Acts of the Legisla- tive of the State of California, or of any order or or- ders, ordinance or ordinances of the Board of Su- pervisors aforesaid, or for any other cause, vihatever, it has become, or is the duty of these defendants, to furnish to plaintiff all water necessary, or any water, within the limits of said City and County or elsewhere, to the full capacity of the works held and controlled by these defendants, or to any extent whatever, free of charge, to plaintiff; for all municipal purposes, or for any municipal or other 13 purpose whatever, except for the extinguishment of fires during the pendency of the same." And this was followed b}^ a denial of having furnished the same, and an averment that the City had been taking it without the consent or permis- sion of the Company. The answer contained full denials of every averment of the complaint upon the subject of its right to water free of charge, except for the extinguishment of fires. Thus it will be seen that the broad issue was presented in the pleadings, whether the City was entitled to water free of charge from the pipes of the Com- pany, or whether the Company was bound to fur- nish the same free of charge, for any purpose other than the extinguishment of fires. It was not limited as to the ground upon which, or the law under which, the claim was based, and no one of the grounds was ever afterwards withdrawn from the consideration of the Court. It therefore matters not upon what ground, or upon what statute, counsel may have relied at the argument the issue tendered by the pleadings was the one to be decided, and the one which, we submit, was decided. If the right existed, the remedy was confessed, and the Court accepted that confession. The argument at the hearing in 1870 was con- fined mainly to a consideration of the duties and obligations of the company, and the rights of the city, under the ordinances of the Board of Super- visors, and the ''Ensign Act." But that fact did not take out of the case the question of those 14 duties, obligations and rights, under the general law, which was just as much involved in the plead- ings and the issues made up, as any other. At the first hearing on the second appeal, the argu- ment was confined to the question of those duties, obligations and rights, under the "Ensign Act," in view of the admitted fact that water had been introduced by some other company; but, on the rehearing, the proposition was fairly presented that the " Ensign Act" was unconstitutional and the only duties and obligations of the company, and rights of the city, were those prescribed by the general law of 1858, under which the com- pany was incorporated. This proposition, the Court sustained, and then, if never before, it be- came necessary, to a determination of the case, to determine what those duties, obligations and rights were under this general law, and it was also com- petent for the Court to determine the question, for it was directly within the issue made up by the pleadings. With such pleadings, the argument so presented, the purposes for which the water was being used, which was threatened to be cut off, and the fact that it was " indispensdbk" to the city, all set out in the pleadings, the Court gives its judgment, de- nying the injunction refusing to enjoin the com- pany from executing its threat, either in whole or in part. If it was not absolutely necessary for the Court to determine the question whether the city was 15 entitled to water free of charge for any of the purposes for which she was then using the same, and which came within the purview of that threat (and that included all the purposes for which she was then using the same, except the extinguish- ment of fires), we confess ourselves unable to see what was necessary to be determined. There is no other way the judgment could be reached. Falling back upon the general law, and treating that as a valid law, it necessarily determined that the company was bound to furnish water free of charge, in "case of fire or other great necessity," but it just as necessarily determined that the pur- poses for which the city was then using water, other than for the extinguishment of fires, though "indispensable to the city," did not come within the term "other great necessity." Had it, or any portion of it, come within that term, the injunc- tion must have been granted as to such portion. The Court had before it in the pleadings a state- ment as to what the water was used for, and also a declaration that it was even more than a " great necessity" that it was " indispensable." The Court held that the company was bound to fur- nish water free of charge, "in case of fire or other great necessity;" and on deciding a petition for rehearing filed on behalf of the city, reiterated this holding, even in stronger language, and yet decided that we had a right to cut off the water for all purposes for which the city was then using the same, except the extinguishment of fires. If this is not holding that the purposes for which she was then using the water did not come with- 16 in the term ''other great necessity/' it is difficult to determine what the holding was. The direct and ONLY issue in the case was whether the city was entitled to water free of charge from the pipes of the defendant for the purposes for which she was then using the same, other than the extinguishment of fires, and the remedy sought was injunction to restrain the company from cutting it off. The company acknowledged that if she was entitled to the water free of charge, she was entitled to the injunction. The Court could not have denied it upon any other ground than that she was not entitled to the water free of charge, or that injunction was not the proper remedy, and it die not deny it on the latter ground. Under the decisions of this Court, there can be no question that so far as relates to the purposes for which the city was then using the water, the matter is res judicata. Jones vs. Petaluma, 36 Cal, 230. Clark vs. Boyreau, 14 Cal., 634. Jackson vs. Lodge, 36 Cal., 28. Jiarnum vs. Reynolds, 38 Cal., 643. Amesti vs. Castro, 49 Cal., 325. Phelan vs. Gardner, 43 Cal., 306. Wetmore vs. San Francisco, 44 Cal., 294. Hosraer vs. Wallace, 51 Cal., 368. In this case, there is no pretense of either new law or new facts which did not exist at the time of the former judgment. 17 But the Court says " it was adjudged in the former case that the company was bound to fur- nish water free of charge for some purposes." Granted. But it was only " in case of fire or other great necessity." The Court did not deter- mine what purposes might be included within the term '" other great necessity," but if there is any- thing in the decisions to which we have referred, and in the rule of law which is so old that it has become elementary, it did determine that none of the purposes then under consideration came within that term. The very language adopted by the Court shows that it understood at the time, that it was passing upon the rights and duties of the parties under the general law. At pages 514- 15, the Court says-. " TESTED BY THE GENERAL LAAV under which the defend- ant was organized, it is under no obligation to furnish water to the City and County free of charge, except^ie ajdinguishment of Jires during the pendency thereof." Thus it will be seen that by the pleadings the Court was called upon to pass upon the question under the general law, and by the positive statement of the Court it did so pass upon the question. On the faith ^of this decision, the parties have acted ever since. Millions of dollars have been invested on the faith of the rule of law thus established almost the entire stock of the corporation having changed hands at advanced prices. True, the Court said, in other parts of the decision, and the statute so declares, that the company shall fur- nish water free of charge to the city " in case of 18 fire or other great necessity," and it was under- stood that possibly some other necessity might arise, beside fire, in which it might be called upon to furnish water free of charge, but certainly not for any of the ordinary purposes of the municipal- ity, like those for which she was then using the water. Xow, in this case, that former judgment is especially pleaded, and it is alleged that tlie pur- poses for which the City nmv claims the water fret of charge ARE THE SAME. AND NO OTHER, as the purposes for which she was claiming and using the water at the time of the bringing of that former suit, and of the rendition of the judgment; and that allegation is admitted. Ho'w can it be said that the question is not res judicata. But if the Court shall still adhere to the prop- osition that this is still an open question, so far as it relates to the purposes for which the city was then and is now claiming water free of charge, then we ask the Court to reconsider the ques- tion of IH-WHAT IS MEANT BY THE TERM " IN CASE OF FIRE OR OTHER GREAT NECESSITY." And we confess that we come to the discussion of this question at this time with some trepida- tion; first, because we feel an abiding conviction that so far as this case is concerned, it ought not to be an open question ; and second, because the Court, while it has kept in view one rule of con- 19 struct/ion, upon which the authorities are not en- tirely uniform, namely, that where there is a doubt as to the interpretation of a statute granting fran- chises, the doubt shall be resolved in favor of the public, it seems to us to have overlooked that other, more pregnant and more uniform rule, that statutes shall be so construed, if possible, as to give force and effect to every part and every word of which they are composed. When the Court strikes out from the statute the word "great," and then interprets the balance to mean "all the neces- sities of Local Government," we cannot help but feel that it has overlooked the rule above referred to, and gone far toward changing the law itself. "A statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence or word should be superfluous, void or insignificant." Potters Dwarris on Stat. and Con., Ed. 1871, p. 1 10, citing 1 Show, 108; R. vs. Burchett, Hard., 344. And this Court has not been entirely silent in the assertion of the same rule. "A statute should be so construed as to give effect and meaning, if possible, to every clause and word contained in it." Souter vs. The Seawitch, 1 Cal., 162. Chever vs. Hayes, 3 Cal., 471. San Francisco vs. Hazen, 5 Cal., 169. People vs. Waterman, 31 Cal., 412. 