UNIVERSITY OF CALIFORNIA 
 
 Robert Ernest Cowan
 
 Wo. 3,699. 
 
 IN THE SUPREME COURT 
 
 OF THK 
 
 STATE OF PA.LIFORNIA. 
 
 The City and County of San Francisco 
 
 ^Plaintiff and Appellant,, 
 
 The Spring Valley Water Works, 
 
 Defendant and Respondent. 
 
 Respondent's Petition for Re-hearing. 
 
 A. CAMPBELL, SR., 
 
 Of Counsel. 
 
 CHAS. N. FOX, 
 
 Alivrnny for Eespondent. 
 
 AND ARGUMENT OF 
 
 S M. WILSON, AND 
 
 J. P. HOGE, 
 
 Of Counsel. 
 
 SAN FRANCISCO: 
 JOS. WINTERBURN AND COMPANY, PRINTERS AND ELECTROTYPERS, 
 
 417 Clay Street, between Sansome and Battery, 
 
 .8 73 .
 
 Iff THE SUPREME COURT 
 
 S 
 
 C 
 
 TATE OF ALIFORNIA, 
 
 CITY AND COUNTY OF SAN 
 FRANCISCO, 
 
 Plaintiff and Appellant, 
 
 Vto. 
 
 SPRING VALLEY WATERWORKS, 
 
 D"ft. and 
 
 Petition of Respondent for Rehearing. 
 
 Respondents respectfully petition the Court 
 for a rehearing in this cause, on the grounds and 
 for the reasons set forth in the points and argu-. 
 ments following, and hereto annexed. 
 
 We desire by way of preface to our regular 
 points to say that at the hearing, a brief in reply 
 was filed by John F. Swift, Esq., of Counsel for 
 Plaintiff, to which we have had no opportunity 
 to respond, and as it almost entirely ignored the 
 law upon which the Court had intimated the case
 
 must iatV, ifeSotulfi not afford to devote much of 
 the brief hour given for ornl argument to a con- 
 sideration of its propositions. 
 
 It is full of glittering generalities, purporting 
 to be based upon historical facts; nearly all of 
 which are outside the records of this case, and 
 verv many of which we are prepared to show 
 partake largely of fiction. These statements not 
 being in the record and not seeming to us perti- 
 nent upon a law argument, we have not supposed 
 they would enter into the consideration of the 
 Court,butif they have been, or are to be consider- 
 ed as contributing towards a solution of the legal 
 rights of these parties, we desire an opportunity 
 to reply to them; an opportunity which should 
 Joe granted for the reason, that the line of argu- 
 ment adopted by Mr. Swift is entirely new to the 
 case ( if not new in any case,) and was broached 
 for the first time at the very close of the case. 
 
 I. 
 
 . We think that the Court erred in holding that 
 the questions arising on this appeal, except that of 
 former recovery are not precisely the same as 
 those which were adjudicated by this Court on the 
 former appeal ( 39 Cal. 473 ). The Court, in its 
 recent decision says : 
 
 ; ' On the former appeal, the only questions be- 
 " fore us were : First, whether the Court below
 
 " properly refused to grant a temporary injunc- 
 *' tion ; second, whether the Court erred in sus- 
 " taining the demurrer to the complaint. On the 
 " first point, we affirmed the order denying the 
 4 1 injunction, and decided that inasmuch as the 
 '" complaint contained no sufficient averment to 
 " the effect that water has been introduced into 
 "the City and County by any other person, it was 
 " not incumbent on Ensign and his associates, or 
 " their successors, until the happening of that 
 li event, to furnish water free of charge for general 
 " municipal purposes, exclusive of that required 
 u for the extinguishment of fires." 
 
