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