20 Appeal of N. B.and Mission R. R. Co., 32 Cal., 499. Langenous vs. French, 34 Cal., 92. Gates vs. Salmon, 35 Cal., 516. Appeal of S, 0. Houghton, 42 Cal., 35. People vs. Southwell, 46 Cal., 722. Justice Crockett, in Corey vs. Hyde, 49 Cal., 469. To the same effect are the following decisions of other Courts: United States vs. Warner, 4 McLean. 463. United States vs. Bassett, 2 Story C. Ct, 389. Ogden vs. Strong, 2 Payne, 584. United States vs. Ragsdale, 1. Hempst., 497. Bartlett vs. Morris, 9 Port. (Ala.), 266. Farrell Foundry vs. Dart. 26 Conn., 376. Pearce ve. Atwood, 13 Mass., 324. Doane vs. Phillips, 12 Pick., 223. Leversee vs. Reynolds, 13 Iowa, 310. Opinion of the Justices, 22 Pick., 571. James vs. Dubois, 16 N. J. L. (1 Harr.), 285. Hutchin vs. Niblo, 4 Blackf. (Ind.), 148. Gee vs. Thompson, 11 La. Ann., 657. Lacy vs. Moore, 6 Caldu. (Penn.), 348. Nichols vs. Halliday, 27 Wis., 406. Hagonbuck vs. Reed, 3 Neb., 177. A volume might be filled with simple references to the cases in which the same principle is laid down. 21 It can hardly be possible that the law maker intended to require water companies, organized under this general law, to furnish water free of charge for all municipal purposes, as distinguished from family uses, as now declared by the Court. If such had been the intention, the Legislature, instead of saying: "in case of fire or other great necessity." would have used language about which there could be no doubt, and said, as it said in the "Ensign Act," passed, as shown by the journals of the Legislature, one day before the general law, although not approved until one % day after: "for tire and other municipal uses." Legislatures are to be presumed to say what they mean After providing what the duties and rights of the com- pany should be in reference to water for "family uses," if it had intended to require the company to furnish water free for all municipal purposes, it would have been the simplest thing in the world to say so. That it intended to do less than that is manifest from the fact that it used language of limitation language which, to make it mean that, requires both emasculation an interpretation. The Legislature, in framing this provision of our law, have not resorted to technical language, but have used the common language of every day life. While it is the duty of the Court, if possible, to give effect to every word so used, and not to strike out any of them, the Legislature has also declared how they shall be construed. In the Civil Code, Sec. 13, and the Code of Civil Proceedure, Sec. 16, it is provided : 22 " Words and phrases are construed according to the context, and the approved usage of the language." We can hardly conceive that it is construing the words and phrase "in case of fire or other great necessity,'' according to the context, and the ap- proved usage of the language, to strike out the word "great" altogether, and say that the phrase means "in case of fire, and for all other purposes for which it may be demanded by the authorities of the City and County in the discharge of their direct duties as governmental agents;'' or, as is said in another place, such uses "as are incidental to the direct employment by the municipaUty of its Govermental or police powers, as distinguished from the family uses of a portion of its inhabit- ants." Nor is this provision of the codes in conflict with, but rather declaratory of, the law as it had before been adjudged in numerous decisions. "Words of a statute, not technical, are to be construed according to their common acceptation/' Quigley vs. Gorham, o Cal., 418. Gross vs. Fowler, 21 Cal., 392. Sprague vs. Norway, 31 Cal., 173. Appeal of S. 0. Houghton, 42 Cal., 35. Maillard vs. Lawrence, 19 How., 51. Wigg vs. The United States (Ct. of Claims). Dev., 157. Beatty vs. The United States, In., 157. 23 Chase vs. The United States, Ib., 158. Schreifer vs. Wood, 5 Blatchf., 215. Canal Co. vs. Schroeder, 7 La. Ann., 615. Parkinson vs. The State, 14 Md., 184. Green vs. Weller, 32 Miss., 650. Mayor of Wetumpka vs. Winter, 29 Ala., 651. Favers vs. Glass, 22 Ala., 621. Engelking vs. Van Wamel, 26 Texas, 469. Bailey vs. The Commonwealth, 11 Bush (Ky.), 688. State vs. The Mayor of Patterson, 35 N. J. L., 197. " In the construction of a statute, words should never be supplied or changed, unless to effect a meaning clearly shown by other parts of the statute to carry out an intent somewhere ex- pressed." Lane vs. Sehomp, 20 N. J. Eq., 82. It can hardly be claimed that it is necessary to change the sentence here under consideration by striking out some words and substituting others, in order to carry out an intent shown in any other part of the Act. " Where the meaning of the words employed in a statute is plain, the Courts cannot qualify it by construction on the grounds of public policy. Still less can they introduce distinct exceptions." Hyatt vs. Taylor, 42 N. Y. 250. When the language of the statute is definite, and has a precise meaning, as we contend, and 24 will endeavor to show that this has, it must be presumed to declare the intent of the legislature, and conjecture, or other means of interpretation, cannot be resorted to, in order to restrict or ex- tend its meaning. Johnson vs. Hudson B. R. R. Co., 49 N. ., 455. People vs. Schoonmacher, 63 Barl)., 49. When the language of a statute is unambiguous.. Courts must enforce the Act as it reads; they can- not supply defects, or relieve inconveniences by construction. Benton vs. Wigware, 54 N. ., 226. Rosenplaenter vs. Rossele, 5t N. Y. 262. There is another reason why the language of this provision should be strictly construed. It is a provision in derogation of common law, and of common right; and one which has no parallel in any other statute in this State; in that it imposes a burden and obligation upon the citizen that of surrendering up a part, and it may be the whole, of the fruits of his industry, the property acquired by his labor and his capital, for the common good, and without compensation. This is a burden un- known to the common law, and not imposed by any statute of this State upon any citizens, or any corporation except water companies. We are aware that one of the Justices expressed surprise at this latter proposition, at the argument, but we believe it to be strictly true. We are unable to find any statute which imposes a similar obligation. 25 In other cases where similar use of streets is given, the duty of keeping them in repair, and of paying license for transacting business, and of paying taxes on the pipes or rails, and other property of the company laid in the streets, is imposed ; but all these duties are also imposed upon and per- formed by us. In no other instance is any portion of the property required to be surrendered up to public use. No person, corporation, or arm of the government is entitled to gas for any purpose, free of charge. No individual, officer or ward of the State, is en- titled to travel free upon our railroads, or to free transportation for freight; on the contrary it is a crime for a railroad company to carry any but its own employees free. This provision of the statute, then, being in derogation of common law, should be construed strictly, and the obligation imposed by it should not be enlarged by implication or construction. Hotaling vs. Cronise, 2 Cal., 60. Turner vs. Tuolumne Co. Water Co., 25 Cal , 400. Brown vs. Barry, 3 Ball., 365. Wick vs. The Samuel Strong, 6 McLean, 587. Sprague vs. Birdsall, 2 Cow., 419. Bridgwater and Utica vPl. JR. Co. vs. Robbins, 22 Barb., 662. Wright vs. Briggs, 2 Hill, 77. Millered vs. Lake 0., A. & N. Y. R. R. Co., 9 How. Pr., 238. McClusky vs. Cromwell, 11 N. Y., 593. 26 Melody vs. Keab, 4 Mass., 471. Gibson vs. Jenny, 15 Mass., 205. Commonwealth vs. Knapp, 9 Pick., 496. Wilbur vs. Crane, 13 Pick., 284. Lock vs. Miller, 3 Stew* & P. (Ala,), 13. Dwelly vs. Dwelly, 46 Me., 377. Burnside vs. Whitney, 21 N. Y., 148. Sullivan vs. La Crosse Packett Co., 10 Minn., 386. Smith vs. Moftat, I Barb., 65. Young vs. McKenzie, 3 Geo,, 31. Schuyler Co. vs. Mercer Co., 9 111., 20. Baily vs. Bryan, 3 Jones, N. C. L., 357. Sibley vs. Smith, 2 Mich., 486. Esterley's Appeal, 54 Pa. St., 192. Harrison vs. Leach, 4 W. Virginia, 383. Dewey vs. Goodenough, 56 Barb., 54. A power claimed in derogation of individual right ought not to be allowed upon doubtful con- struction merely at least not upon ambiguous words. Wright vs. Briggs, 2 Hill, 77. People vs. Lambier, 5 Denio, 9. Every statute derogatory to the rights of prop- erty, or that takes away the estate of the citizen, ought to be construed strictly. Sharp vs. Spier. 4 Hill., 76. Corwin vs. Merritt, 34 Barb., 371. 27 If any doubt exists as to the intention of the Legislature, the Courts, in construing their acts, should presume that they did not intend to take away individual or private property without just compensation to the owners. French vs. Kirkland, 1 Paige, 117. Statutes imposing duties upon subjects or citi- zens are to be construed most strongly against the Government, and in favor of the-subjector citizen, and their provisions are not to be extended by im- plication beyond the clear import of the language used. United States vs. Wiggleston, 2 Story, 369. The last decision applies with peculiar force to this case. Even if it be true, as announced in the opinions filed, that in statutes granting franchises, doubts are to be resolved in favor of the public, that rule applies only to such- doubts as arise in reference to what is granted ; not when the doubt is as to what is to be taken from the citizen; as to something not granted by the public, but which the public never had to grant, and which is pro- duced by the labor and the capital of the citizen. As in this case, in reference to the duty of the Company to surrender a portion of the property in which the State never had any interest, produced wholly by private capital. A close construction should be given to statutes which work forfeitures or confiscations of property. United States vs. Athens Armory, 35 Ga., 344. 