 This is a statement of the former decision upon 
 that point, as we understood it, and we submit 
 that the point was directly involved and necessari- 
 ly decided on the former appeal ; that such decis- 
 ion necessarily involved a consideration of all the 
 statutes and ordinances bearing upon the question 
 of th'e rights of plaintiff and the duties of defend- 
 ant, as affected by the facts as then before the 
 Court, and that so long as the facts remain the 
 same, that decision is and ought to be held to be 
 -res adjudicata. Are the facts, as presented on 
 this appeal, different from those presented at the 
 former hearing ? It will only be necessary, for the 
 purposes of this petition, upon this point, to see 
 what the averments of the two complaints were 
 with reference to the introduction of water into 
 the City, by the San Francisco City Water Works-
 
 '1 
 
 The complaint on the foinior appeal, on this sub- 
 ject read as follows : 
 
 " That the said Corporation known as the San 
 "Francisco City Water Works was by the said 
 fi plaintiff granted various rights and privileges,. 
 " and the same were granted under and in pursu- 
 " ance of Section 1 of an ordinance of the City and 
 " County of San Francisco, which was passed on the 
 11 29th day of August 1859 entitled order No. 172 
 " amendatory of order Xo. 46 and repealing order 
 " No. 65 and order No 92, in relation to the San 
 " Francisco City Water Works ; which said order 
 " wa's ratified and confirmed by an Act of the 
 " Legislature, erTtitled ' an Act to ratify and con- 
 " firm order Xo. 172 of the Board of Supervisors 
 " of the City and County of San Francisco,' ap- 
 proved April 12th 1860 which said Section 1 of 
 " said ordinance so ratified is herewith attached, 
 " marked Exhibit C. and made a part of this com- 
 " plaint, 
 
 " That under and in pursuance of said sec- 
 " tion, the rights and privileges granted to the 
 " said San Francisco City Water Works were ac- 
 " cepted and used by the said corporation and 
 " said corporation did introduce pure fresh water into 
 11 the City and County of San Francisco, through lands 
 " </"!med as belonging to the City and Comity of San 
 *' Francisco (this plaintiff ) in pursuance of said section."
 
 The complaint on the last appeal contained the 
 same matter and also had the following para- 
 graph which constituted the amendment : 
 
 " That heretofore, to wit : between the said 15th 
 " day of June, A. D. 1857, and the first day of 
 " September, A. D. 1858, the said Corporation 
 " known as the San Francisco City Water Works 
 " was by the statutes of this State, and the orders 
 " and ordinances of the Board of Supervisors of 
 " the City and County of San Francisco, in that 
 " behalf duly passed and approved, authorized 
 " and required to introduce into said City and 
 " County pure, fresh water, for fire, municipal "and 
 " other purposes ; which authority last aforesaid, 
 " and the rights thereunder, were accepted by the 
 " corporation last aforesaid ; that while the au- 
 " thority last aforesaid continued, to wit: on the 
 " 16th day of September, A. D. 1858, the corpo- 
 " ration last aforesaid did introduce into said City 
 " and County pure, fresh water *for fire, municipal 
 " and other purposes, and continued from that 
 " time' to introduce water as last aforesaid into 
 " said City and County, until the time of convey- 
 " ance by the corporation last aforesaid unto'the 
 " defendant herein, as hereinafter stated, and du- 
 " ring that time had authority to introduce water 
 " as last aforesaid/' ( Trans, folios 5 and 6.) 
 
 To these three paragraphs, o'f the complaint, 
 the first two also standing in the former complaint,
 
 we beg leave to call the special attention of the 
 Court. The facts stated in them, have at all times 
 stood admitted. We submit that they do not 
 differ, in any essential particular, material to the 
 cause of plaintiff. The first averred postively, 
 that water was introduced under and in pursuance 
 of an order passed in August 1859, This was af- 
 ter the date of the passage of both the Ensign 
 acts, so that there can be no question but that if 
 the San Francisco City Water Works can be held 
 to be the some " other person or persons " 
 contemplated by the Legislature in the passage of 
 those acts, the fact thus averred showed that it 
 was done " thereafter " to wit: after the passage 
 of those acts. The amendment is inconsistent 
 with the original complaint ( which still stands ) 
 in that it fixes the precise date of the introduction, 
 and fixes it at a time prior to the date of the only 
 one of the Ensign acts under which Defendants 
 have any power td introduce water into said City 
 and County. 
 
 We hardly know whether to understand the 
 Court, in its late opinion, as intimating that we 
 practiced a deception upon the Cojirt on the 
 former appeal , in the position which we took in 
 regard to the averments of the complaint or not. 
 We can only disavow any intention to practice any 
 such deception, even if we could have done it, and 
 affirm our continued belief that the position then
 
 taken by us, was correct as to that complaint, and that 
 in our judgment the same position is correct as to 
 the present one. Xeither are we willing to believe 
 that the Court, in making its former decision, 
 either by inadvertence or through the misleading 
 of counsel for respondent, overlooked those two 
 important paragraphs of the complaint; particu- 
 larly so, when attention was called to them in the 
 able brief -of counsel for appellant, in his Analysis 
 of the Complaint. 
 
 And we respectfully submit, th'at there is no in- 
 consistency in the positions taken by us on the 
 two appeals. Our position on the first appeal was 
 that the complaint did not show that the " there- 
 after " mentioned in the Statute had ever come; 
 *- 
 
 that it did not show that water had, since the date 
 of the Ensign Franchise, been introduced into the 
 City by any " other person or persons." Our po- 
 sition at that time was based, not upon the fact 
 that it was not averred that the San Francisco 
 City Water 'JVorks had introduced water into the 
 City after the date of our franchise, but upon the 
 single and sole proposition that the San Francisco 
 City Water Works was not "some other person or 
 persons," within the meaning of the statute, for 
 the reason that it was, at the date of our franchise, 
 a corporation in existence, having the right to in- 
 troduce water, engaged in the construction of its 
 works, known to the Legislature, and its rights 
 protected by the provisions of our act. On the
 
 8 
 
 second appeal, we took the same position as to the 
 amended complaint. This was done on the ground 
 already stated, and on the further ground that it 
 now appears that the San Francisco City Water 
 Works was actually introducing water into the City 
 at the date of the only Ensign Act, which author- 
 izes us to introduce water there at all. This seems 
 to us tlie strongest kind of evidence that the Leg- 
 islature did not intend that the rights or duties of 
 Ensign and his associates should be affected, en- 
 larged, or restricted by the acts of the San Fran- 
 cisco City Water Works. 
 
 We did not dwell at length upon this point, in 
 our last brief, for the reason that we believed that 
 the proposition was clearly understood and affirmed 
 in the former decision, and that a simple allusion 
 to it was sufficient. But it was fully presented by 
 our able colleague, in his oral argument, while we 
 devoted ourselves to the work of trying to show 
 the Court that the new matter in the complaint 
 presented no new fact for the Court to pass upon. 
 
 Again, the Court in its late decision seems to 
 hold that though the former complaint may have 
 contained a sufficient averment, that water had been 
 introduced into the city by the San Francisco City 
 Water Works after the date of the Ensign fran- 
 chise, yet respondents are estopped from claiming 
 that it did, because their counsel on the argument 
 claimed that it did not. This is, to us, a new ap-
 
 9 
 
 plication of the doctrine of estoppel. We con- 
 cede that parties may be estopped \yy their plead- 
 ings, but we never before learned that their rights 
 could be lost by way of estoppel, by the argu- 
 ments of counsel. And, besides it was not claimed 
 by any of the counsel for respondent, that there 
 was no sufficient averment of the introduction of 
 water by the San Fiancisco City Water Works: 
 we only claimed that there was no averment that 
 water had been so introduced by any " other per- 
 son or persons." within the meaning of the statute. 
 
 II. 
 
 The new matter in the amended complaint, even 
 if it does state a new-fact, cannot now be consid- 
 ered by the Court. It appears from the face of 
 the complaint, as amended, that the fact stated in 
 the amendment was one that arose long before the 
 commencement of this suit; presumptively it was 
 within the knowledge of plaintiff at the time of 
 the commencement of this action, and nothing 
 appears in the complaint to rebut that presump- 
 tion. It was, then, a fact which could have been 
 stated and passed upon at the original hearing, and 
 one bearing directly upon the important question 
 then before the Court, and upon which the Court 
 was compelled to pass. If it was not stated, it 
 was the fault of plaintiff, and not of the,Court, 
 and the decision of the Court became and was 
 o
 
 10 
 
 res adjixli-cata as to that fact, the same as if it had 
 been stated. 
 