28 A statute requiring gratuitous service of any class of citizens is against common right, and should receive strict construction. Webb vs. Baird, 6 Ind., 13. Even statutes providing for the taking of private property against the will of the owner by the pro- cess of condemnation, are in derogation of com- mon law, and must be strictly construed. Bensley vs. Mountain Lake Water Company, 13 Cal., 306. Sanford vs. Worn, 27 Cal., 171. Damrell vs. Supervisors ol San Joaquiu, 40 Cal., 15*. Trumpley vs. Bemerley, 39 Cal. , 490. Chambers vs. Satterlee, 40 Cal., 497. S. F. and A. W. Co. vs. Alameda W. Co., 36 Cal., 639. Curran vs. Shattuck, 24 Cal., 427. Smith vs. Davis, 30 Cal., 537. C. P. R. R. Co. vs. Pearson, 35 Cal., 247. Again, it is the duty of the Court to so construe the statute, if possible, in cases where there is such doubt about the language used as to need con- struction, as to make it constitutional. French vs. Teschmacher, 24 Cal., 524. People vs. Frisbie, 26 Cal., 135. Slack vs. Jacob, 8 W. Vs., 612. Attorney-General vs. City of Eau Claire, 37 Wis., 400. Duncome vs. Prindle, 12 Iowa, 1. 29 Iowa &c. Co. vs. Webster County, 21 Iowa, 221. Newland vs. Mars, 19 111., 384. Bigelow vs. West Wis. R. R. Co., 27 Wis., 478. Dow vs. Norris, 4 N. H., 17. Clark vs. Rochester, 24 Barb., 471. In view, then, of the principles of law govern- ing, and which ought to govern the Courts, in cases of this kind, we submit that the portion of the statute which declares that water companies " shall furnish water, to the extent of their means, to such city and county, or city or town, in case of fire or other great necessity, free of charge," are First To be construed according to the con- text, and the common usage of the language. Second It is to be construed strictly, and not enlarged or extended by implication. Third It is to be construed, if possible, so as not to make it come in conflict with the Consti- tution. And Fourth That, in the forming of the sen- tence, the words "or other great necessity," are meaningless, for the reason that they are too in- definite arid uncertain to be capable of construc- tion; that they neither enlarge or diminish what goes before; that the former decision, hereinbe- fore quoted, ending with the words " except for the extinguishment of fires, during the pendency 30 thereof," although not a correct quotation of the language of the statute, is a correct solution of all that it means. First The phrase shall be construed according to the context, and the approved usage of the language. And when we come to analyze this phrase in the light of that provision of the Codes, and of the decisions which we have cited, the first word that demands our especial attention is the word '''case.'" What position does it hold in the sentence framed by the law-maker ? and what does it mean in that position ? We find that the Latin of this word is casus. from cadere, to fall; to hap- pen; that which falls, comes, or happens. If the words u or other great necessity " mean anything, they are to be read as if the word -'case" was re- peated: " In case of fire, or in case of other great necessity." It means, then, "upon the happening of fire, or upon the happening of other great ne- cessity." Or, to make it still plainer, '* upon the happening of fire, or upon the happening of other event producing a great necessity." Not, as the Court would read it, '' upon the happening of fire. and for all other purposes for which it may be de- manded by the authorities of the city and county in the discharge of their direct duties as govern- mental agents." The authorities of the city and county mny demand it for a thousand purposes, not one of which befalls or happen*, but all of which are of daily and constant recurrence, or in other words, of perpetual existence. When we examine this word, there can be no doubt that the 31 only time when a company is required to furnish water free of charge, is upon the happening of some event producing an urgent necessity, for which provision could not be made in advance something out of the ordinary course; something which, if it could be anticipated as likely to hap- pen at some time, was still uncertain as to time, and as to the extent of the demand. This word case seems to us one of the controlling words in this sentence. While the Court has not ignored it, or stricken it out where it actually occurs, it seems to us that it has failed to see the force of the word, and also to have utterly stricken it out of the latter part of the sentence, where by the common usage of the language it is as much a part as if written there anew. The word great is also an important element in the construction of this sentence. The Court tells us that it adds nothing to the word " necessity," and is to be disregarded in that connection. While it strikes out the word, as being what in our judgment the law maker intended it to be, a ivord intensifying the meaning of the word "necessity" the Court retains it and construes it as a word of quantity. In other words, if we understand the Court rightly, it seems to hold that the question of free water does not depend upon the emergency which occasions the demand, but upon the quan- tity required to meet such demand. We confess that the word great is a word of quantity as well as o/ magnitude. But Webster 32 tells us that it is also frequently used as "a word of emphasis, or to intensify the meaning of the words with which it is associated." " Necessity" is not a word of quantity, but it is a word of urgency, and is frequently, and in the common usage of our lan- guage, intensified by prefixing ihe word "great," as in this instance. This was undoubtedly the sense in which the word was used by the law maker in this statute. The use of it in that sense is in strict harmony with the use of the other word case, and the two do not harmonize, if it is used in any other sense. But giving the sentence the construction given to it by the Court, strikes out not only the word " great.'' as being anything else than a word of quantity, but it also strikes out entirely the word necessity, and makes the duty to furnish water free of charge depend, not upon necessity, great or small, but upon " demand of the city authori- ties." And in explaining the purposes for which that demand may be made, and when made must be heeded, it has not only ignored both these words adopted by the legislature, but substituted in their place words of exactly an opposite mean- ing; requiring us to furnish water free of charge for purposes of ornamentation and luxury. If there is a decision in all the books which will jus- tify such a change, we confess that we have been unable to find it. Nor do we think that the maxim of /loscitur sociis can be ignored in the. construction of this 33 sentence. An illustration is given, of the kind of case, calamity happening, which will justify the public in demanding this property free of charge, and it seems to us clear that it is only in similar cases, upon the happening of a similar calamity, that it can be required of us to furnish the water free of charge. This view is borne out by the construction given to similar language in Mills vs. Baehr's executors, 24 Wend., 254. And by the principles established in Biggelow vs. Collamere, 5 Cush., 226. Wells vs. Castles, 5 Gray, 325. Second: It should be strictly construed, because it is in derogation of common law, and of com- mon right. It is an encroachment upon the rights of property, which rights should always be held sacred. It is not a reservation to the public of a part of, or an interest in that which was granted to the company by the public, which was only the right to lay pipes in the streets of the City and County, for the purpose of introducing water into said City. But it is an attempt to secure to the public a right in property which has been pro- duced by the industry, and secured by the capital of the citizens a right to appropriate that pri- vate property to certain public uses, without com- pensation. The extent to which such a right should be exercised should be most strictly con- strued. 34 The legislature undoubtedly intended that un- der this provision of the statute, the public should be intitled to the water from these pipes free of charge in order to arrest a conflagration, or the ravages of a pestilence, or under the pressure of an immediate and overwhelming necessity to pre- vent a public calamity, but at that limit the power of the State over private property ought to cease. Third: The construction must be such as, if pos- sible, will not bring the provision in conflict with the Constitution. While every citizen holds his property subject to the duty of yielding up a part thereof, proportionate to that which is required of every other citizen, in the shape of taxes for the support of the government, and to the chance of having the whole or any part of it taken or de- stroyed, in the presence of a great calamity, like a conflagration, a sudden pestilence, or a public enemy, without first waiting to ascertain and pay its value, he does not hold it subject to public in- terference to any greater extent, or for any other purpose. Possibly to that extent this statute may be held to secure the public a right in this prop- erty, (although we by no means admit even such was the intention, or is the proper construction of this provision) but the moment we attempt to cary it a step beyond that limit by construction, that moment we bring the statute in conflict with all the most sacred guarantees of the Constitutions, both State and Federal. But of that we shall have more to say hereafter. 35 Fourth: A strict construction of this statute brings it right down to what the Court in the former case declared to be the duty of the com- pany, namely: To furnish water free of charge in case of fire. It goes no further, and has no other meaning. The words " or other great necessity" are vague, indefinite, uncertain, mean- ingless, and, therefore, void. They are like the words " for other purposes," frequently found in the titles of Acts, and these have been held to en- press nothing, and amount to nothing; that they must be laid out of consideration. That nothing which the Act could not embrace without them could be brought in by their aid. Town of Fishkill vs. Fishkill and Beekmau PL Road Co., 22 Barb., 642. Rynerson vs. Utley, 16 Mich., 296. St. Louis vs. Tiefel, 42 Mo. 578. IV THE PROVISION OF LAW REQUIRING THE WATER COMPANY TO FURNISH WATER FREE OF CHARGE, IS UNCONSTITUTIONAL AND VOID. This is a point stated by Mr. lloge in the course of his argument, but not much argued at that time, for the reason that we believed the whole matter to be res judicata as between these parties. But we regard the proposition as a sound one, and since the Court treats it as an open question, we now urge it for careful consideration. 36 We do not deny the proposition, that when the Legislature grants to an individual a franchise, something which does not belong alike to all citizens of the State, the right to exercise a power which all may not exercise, and which cannot be exercised by any without the same or a similar franchise, it may give such direction as to the manner of exercising that franchise, and reserve to itself such control over its exercise, as in its wisdom it sees fit. When it grants to another the right to use public property, it may attach such conditions to its use, and reserve to the public such interest in the property itself, as it shall deem the public good to require. But the pro- vision of law now under consideration goes far beyond any such proposition. The water in the reservoirs and pipes of this company, is its private property. It is property not derived from the State. No interest in it was granted by any act under which the company derives its powers. It has been acquired by the expenditure of millions of dollars of private capital, and is as sacred as any other private property in the State. The provision that it shall be furnished free from any public pose, is not a reservation in something which was granted, but is a bald attempt to take private property for public use without compensation. It is a violation of the Constitution of the United States, and of this State. 37 Private property shall not be taken for public use without just compensation. 5th Am. to Const, of United States. Art. 1, Sec. 8, Const, of California. Gunter vs. Geary, 1 Cal. 462. Surrocco vs. Geary, 3 Cal. 69. M'Cann vs. Sierra Co., 7 Cal. 121. S. Y. R. R. Co. vs. Moffatt, 7 Cal. 577. Coltou vs. Rossi, 9 Cal. 595. M'Cauley vs. Weller, 12 Cal. 500. Bensley vs. Mountain Lake Water Company, 13 Cal. 306. Johnson vs. Alameda Co., 14 Cal. 106. Taylor vs. Porter, 4 Hill, 140. These citations might be multiplied indefftnite- ly, but we give only a few of the earlier cases in our own Court, the Court having ever since con- tinued to make the rule more and more stringent. The statute in this instance undertakes to do away with all the usual processes of condemnation, and to make a direct appropriation of the property to public use, without compensation. This is as much a violation of the Constitution as an appro- priation without compensation in any other form. Cooley on Const, limitations, P. 354 & C. C. Potter's Dwarris on Stat., Eel. 1871, P., 468. 38 "The article is a restraint on tho legislative, as well as on the executive and judicial powers of the government." Murray's Lessees vs. Hoboken Land Co., 18 How., 276, This provision of the statute is also in conflict with that other provision of the Federal and State Constitutions, which insures protection to the cit- izen in his life, liberty and property, and declares that they shall not be taken without due process of law. Statutes are not themselves " due process of law." They only provide for due process. " Due process of law is that which hears before it condemns; which proceeds upon inquiry, and ren- ders judgment only after trial. Every thing which may pass under the form of an Enactment, is not, therefore, to be considered the law of the land." Mr. Webster, in Dartmouth College Case. The security of life, liberty and property, lies at the foundation of the social compact; and to say that this grant of " legislative power " includes the right to attack private property, is equivalent to saying that the people have delegated to their servants the power of defeating one of the great ends for which the government was established. * * * The words " by the law of the land " do not mean a statute passed for the purpose of working the wrong. That construction would render the restriction absolutely nugatory, and turn this part of the Constitution into mere nonsense." Taylor vs. Porter, 4 Hill., H5. 39 " The fundamantal maxims of a free government seem to require that the rights of personal liberty and private property should be held sacred. At least no Court of Justice in this country would be warranted in assuming that the power to violate and disregard them a power so repugnant to the common principles of justice and civil liberty lurked under any general grant of legislative au- thority, or $ught to be implied from any general expressions of the will of the people. The peo- ple ought not to be presumed to part with rights so vital to their security and well being, without very strong and direct expressions of such 'an in- tention." Wilkinson vs. Leland, 2 Peters, 657. See also, Jones vs. Perry, 10 Yerger, 59. Ervines appeal, 16 Penn St., 256. Arrowsmith vs. Burlingim, 4 M'Lean, 498. Lane vs. Dorman, 3 Scammon, 238. Reed vs. Wright, 2 Greene (Iowa), 15. Woodcock vs. Bennett, 1 Cow., 740. Commonwealth vs. Byrne, 20 Grat., 165. "Those terms, 'Law of the Land,' do not mean merely an act of the General Assembly. If they did, every restriction upon the Legislative authority would be at once abrogated. For what more can the citizen suffer, than be taken, imprisoned, dis- seized of his freehold, liberties and privileges, be outlawed, exiled and destroyed, and be deprived of his property, his liberty and his life without 40 crime? Yet all this he may suffer, if an act of the Assembly simply denouncing these penalties upon particular persons, or a particular class of persons, be, in itself, the law of the land within the sense of the Constitution; for what is in that sense the law of the land, must be duly observed by all, and upheld and enforced by the Courts. In reference to the infliction of punishment, and divesting the rights of property, it has been re- peatedly held in this State, and, it is believed, in every other of the Union, that there are limita- tions upon the legislative power, notwithstanding these words; and that the clause itself means that such legislative acts as profess in themselves di- rectly to punish persons, or to deprive the citizen of his property, without trial before the judicial tribunals, and a decision upon the matter of right, as determined by the laws under which it is vested, according to the course, mode and usages of the common law, as derived from our fathers, are not effectually, laws of the land for those purposes." Hoke vs. Henderson, 4 Dev., 15. Nor can this provision be maintained under the oft quoted "Police Powers of the State." That expression is a very vague and indefinite one, but so far as relates .to the taking of property, it has never been held to extend beyond the power to take or destroy, in the presence of an impending calamity, like a conflagration, a pestilence, or a public enemy, without first rendering compensa- tion therefor. And even when taken under that 41 power, and in such an emergency, it is not, as a general thing, permitted to be taken without com- pensation, but simply that the taking may pre- cede the compensation. Beyond this, the police power of the State over private property extends merely to the regulation of the use of it to pre- scribing such regulations as will require the owner to so use it as not to prevent his neighbor from an equal use and enjoyment of his own property, or so as not to expose the property of his neigh- bor to unnecessary danger from conflagration, or his neighbor's family to unnecessary dangers from pestilence. This is the extent of _ the police pow- ers of the State. It never extends to the taking of private propert}^ for any ordinary public use. Nor can it be claimed under the taxing power of the State ; as a tax imposed upon this company; for all taxes must be equal and uniform, and no similar tax is levied upon any other citizen or corporation of the State. V.-IS THE WATER OF THIS CORPORATION PROPERTY WITHIN THE MEANING OF THE LAW? We are told now that water is not property, and not the subject of sale. This argument was first presented to the Court, after two of the counsel for the company, and the City Attorney himself, had had their day in Court. Though it 42 was finally presented in an elaborate printed pam- phlet, that pamphlet, and all intimation that such a position would be taken, was kept a profound secret from us until it was so late that we had no opportunity to reply to it, except such opportun- ity as Mr. Hoge might have, upon having it sprung upon him in the midst of oral argument, without a moment. for examination, or preparation. The proposition seemed also so absurd that we felt that it would be an insult to the intelligence of the Court to spend any time in considering it. But in view of what has transpired since, we may be justified in briefly alluding to it. First The Legislature of the State, it seems to us, has settled this question. In Section 2 of the Water Company Act. it provides that the Company may appropriate and take possession of, and use and hold all such kinds and waters, as may be required for the purposes of the Company, upon m'lkiny compensation therefor. The Legislature thus places waters upon the same footing with lands, and requires that compensation should be made therefor. The State, in the exercise of the power of eminent domain, is not required to pay for that which is not property Again, we doubt if there is an instance on rec- ord where it is made a crime to take that which is not property. In other words, if water is not property, it may be taken by any one, wherever found, and no public offense is committed. If it is not property, it is not the subject of larceny. 