 We understand your Honors, in your late decis- 
 ion, to hold that, upon the facts as then presented, 
 the former decision is res adjudicata upon the ques- 
 tion of the right of the city to water, free of 
 charge, for municipal purposes, other than the ex- 
 tinguishment of fires. If so, then the same rule 
 applies as against any state of facts which could 
 have been presented at that time. 
 
 " An adjudication is final and conclusive, not 
 only as to the matter actually determined, but as 
 to every other matter which the parties might 
 have litigated, and have had decided, as incident 
 to, or essentially connected with, the subject mat- 
 ter of the litigation, and every matter coming 
 within the legitimate purview' of the original ac- 
 tion, both in respect to matters of claim and de- 
 fence." 
 
 Harris vs. Harris. 36 Barb. 88. 
 
 Clemens *x Clemens, 37 X. Y. 59. 
 
 This action is eminently one to determine the 
 rights of the plaintiff in certain property of the 
 defendant. The Court in its former decision passed 
 upon those rights, as they then existed, upon all 
 points except the one of former adjudication. 
 That decision was final, until the plaintiff shows 
 some right, or some fact giving a right which did 
 not exist at the time of the former decision. Xo
 
 11 
 
 attempt is made to do this. The most that can be 
 claimed is that by the amendment plaintiff has at- 
 tempted to set up a fact which existed at the time 
 of the former decision, but which he says was not 
 pleaded. 
 
 ' To avoid the estoppel, the" losing party must 
 show some other right * * * than that which 
 he had when the estoppel was created. He is 
 bound to show such other right, because his form- 
 er claim of right was determined by the recov- 
 ery." 
 
 Marshall vs. Shatter, 32 Gal. 196. 
 
 The subject matter of the action, and the fact 
 in issue, was the right of plaintiff to water from 
 the works of defendant, free of charge, for general 
 municipal uses. Plaintiffs presented such evidence 
 in support of that fact as they saw fit, and they 
 are bound by the determination of that issue, so 
 far as it is affected by any evidence then existing. 
 
 Capertoii vs, Schmidt, 26 Cal. 479, and cases 
 there cited. 
 
 Jackson vs. Lodge, 36 Cal. 28. 
 
 '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." 
 Kilheffer rs/Kerr, 17 S. and R, 319. 
 
 The former decision is final as to the subject 
 matter then in issue, ;nid as to every other matter
 
 12 
 
 which the parties might then have litigated and 
 have determined. 
 
 Gray et al. vs. Doherty et al.. 25 Cal. 272. 
 
 Under the rule laid down in Emerson vs. San- 
 some, 41 Cal. 552, the introduction of water by 
 some other person or persons, after the date of the 
 former decision, would, according to the terms of 
 that decision, have given the plaintiff a new right, 
 and avoided the estoppel. But there is no pre- 
 tence of suclj, a fact, or of any fact giving a right 
 subsequent to the date of that decision, not pos- 
 sessed at the time, and the decision is, therefore, 
 final upon that point. 
 
 Thompson vs. McKay, 41 Cal. 266. 
 
 Upon the principle laid down in Taylor rs. Castle, 
 42 Cal., 367, if the new matter set up in this com- 
 plaint would have sustained a decision in favor 
 of plaintiff at the former hearing, then the former 
 decision is final and has become the law of the 
 case. 
 
 III. 
 
 And we ask your Honors also to again consider 
 the effect of the Amendatory Act of 1859. We 
 have carefully studied your Honors late decision, 
 and reviewed our own position upon that point, and 
 it is in no spirit of captiousness,but with a realizing 
 sense of the weight due to such an authority, and 
 of our duty to our client, that we again approach 
 that subject. After a full review of the question,
 
 13 
 
 we are unable to see how, under our Constitution, 
 it can be held that the right of the City to take 
 water from these works, or the duty of the defend- 
 ant to furnish it, is given or prescribed by an Act 
 which is to be construed as dating from 1858 ; or 
 why the case of Billings vs. Harvey (6 Cal. 383) is 
 not directly in point. 
 
 The Section 3, under which this right is claimed, 
 or this duty imposed, was passed in 1858. it is 
 true. But what does it amount to if it is left to 
 stand alone ? Strike out section one of the same 
 Act and what is there left for any oth'er part of 
 the Act of 1858 to operate upon ? With section 
 one repealed, the balanco of the Act is all a nuli- 
 ty it all falls to the ground, is worse than waste 
 paper. It then becomes a senseless jumble of 
 words, appearing upon its face to impose duties, . 
 obligations and restrictions upon the enjoyment 
 of a franchise which has no existence. Section 
 three in terms gives the Chief Engineer the right 
 to tap any pipes so laid down, and receive water 
 therefrom. How laid down ? Under section one. 
 With section one repealed all the balance of the 
 Act together gives no power to lay down any 
 pipes ; hence the right to tap becomes an empty 
 right, for there is nothing to be taped. And after 
 the happening of a certain event which it was 
 presumed might happen in the future, as your 
 Honors hold (although we do not wish to be im-
 
 14 
 
 derstood as admitting it) it would be the duty of 
 Ensign and bis associates to furnish their quoto of 
 whatever water might be produced by them under 
 the franchise granted by that Act. But with sec- 
 tion one repealed, there <s no franchise, and the im- 
 posing of the duty becomes a vain act. 
 
 Is section one of the Act of 1858 repealed? 
 Your Honors say that it was reenacted by the Act 
 " of April llth, 1859, in totidem verbis, with the 
 " exception .that the time limited for laying down 
 " the .pipe was to be two years from the passage of 
 u that Act instead of one year from the passage of 
 " the former Act." Granted, and what is the con- 
 sequence ? The Court says ;i its effect was merely 
 to extend the time.'' To extend the time, o'r rath- 
 er tog 'ant a new period within which to lay down 
 pipes which it had been hoped would be laid under 
 the first Act, we concede was one of the effects of 
 this new enactment. Under the ordinary con- 
 struction of statutes, this extension of time might 
 have been its only effect. But we must not for- 
 get that we are acting under a constitutional pro- 
 vision different from that under which this ordin- 
 ary rule of construction has grown up. This new 
 rule, and the 'reason for it cannot be better ex- 
 pressed than was done in Billings vs. Harre>/ Cal. 
 383, and which we here repeat: 
 
 According to the ordinary construction of 
 statutes, a mere amendment would not have the
 
 15 
 
 effect of changing the operations of the Act 
 amended as to time, except so far as the alteration 
 itself is concerned; but under our constitution a new 
 r i il<' /'.s wl opted.- for the amendment of statutes, totally diff- 
 erent from that H'/iich had before prevailed. Section 25 
 of Article IV ordains that 'no law shall be revised or 
 amended by reference to its title; but in such 
 case the act revised or section amended shall be 
 re-enacted and published at length.' 
 
 " From tli'i* language it appears too clear to require 
 argument, that if a statute, or section of a statute, is 
 re-enacted, it is totally inconsistent with the idea that the 
 old statute or section still remains in force, or has vitality 
 for tiny purport' whatever. 
 
 il 1/ie re-enactment </< ."/^>- anew the rule of action, 
 mill eraii. if there were not the slightest difference of 
 phraseology of the two, the latter alone can be referred 
 to an f/if. In a-. ,i,-ul the former stands to all intents 
 (Hid i/'ii'iioses as if absolutely and expressly repealed." 
 