43 The legislature has for many years expressly rec- ognized water as property, by making the taking of it from the works of any water company a crime. See Statutes of 1861, P., 533. Penal Code, Sec. 499, Second While the counsel for the city has en- deavored, in that part of his argument having re- lation to the rights of the city to water free of charge, based upon the city ordinances, to show that we derive some of this water from lands claimed by the city, the fact is equally as well authenticated, that even as to those lands, we have acquired them by purchase, and hold them in fee simple absolute. That we are in possession of them is a fact admitted and complained ot all through the argument. Until higher evidence of ownership is given, possession itself is an evidence of ownership. But it also appears throughout this and the former case, that the great body of the water held by this corporation, is brought in from San Mateo county. There the company holds by patent from the sovereign, large bodies of land, forming the sources of supply. There it has acquired, at immense cost, the lands upon which the waters rise, the lands under the waters, and is. either by virtue of its ownership of all the lands affected, or by grants from others who had riparian rights, the right to collect, stoie, and di- vert these large bodies of water which are neces- sary to supply the needs of a population so num- - u orous us that composing the inhabitants of the city of San Francisco. Owning the lands, it is also the absolute owner of the water. "Land, in its legal signification, has an indefi- nite extent upwards, and a grant of it conveys to the grantee, not only the field, or the meadow, but all the growing timber and water standing and being thereon; and a stream of water is therefore as much the property of the ownor of the soil over which it passes, as the stones scattered over it." Angel; on Water Courses, Sec. 5. Buckingham vs. Smith, 10 Ohio, 288. Bullen vs. Runnels, 2 N. H., 255. 1 Greenli f's Ed. Cruise's Digest, 37. Woolrych Law of Waters, U6. Owning the streams from which this water comes, the lands upon which it rises, and upon which it is stored, the pipes and aqueducts in which it is transported from the source of supply to the place of distribution, there can be no doubt v of the fact that the water is as much private prop- erty, as was the money of the stockholders before it was invested in this enterprise. Upon this point we submit a quotation from a single other authority, which, for clearness of statement, and the great learning and ability of its author, we feel convinced will be sufficient for all the purposes of this petition. Tt is this: 45 a Water, when collected in reservoirs and pipes, and thus separated from the original source of supply, is personal property, and as much the sub- ject of sale an article of commerce as ordinary goods and merchandise." John F. Swift, in his Petition for Re-hearing, in San Francisco vs. S. V. W. W., Page 10. We need hardly remind your honors of the time when you bought water by the bucket full for use in your offices, and for all your " family uses," to prove that it has always been the subject of sale in San Francisco, although not always in such quantity as now. TI. THE POWER OF THE COMPANY TO DEAL IN WATER. To fully understand this question, it becomes necessary to understand what was and is the fran- chise granted by this Act of the Legislature. What right does it confer upon corporations organized under it, that is not possessed by any and all other citizens of the State? The first section of this Act, ( Stat. 1858, p. 218.) makes the General Incorporation Act of 1853, and the Amendatory Act of 1855, applicable to water companies. This grants no franchise. Those General Incorporation Acts were not acts granting any franchise, other than providing the mode and manner of organizing associations for ' 46 trading and commercial purposes, 0:1 a stock basis, instead of common partnership. No rights were granted to such corporations, other than those possessed by individuals unincorporated, except the right to sue and be sued by a common name, to have a common seal, to have the interests of different parties therein represented by shares of stock, and the business managed by a Board of Directors, and freedom, during the term of its existence, from the ills of mortality. Tho same business that was carried on by these corpor- ations, could be carried on by any individual in the community. The only franchise then granted by these Acts, was the franchise of existence Section 2 of the Act grants a specific franchise to water companies, not held by individuals, and not held by any corporation by virtue of its exis- tence alone; the right to acquire property by the exercise of eminent domain. The mode and manner of the exercise of that franchise is fully defined. The consideration for granting it is found in the fact that the granting of it would enable private capital to accomplish a work which, though purely private, would redound to the common good, and advance the interests of the State; a work which was deemed to be a public convenience, but in which the public did not desire to embark. The only other franchise granted by the act, and the only portion of the act which grants any right in, or use of. public property, is that found 47 in section five of the act, and that is the right to lay and maintain water pipes in the streets, lanes and alleys of the city or town. That franchise is granted upon the condition that the streets shall be kept in repair, and shall be subject to the reas- onable direction of the city or tdwn authorities, in the mode and manner of exercising it. No part of the act grants to the company any land or any water, or any interest in. or use of, any public property whatever, except the use of the streets upon the conditions aforesaid. Now, in addition to prescribing the mode and manner of exercising the first of these franchises, that of acquiring property necessary for the cor- porate purposes by the power of eminent domain, and insuring the protection of the public property by providing for the manner, and under what di- rection and supervision the second shall be exer- cised, the legislature has also insured the protec- tion of the people against extortion in the matter of their urgent needs, by providing that water shall be furnished to the inhabitants, so long as the supply permits, for family uses, without dis- tinction of persons, and at reasonable rates; and provides a method of insuring that those rates shall be reasonable, if ever the company fails to make them so. While such are the provisions of the statute a statute, which in, and of itself does not attempt to define the general powers of the company, only touching upon two points which are not covered 48 by the general incorporation law to which the company is remitted, and remitting us to that general incorporation law for our general powers and privileges we have been amazed to find that the Court has dropped expressions which have created a very general public impression that the company has no power to sell water for any pur- pose except for family uses, and that while it is bound to furnish water for those uses, it cannot collect pay therefor except when rates shall have been first fixed by a commission appointed in the manner designated by the fourth section of the act. We do not so understand the decision of the Court, and yet there are expressions, especially in the concurring opinion of Mr.' Justice CROCKETT, which may lead to that impression ; and so we call attention at this time to the fact that the general powers of this company are derived from the gen- eral incorporation act of 1853, and the amendatory act of 1855. and are by no means limited to the special provisions contained in the Water Company Law of 1858. Under those laws, the company possesses all the powers of a manufacturing and commercial com- pany, so far as pertains to the construction of water works, and dealing in water. It is true that .those acts do not say that companies organ- ized under them may deal in water, nor does it mention other commodities in which corporations may deal, but it authorizes them to organize for the purpose of engaging in any species of trade, foreign or domestic. There can be no doubt, 49 even without the aid of the water company act of 1858, companies might organize under these acts for the purpose of constructing water works, and engaging in the business of selling water. But without the aid of the water company act, they could not acquire property by condemnation; or lay pipes in the streets of a city, except by special contract with the city authorities, a contract which ths city, without special legislative author- ity, would have no power to make. The company, therefore, derives its power to acquire property by condemnation, and its power to lay pipes in the streets of the city, from the water company law of 1858; but its power to build water works, and to deal in water, its power to buy and sell, is derived from the general incor- poration laws of 1853 and 1855, and is wholly independent of the law of 1858, so far as its general powers, in that regard, are concerned. Like other corporations formed under the general incorpora- tion law, it may deal with whom it pleases, when it pleases and as it pleases, except so far as that liberty is re- strained by the law of 1858. By the law of 1858 it must sell for family uses, without distinction of persons, and at reasonable rates. In the absence of that law, it could have sold to one and refused to sell to another, and in each instance, like any private person, could have demanded from each applicant such price as it saw fit. That rule applies only to water for family uses.. For those uses it is compelled to sell, so long as the supply permits, at reasonable rates; but for any other purpose, it, 50 like any other individual or corporation may sell or not, as it pleases, may sell to one, and refuse to sell to another, and may charge such price as it can agree upon in each and every instance. With the exception of family uses, and such cor- porate uses as the city rnay be entitled, under the law, to demand water for, the State has reserved no more power over this property, either as to price, when, where, for what purpose, or to whom, it shall be sold, than she has over any other pri- vate property in the State. The Court has correctly held that we are not bound to furnish water for family uses free of charge in both cases. This matter of fixing rates is a provision inserted for the protection of per- sons requiring water for family uses (and not for any other, unless it be the municipality), and is a measure over which the company has no control. When the public attempt to fix rates for the com- pany, the company is protected by being given a voice in the proceeding, but until the public take the initiative, the rates are absolutely within the control of the company, as are the rates at which any other citizen may sell his property. If for family uses it is claimed that the company's rates are unreasonable, then the public may inaugurate proceedings to make them reasonable, but until the rates are so fixed, upon the motion of the public authorities, and in a proceeding in which the company has a voice in the selection of its judges, the rates established by the company must 51 be paid, or it is not compelled to furnish the water. We are not aware that this question has ever been discussed before this Court, but this seems to be the common sense view of it, and it is the view taken by Mr. JUSTICE McKiNSTRY at nisi prius in the only case where we have ever known it to arise. In the case of >rte Madera Water Co. vs. Sneath, in San Mateo County, this question came directly up. the action being for water furnished by a company organized under this general law, and one of the defenses being that no rates had ever been fixed in the manner provided by law. The Court said in that case, " The defendant can- not refuse to pa}^ what the water is worth because rates have not been fixed. If rates had been fixed they would be evidence of value. No rates having been fixed, the charge must be rea- sonable, and without distinction of persons. The charges must be relatively equal, but it is not necessary that they should be by the gallon, or that every circumstance but mere quantity should be excluded." This we believe to be the true in- terpretation of the law, but we do not think the law as to rates applies to any of the purposes for which water may be required, except family uses. In other words, THE LEGISLATURE HAS NOT ATTEMPTED TO PROVIDE FOR FIXING THE RATES IN ANY CASE WHERE IT HAS NOT ATTEMPTED TO COMPEL THE COM- PANY TO SELL. Wherever it is optional with the company to sell or not, there it is aho optional at what 52 price it ivill sell. That the company has power to sell its property, generally, there can be no doubt. The very statute to which we are remitted for the ascertainment of our general powers (Stat. of April 14, 1853, Sec. 4) provides that the company shall have power to ;i purchase, hold, sell and con- vey, such real and personal estate as the purposes of the corporation shall require." No one would pretend that a company organized to manufacture and deal in boots and shoes, had no power to sell boots and shoes generally that it could sell them to families only, even if by another Act such a company was required to sell to families without distinction of persons. So a company organized to build water works, and deal in water, may sell its commodities in any market, and to any customer coming within the jurisdiction where it is authorized to transact business. Even if there be a particular class to whom it is obliged to sell, that does not prevent it from selling to others. It may make any kind of contract not prohib- ited by law or the provisions of its charter. Union Water Company vs. Murphy's Flat Fume Co., 22 Cal., 620. It may sell and convey its property. Gashwiller vs. Willis, 33 Cal., 11. Miner's Ditch Co. vs. Zellerbach, 3? Cal., 543. People vs. P. & T. C. of C. Co., 38 Cal., 166. Under these circumstances we are at a loss to determine whence comes the authority to say, as 53 is said in the eleventh clause of thefof'. syllabus /this case " the corporation is entitled to charge only for water supplied for family uses; ; ' or, as is said in the opinion of Mr. JUSTICE CROCKETT, "Under its act of incorporation, it has 'not the legal capacity to charge, except for water furnished for family uses." Laws are sup- posed to be reasonable, and it would hardly be reasonable to suppose that capitalists would in- vest their money, to the extent of millions of dol- lars, under a law which gave them no power to sell except for a particular purpose, which would be inadequate to furnish a business that would pay even the minimum interest on the money invested. The more so, if at the same time it compelled them to surrender up their stock in trade, to the full extent of the supply on hand, at the demand of the public authorities, free of charge. VII.-THE POWER OF THE CITY TO PURCHASE. It is intimated that the city has no power to purchase water, even for her "family uses/' until rates shall have been fixed in the manner provided by the law; nor for any other purpose at any price. If this be true, it is certainly a hardship on the city, for it is moat emphatically decided that she is bound to furnish it for the "family uses" of such of her citizens as may be confined in her prisons, almhouses, and hospitals, for her public offices, school-houses, and in all other places where there are servants or wards of the city needing water for "family uses," and there can be no doubt of the correctness of this decision. But it is also held that the company is not bound to fur- nish the water for those uses, even to the city, free of charge. If the city has neglected to take the proper measures to have the rates fixed, it is no fault of the company, and the city cannot thereby become entitled to escape the payment for the private property which she has so long been using for these purposes. The city has no more right to take advantage of her own wrong than has any individual, and she cannot escape liability to pay for the property of another which she has taken and consumed, on the ground that she has herself neglected to provide the statutory means of ascer- taining its value. If these rates have not been fixed, she is in exactly the same position as any other consumer she must pay the rates fixed by the company, or such price as she can agree upon with the company, the more especially, since the neglect has been her own, and riot the company's. But we submit, that as to water for family uses, as well as to water for any and all other purposes for which the city may have need of the same, and for which ,she is not entitled to it free of charge, the city has full power to contract, and even if rates had been established in the manner provided by law, she would not be bound to pay those rates, if she could get it for a less price. It may be true that there is no express provision of the Consolidation Act, authorizing the city to 55 contract for water for municipal purposes; but she has not only the right to exercise all the ex- press powers named in that Act, but like any other municipal corporation, the power to do all other things necessary to be done in exercising the express powers given to _her, and performing the duties imposed upon her by its provisions. Spalding vs. Lowell, 22 Pick., 71. Bangs vs. Snow, 1 Mass. 181. New London vs. Brainard, 22 Conn. 552. Oakland vs. Carpeiitier, 18 Cal., 540. Bridgeport vs. Railroad Company, 15 Conn. 475. As was said in Harlem Gas Co. vs. the Mayor (33 N. Y., 327) in reference to gas, so we may say here in reference to water, the power and duty of the municipal government to furnish it cannot be denied with any show of reason or good sense. Nor, as still further laid down in that case, is it obligatory upon the city to purchase of a particu- lar person, or at a prescribed rate. It is the duty of the City Government to procure such supplies on the most economical terms that they can be had, consistent with that other duty imposed upon her in common with all other persons, to do jus- tice. While she has no right to take and consume the property of another without compensation, she is equally bound to procure it upon the best terms she can arrange. Therefore, it does not fol- low because rates have been established, at which the inhabitants of a city have a right to demand that they shall be furnished with water or gas 56 the city itself, consuming a much larger quantity than any individual, must pay the same rate, if she can contract for a loss price. She may de- mand it for her family uses, at the prescribed rate, but she may contract for it at a less rate if she can. And if she has had and consumed the sup- ply, without a rate having been established, and without a contract, she is still bound to do justice, and pay what it is reasonably worth. Dillon on Municipal Corporations, Sec., 384. Argenti vs. San Francisco, 16 Cal., 255. Wheeler vs. Chicago, 24 111., 105. Harlem Gas Co. vs. Mayor, above cited. We have already shown that the rates to be fixed under the statute apply only to water for those uses for which the company is compelled to sell it, without distinction of persons, namely, for family uses. It follows that for all other purposes for which the city may require the water (except such, if any, as she may be entitled to demand it for, free of charge) the price must be a subject of contract. We have cited authorities showing that the water company has full power to make any contract, not ultra vires, and coming within the purview of the purposes of its incorporation. That fact will hardly be disputed. All through the consolida- tion Act, the power of the city to make such con- tracts as are necessary to carry out the provisions of the Act, is recognized, and the mode and man- ner of making contracts upon some subjects is expressly provided for. The power to contract is 57 a necessary incident of the government itself. How then can it be said that the one party has no power to contract for the sale of that in which it was organized to deal, or the other no power to contract for the purchase of that which it con- fessedly must have, in order to provide for the good order, welfare and government of its people, to accomplish the very purpose of its existence? VIII. THE OBJECT, THE POLICY, AND THE HARDSHIP OF THE LAW. This heading suggests a line of argument which we have seldom, if ever, felt at liberty to address to a Court. A line of argument addressed rather to the legislative than the judicial department of the government. But it is sometimes permitted to a Court to enter into a consideration of these ques- tions, when the language of the statute is such as to leave a doubt as to what was intended. When a doubt remains as to the construction of a statute, we may inquire into the object to be accomplished, and the reasons which prompted the Legislature in passing the Act. From the discussion which has been had, both by counsel and Court, this seerns to be such a case. We also feel justified in entering upon this inquiry at this time, for the reason, that while we have not heretofore respond- ed to it, the special counsel opposed to us, has, for a number of years, ever since his first appear- ance in the former case, made this particular line 58 of argument the burthen of his complaint; ap- pealing to the sympathies of the Court, and the prejudices of the people (for his arguments have been, in a large degree, addressed to the people), and making many statements of fact not relevant to the case, and sometimes more imaginary than real. The Court