 And we submit that this decision is exactly in 
 point, in determining whether or not section one 
 of the Act of 1858 is repealed. Let us see. A 
 Statute of Limitations was passed in 1850. In 
 1855. an Act was passed amendatory of the for- 
 mer act -precisely* as in this case. By the 
 Act of 1855, section six of the Act of 1850 was 
 'T( --enacted in fotidem verbis" with the addition of a 
 proviso which the Court in considering the case 
 s ays in no manner affects the operation of the
 
 16 
 
 section in the present case, if it is still in force." 
 Thus it will be seen that it would be difficult to 
 find two cases where the lines are drawn nearer 
 parallel than in Billings vs. Harvey and the case at 
 bar, where the question is, what was the 
 effect of the amendment upon the section amend- 
 ed. And the Court held, in the clearest of Ifin- 
 guage, that section six of the Act of 1850 was re- 
 pealed, and the section as re-enacted in 1855. even 
 if there was no difference in the phraseology, could 
 alone be referred to as the /""'. 
 
 This decision has stood as the unquestioned law 
 of this State for seventeen years. It was affirmed 
 by the same Court in the following year ( EMuy* 
 vs. *HaU, 7 Gal. 3) and again in 1860 in Morton /:*. 
 Folger,\b Cal. 284, where the Court,after referring 
 to Billings vs. Harvey say ''the most cogent reasons 
 exist for adherence to the decision there made''- 
 and again in 1864, in Cl<u*e vs. Huber, 25 Cal. 596, 
 the Court re-affirms Billings vs. Harvey, and the 
 other cases,and say, " it is now too late to question 
 the correctness of the rule established by those 
 decisions." If it was too late in 1864 to question a 
 construction of the constitution which had been 
 promulgated by the Conrt of last resort, and pre- 
 vailed for only eight years, ought we not to hesi- 
 tate before we reverse that construction after it 
 has prevailed for seventeen years '\
 
 17 
 
 What follows ? Simply that the Franchise 
 granted to Ensign and his associates by section one 
 of the Act of 1858 has been repealed, absolutely 
 nidified it has no existence for any purpose. Xo 
 franchise was granted by or under any other part 
 of that Act, and the restrictions imposed, and 
 rights giyen by section three, and all the other 
 sections of that Act become inoperative and void, 
 for the want of an object upon which to act. 
 
 IV. 
 
 Always willing, as we have been, whether re- 
 quired by law or not, to furnish water free of 
 charge for the extinguishment of fires, and confi- 
 dent that never since the date of our Franchise, 
 had water been introduced into the City by 
 any other person or persons, we have never seri- 
 ously contended that the" provisions of section 
 three of the Act of 1858 did not apply to us; 
 but have contended ourselves with the proposition 
 that if they did apply, it must be as if passed in 
 1859. Unless so construed, no application could 
 be made of those provisions, for reasons above 
 stated. 
 
 But we now submit the proposition, and in- 
 sist that it is the law that there is no section 
 three to any Franchise under which this defend- 
 ant, as the successor of Ensign and his associates, 
 is or ever has been introducing water into the 
 3
 
 18 
 
 
 City of San Fraiu.-isco. That the only Franchise 
 to Ensign and his associates and successors now 
 in existence is the one found in the Act of April 
 11, 1859. (Exhibit B. to complaint. Trans, it'. 35 
 to 38.) That this franchise is free from any and 
 every condition and restriction, except that three 
 thousand feet of pipe shall be laid within two 
 years from the date of the Act. and water fur- 
 nished to such citizens along the line as may 
 elect to take the same, and the balance of the 
 pipes be laid as soon thereafter as practicable ; 
 and that nothing in it shall inure to or affect the 
 rights and privileges of the Mountain Lake Water 
 Company, or the San Francisco City Water Works 
 Company. This is the only Act now in force, 
 granting any franchise to Ensign and his associates, 
 and these are the only restrictions imposed upon 
 the franchise by that or any subsequent Act. The 
 franchise of 1858 being repealed, the restrictions 
 imposed upon *, fall with it, whether repealed in 
 express terms or not. They cannot be tacked on 
 to a franchise granted by a subsequent Act, unless 
 it is done by legislative enactment, and such is not 
 the case here. 
 
 " Xo law shall be revised or amended by refer- 
 ence to its title, but in such case the Act revised, 
 or section amended, shall be re-enacted and pub- 
 lished at length/' 
 
 Const, of Cal., Art. -4, See. 25.
 
 19 
 
 The Act of 1859 was not an Act to amend a 
 section of the Act of 1858, but it was an act to 
 amend the whok Act of 1858 (Trans, f. 35.) It 
 was therefore the duty of the Legislature to re-en- 
 act and publish at length all that it intended to 
 keep in force of the Act of 1858. A Court will 
 hardly assume that the Legislature neglected a 
 constitutional duty, unless they find in its work 
 some such incompleteness or imperfection as ren- 
 ders the Act nugatory, or that from error in judg- 
 ment or some other cause, the Legislature has 
 passed an Act which in its terms or by necessary 
 implication, violates the constitution. It will 
 hardly be contended that the Act of 1859 is in- 
 complete in itself, or that it is in any respect . un- 
 constitutional. It re-enacts and publishes at 
 length section one of the Act of 1858, wholly 
 omits all reference to the other sections, and 
 gives us as an entire new section, numbered 2 ; 
 the restriction found in section 7~of the old Act. 
 It thus gives us an Act complete in itself, and re- 
 peals so much of the Act of 1858 as to leave the 
 balance inoperative and inefectual, and does not re- 
 enact it. 
 
 The municipality of San Francisco does not 
 therefore possess any more right, power or control 
 in or over the property of this defendant, than of 
 any other person whomsoever.
 
 20 
 
 At first blush it might appear that to carry the 
 rule to the extent here claimed, would endanger 
 the vitality of other statutes which have been 
 supposed to be valid laws. But we think not. It 
 is not often that we find a statute of many sections, 
 where the whole vital part of ft is found in one 
 section, so that that one may be re-enacted by way 
 of amendment, and become a complete law in it- 
 self, leaving all the others out. Nor it is often that 
 by striking one section out of nine, as in this 
 case, all the rest are left so imperfect as to become 
 inoperative and void. The fact that such was the 
 result in this case rendered it unnecessary in 
 passing the Act of 1859, to make any allusion to 
 the remaining sections of the Act of 1858, unless 
 it was intended to re-enact them. 
 
 Again it is the province of the Court, not to 
 make laws, but to declare what is the law in a given 
 case, without reference .to the consequences in 
 any other case. And we are urging no new prin- 
 ciplewe are only urging the Court to adhere to 
 to an old one. Ever since the state was organ- 
 ized, the laws have been made in the light of this 
 constitutional provision, and for seventeen years 
 they have been made in the light of this construc- 
 tion of the constitution. 
 
 As to the consequences in this particular case, 
 they would be simple, fair and 'just. The effect 
 would be simply to declare that this defendant is
 
 21 
 
 the owner of a franchise, granted by the Legisla- 
 ture for the purpose of inducing a combination of 
 private capital to create works to supply a great 
 public want, a franchise in the enjoyment of 
 which it is entitled to the same protection, and 
 subject to^the same duties as other citizens no 
 more, no less ; bound to bear the same proportion 
 of the public burthen in the way of taxation, 
 entitled to the same protection against having its 
 property taken for public use without just com- 
 pensation, but subject to the same law which in 
 times of great peril permits the taking of its 
 property for the preservation of the lives or prop- 
 erty of the community from threatened and im- 
 minent destruction, and in the exercise of its 
 granted street privileges, subject to the same 
 police regulations of the municipality as others 
 that the use shall be so exercised as not to become 
 an abuse. 
 
 With these remarks, and with a reference to 
 the additional points and arguments made by as- 
 sociate counsel who have been at different stages 
 of the case connected with us in its management, 
 and whose arguments are herewith submitted, we 
 respectfully submit the case, and ask that a rehear- 
 ing be granted. 
 
 CHAS. N. FOX, 
 
 AtCy for Respondent. 
 A. CAMPBELL", SR. 
 
 of Ooun*<<l.
 