also has declared that "there is no hardship in compelling it (the company) to furnish the city and county, to the extent of its jpeans, free of charge, all water necessary for wat- ering streets, public squares and parks, 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." We therefore feel at liberty, in closing this pe- tition for rehearing, to inquire into the circum- stances under which this law was passed, the object to be accomplished, and the hardship of the law. as construed by the Court. We find then, that at the time of the passage of this Act, there had sprung up, within a few years, a goodly city, builded upon a barren sand, where little or no water was found, in a climate where there was no rain for eight months in the year. That ever since it was founded, the inhab- itants had been dependent upon water carts for fresh water for all purposes for which the same was needed, most of the water being brought from across the bay, and distributed in the man- ner we have stated, and at great cost to the con- sumer. That the supply was inadequate to meet any but the most absolute demands of nature. That th 3 city was growing rapidly, from the force of circumstances with which it was surrounded, but its growth was greatly retarded, and property values greatly depreciated, for the want of water. That all the water which it was possible to get for the extinguishment of fires, must be drawn from the bay, and that buildings lying beyond the reach of this supply were absolutely at the mercy of the flames. The result was that improvements would not spread beyond the reach of the water line, and everywhere rates of insurance were enormous. Under these circumstances a small corporation had been formed under the general incorporation law of 1853, to utilize a small source of supply found within the limits of the city and county, but this supply was in itself wholly inadequate to meet the wants of a grow- ing city, being only about two millions gallons per day, and the company had no power to go elsewhere, for a larger supply. It had not, nor could any company which could be organized under the law as it then stood, have any power to acquire property against the will of the owner, even upon rendering full compensation therefor; or any power to lay pipes in the streets of the city, unless it could be obtained from the city authorities by contract. We need not stop to consider the modus opemndi by which experience teaches that such contracts must usually be ob- tained, or the precarious tenure by which rights under them are held. Enough to know, that at the time this law was passed, there was no ade- 60 quate means of supplying the water at any price, nor any law under which capital could be induced to embark in the undertaking of procuring and introducing into the city an adequate supply. Geo. H. Ensign appeared before the Legislature and asked for a franchise which would enable him and his associates to go beyond the limits of the city and count}-, and find a supply which should be sufficient for the needs of the city, bring it into the city, and the right to lay pipes in the public streets . without the necessity of apply- ing to the city authorities for a contract granting that right. This called the attention of the legis- lature to the necessity of a general law on the subject, and this Act for the incorporation of water companies was introduced and passed, and became a law. Under it nearly the same induce- ments were held out to capitalists generally, to engage in the business of constructing water works, and introducing water into this or other cities of California, as were asked by Ensign and his associates, but with both Acts before it. and the ivohle subject then under careful consideration, the Leg- islature deliberately, and we must assume purposely, changed th' phraseology of the Ensign Act, from " FIRE AND OTHER MUNICIPAL PURPOSES," to " IN CASE OF FIRE OR OTHER GREAT NECESSITY." With the two Acts mOV- ing along through the Legislature at the same time, one si ecial and the other general, the last induced by the application nf the first, it must be held that there was some object in this change that it could not have been intended that the language of the general law should mean the same as that of the special Act. 61 Under these circumstances, and after the pas- sage of this law, this company was incorporated under the General Incorporation Law of the State, and under this law of 1858, and commenced oper- ations. In its operations it has been the greatest benefactor the City of San Francisco has ever had. No other individual, or number of individuals, or corporation, has ever contributed so much to the building up of the city, the enhancement of the values of its real estate, the comfort of its inhabitants, and the reduction of their bur- thens of taxation, as the Spring Valley Water Works. By reason of its works, the onerous tax of insurance has been reduced to a sum not exceeding thirty per cent, of what it formerly was, and what it must have continued to be in the absence of such works. Population has in- creased beyond all precedent, and instead of be- ing confined to a few squares near the water front, it has spread over, and adorns the whole peninsu- la. Instead of the cheap and temporary huts which men builded when they had no protection against fire, stately mansions and comfortable homes cover all the hills. Instead of families making a barrel of water last a week, they may and do now use it in quantity more than sufficient to insure all the purposes of cleanliness and health. Every comfort has been promoted, and every industry advanced, by the introduction of an abundant supply of pure water into a city where such a thing was before almost unknown. Values have been increased an hundred fold, and the rate of taxation proportionately diminished. 62 Even the company itself has created and pays taxes upon nearly or quite a million of dollars of taxable property within the city, which before that had no existence. And it was to accomplish this purpose, to in- duce an association of capital that should work this grreat public good, and accomplish this end so necessary to the growth of the city, that the trifling advantages furnished by this Act were of- fered. And what were those advantages ? Simply the right to go into the then wastes and wilds of San Mateo county, in its most inaccessible part, and condemn lands and waters, if it could not buy them, and the right to lay pipes in the streets of the city, without paying tribute to its government other than keeping the streets in repair restor- ing them after the pipes were laid, to the condi- tion in which it found them. Under the first of these privileges, it has acquired and holds one and 3-100 acres of land, all the balance of its property it has acquired like any other citizen, by purchase, and holds by deed. Under the second it has laid down over two hundred miles of pipe and mains in the streets of the city and county of San Francisco, and brought the water to the very doors of all its inhabitants. Were these paltry privileges too great an in- ducement to offer for an investment of private capital which should work so great a public good ? Were they so great that we can find no motive for the Act of the Legislature in granting them, short 63 of holding that it intended to compel us, as a fur- ther consideration for them, in addition to being compelled to sell the water for a certain purpose at rates to be fixed by others than ourselves, also to surrender any part or the whole of the proper- ty introduced at such a cost, to the public author- ities, " upon demand," and without compensation ? Most assuredly, it should require very strong and clear language to justify any such conclusion; and if the language was sufficiently clear to justify the conclusion that such was the intention of the Legislature, then it would be the duty of the Court to say that the Legislature had attempted to do what was against common right, against the most sacred rights of civilization, and against the constitution of the State and the nation. Is any such demand made upon other corpora- tions or individuals, for similar privileges granted to them ? Gas companies have the same rights in streets that water companies have, their works cost but a bagatelle compared to the sum that these works have cost. Is there an instance in all the legislation of the State, where it has even been attempted to require them to furnish a sin- gle farthing's worth of their property of their stock in trade without compensation? No such provision can be found in the statutes of this State, nor is it believed such can be found anywhere else. The only reason why there should beany distinction between these two classes of corpora- tions in that regard is, that the water company deals in a commodity which may sometimes be' 04 required upon a sudden emergency, when there is no time to dicker for price, or measure quantity, to stem the torrent of a great public calamity: while the commodity dealt in by the gas company could not be used for such a purpose, but would destroy, rather than save. Therefore the element of luxury and destruction is not burthened, even on these occasions of public calamity, while the element of necessity and salvation is so burthened then, and it is even claimed to be burthened when- . ever the public authorities shall "demand it." The reasoning is not founded in justice, and we do not believe it is founded on law. All railroad companies are authorized to enjoy the other priv- ilege, that of acquiring property by condemnation, and yet no law requires that they should surren- der property, or render service free of charge. We look in vain for any reason which should have induced the Legislature to impose this burthen upon us any corresponding privilege which should justify it, or any precedent which should justify the conclusion that it intended to do so. But we are told that the water should be fur- nished free of charge, because these works have been constructed at the public expense. Let us see. Not a single dollar of public money has ever gone into the works of this corporation. It has never been subsidized to the extent of a farthing. It has never asked or received public aid. On the contrary, from the hour when it first put a pick into the ground in the construction of its works, it has been a contributor to all the expenses of G5 the government, paying its full proportion of all the assessments levied for that purpose. For six years, the men who inaugurated this enterprise kept pouring their money into the work, until the sum had run up into many millions of dollars, without receiving one cent in return; and ever since the work began to bring in an income, the great bulk of that income has been used for the construction and enlargement of the works, so that the stockholders have never yet received the equivalent of five per cent, per annum interest for their money, and more than nineteen millions of dollars have gone into the works. But, says the counsel for the city, the income from the works, the money derived from the sales of water, have gone into the works. To that ex- tent they have been built out of the moneys paid in by consumers, and to that extent they are pub- lic works, therefore the public ought to have all the water required for municipal purposes free of charge. We fail to see the force of the argument, or the justice of the conclusion. The money of the comumer was not public money, and if there is any- thing in the fact upon which to base an argument, that argument is against the city, and in favor of the proposition that she should pay for the water used for public purposes, and thus enable the com- pany to make a reduction in favor' of the con- sumer. But the suggestion itself is a fallacy. As well might the city say to the merchant who had commenced business upon a capital of two hundred thousand dollars, worked hard for twenty 66 years, drawing nothing out of the business, allow- ing nil the income to accumulate and increase the capital, until the same had become doubled, " this ship and cargo was purchased with money paid in by your customers, and is therefore public prop- erty. We want the ship for a training ship, and the cargo to feed our prisoners, and the sick in our hospitals, and we are going to cake them for those public purposes, without paying you a cent for them." The cases would be exactly parallel. As well might the city seize the stock in trade of any dealer in the city f and convert it to public uses, without compensation, and justify the act on the ground that the dealer had purchased it out of money that he had received from other citizens in the course of his business. As well might she seize and convert the private fortune of her own counsel, and justify the act on the ground that he made that fortune out of the pub- lic, in the shape of fees received from private citizens. One word as to the hardship of the law The Court says it is no hardship to compel the com- pany to furnish water free of charge, for watering the streets, the public parks, flushing the sewers, and for all like purposes beneficial to the public. We hardly think it is for the Court to say whether it is a hardship or not, or that its judgment ought to be based upon the question of whether or not it is such. But can it be justly said, when a few hundred men have combined their fortunes, and embarked 07 in an enterprise like this, that it is no hardship to take the property accumulated by that combined fortune, " to the full extent of its means" and convert it to any and every public use that the public au- thorities may deem generally beneficial or desira- ble, or may " demand" without compensation? Are men to hold their fortunes by so uncertain and precarious a tenure as that? Better that we had no government at all, than a government which furnishes no better protection to property than this. If this be true, then the very object of government is destroyed by government itself. Even the municipality itself, has never claimed that under any law, or anypf the ordinances upon which it has heretofore relied, it was entitled to this water free of charge, for the watering of its streets; and in its own ordinances, in which it has attempted to compel companies to furnish water free of charge for municipal purposes generally, it has expressly excepted the sprinkling of streets, as a purpose for which it should not be so entitled. The Counsel himself, with all his enlarged ideas of public right in private property, has never gone so far as this. We have never before been threat- ened with having the entire resources of the com- pany exhausted, and a demand that they should be doubled, to furnish the water that could be used, and if we were obliged to furnish it free, would be used, to water the hundreds of miles of streets of this populous city. Can it be said that it is no hardship to require a private corporation to furnish, free of charge all 68 the water that the public may see fit to use in beautifying hundreds of acres of public parks, laid out upon thirsty and otherwise barren sands? If private citizens can be thus compelled to fur- nish water for such a purpose, without cost to the municipality, there will be no limit to its use, short of the capacity of the earth to drink it up; and in a country where water has to be brought from such long distances, and no rain falls for three-fourths of the year to contribute to the supply, instead of a capital of twenty, millions, a hundred millions will be found too small a sum to meet the demand. Again, it is only in cases of necessity, at the very utmost, that we are required to furnish water free of charge. It is a mistake to say that we are so required to furnish it for all public purposes for which the public authorities may demand the same; or that we are to furnish it for public con- venience and ornamentation. Public parks may be a convenience; they may tend to the cultiva- tion of good taste, and beautify the city. To a limited extent they may be a public necessity, in crowded cities, but the necessity is for open space, not for flower gardens and places of beauty. The water is used to ornament, not to meet the de- mand of that necessity. It contributes nothing to supply the public want for space, but simply to beautify the space which public want de- manded. Even striking out the word " great" and put- ting the broadest interpretation upon the word 69 " necessity," we do not see how the company can be held, under the law, to furnish water free of charge, for these, or any " like purposes." But. if the corporation and its stockholders are entitled to no consideration if their property may be thus taken for such purposes, without compensation, there is another and a larger class, upon whom this rule does and will continue to work a hardship. Complaint has always been made about the cost of water to the consumer. It is high ; from the very nature of the circum- stances, it must always be comparatively high, to consumers in California. In no other country are there so many elements combined to increase the actual cost of supplying water as here. But with a fair construction of reasonable and just laws, it need not always be as high as it has been in the past. It is not now more than a tenth part as high, in proportion to the quantity used, as it was before the construction of these works. When the works are completed, and the full supply at the command of the company brought into the city, if, as in other cities, all contributed their pro rata to the maintainance of the works, the cost could and would be still further and greatly re- duced. Elsewhere, every owner of property con- tributes something to the cost of bringing water into the city, but here no property bears the bur- then except that of the stockholders, and only the private citizens who have actual connections with the pipes contribute towards a return upon the capital invested. When there are but about fifteen 70 thousand of these, in a city like San Francisco, the burthen is necessarily heavy. And if in the future the company shall be compelled to furnish, free of charge, all the water for public purposes " other than family uses," that may be demanded by an ever changing, and not always wisely se- lected corps of public officers, the hardship upon the consumers must of necessity be increased rather than diminished. No matter if rates have to be fixed at which these consumers shall be fur- nished, we cannot assume that any board of com- missioners will ever fix rates that will not at least cover the expense of maintaining the works, and we may assume that they will recognize the jus- tice of so fixing them that they shall yield some small return upon the capital invested. Neither can be done without making the rate a hardship upon consumers, unless all regular consumers are paying ones. FINALLY. We submit that the custom of the country, and the custom of the world, furnishes some criterion upon which to judge of the intention of the law maker, in cases of this kind. There is no reason to suppose that the legislature of California in- tended to create a system the reverse of that practiced everywhere else. The more especially so, since here the need for such works, and the cost of the undertaking, was greater than almost anywhere else. Water works for the supply of the inhabitants of cities, are no new thing. They are older than California^ older th n America. And we find that in every, city in the world, where such works are held in private ownership, and the city is a consumer from them, it pays for the water used for all its ordinary municipal puposes. Nowhere, but in San Francisco, has it ever been contended that the property of a private corporation could be taken for this public use, without compensation. And even under this law, under which many cities in California are now provided with water through private corporation*, it has remained far San Francisco alone to claim that she was entithd to the water free of charge for any purpose other than the extinguishment of fires. $o other city has at- tempted a like confiscation of the property of its citizens. We believe the attempt to be both unjust and un- lawful, but desire, as we always have, to be law abiding on our own part. We .have therefore ap- pealed to your Honors to determine what is the law, and feeling that your recent opinions in both these cases (Nos. 5088 and 5631) ought to be re- vised and reconsidered, we respectfully ask that a rehearing be granted, in both cases. CHAS. N. FOX, Attorney for S. V. W. W. J. P. HOGE, Of Counsel. This book is DUE on the last date stamped below Form L-B 25m-2,'43(5205> S25S7 water company, i70 San Tranci s co ."* The^Spring .._ Valley water works, vs. the city and county of San Francisco. ..Die Spring Valley water II 1 1 II II III I D 0008 TD 225 S25S7 1870