 IN THE SUPREME COURT 
 
 OF THE 
 
 STATE OF CALIFORNIA, 
 
 THE CITY AND COUNTY OF SAN 
 FRANCISCO, 
 
 Appellant, 
 
 vs. 
 
 THE SPRING VALLEY WATER | 
 Respondent. 
 
 WORKS, \ 
 
 Argument of S. M. Wilson and J. P. Hoge, of 
 Counsel for Respondent, in support of the Petition 
 for Rehearing herein. 
 
 This is the second time this case has been be- 
 fore this Hon. Court on appeal. The decision on 
 the first appeal is to be found reported in the 
 39th Volume of California Reports, at pages 477 
 and following. 
 
 That decision seems to be lull and final upon 
 all the questions upon which the Court passes on 
 the second appeal. The complaint is the same in 
 legal effect now, as it stands in the first record,
 
 24 
 
 and Counsel for the Respondent therefore relied 
 with confidence upon the first decision as being 
 the law of the case, and believed that the second 
 decision would be the same. If they erred in 
 this view they may be pardoned, for it was" the 
 view entertained by the Hon. Judge of the 15th 
 Judicial District, who brought to the determina- 
 tion of the case great clearness of judgment, great 
 learning and long experience as a Judge. 
 
 But this Hon. Court in its last decision does 
 not, as we understand the case, determine as a 
 question of law or of fact, that the complaint in 
 the present record, is different in legal effect from 
 what it was in the first record. The Cour-t does 
 not dispute the well established rule that if the 
 records are in legal effect the same, the decision 
 first made becomes irrevocably the law of the 
 case, however erroneous it may be. This propo- 
 sition has been so often determined by this Court, 
 that it needs but to be stated to be observed. 
 Yet the Court on this second appeal examines 
 the Complaint as res Integra; not because there is 
 a material amendment, not because the establish- 
 ed practice of the Court permits it, but upon the 
 ground of an equitable estoppel, arising out of the 
 argument of Respondent's Counsel on the first 
 hearing. Having disposed of that question in 
 that way, and having determined that the views 
 given in the first appeal in construction of the
 
 25 
 
 statute were obiter dicta, the Court proceeds to 
 consider the statutes anew, and to determine their 
 true construction and meaning. 
 
 The Court deemed it unnecessary to consider 
 the (Question of former recovery or estoppel, set 
 up in the complaint. 
 
 To aid the Court in determining whether a re- 
 hearing should not be granted, attention is res- 
 pectfully invited to a consideration of the follow- 
 ing questions, viz: 
 
 1st. Does the amended Complaint differ ma- 
 terially from the original Complaint? 
 
 2d. If the original and amended Complaints 
 are substantially the same, why is not the deci- 
 sion on the first appeal, the. law of the case on the 
 second appeal ? 
 
 3d. Is the defendant under any of the obliga- 
 tions imposed upon Ensign and his associates, by 
 the Act of April 23d, 1858? 
 
 4th. Did the last named Act ever become a 
 law or go into effect ? 
 
 5th. Is the last named Act constitutional? 
 
 6th. What is the true construction of that 
 Act? 
 
 In discussing these questions, the Complaint in 
 the first record will be called for convenience, the 
 original Complaint, and that in the second record, 
 the amended Complaint.
 
 26 
 
 I. 
 
 The amended Complaint does not differ materially 
 from the original Complaint. 
 
 A comparison of the records on the first and 
 second appeals, will show that the complaints are 
 identical in every respect, excepting that portion 
 of page two of the present record, comprising 
 folios five and six (exclusive of the last line of the 
 page.) 
 
 The simple inquiry is did this materially 
 change the Complaint? The gravamen of the 
 original Complaint in this respect was, that an 
 event had happened, which gave to the City the 
 absolute right to have the water- of the defendant 
 " for fire and other municipal purposes " free of 
 charge ; that the defendant denied this right, and 
 threatened to cut oft* the supply ; and that an in- 
 junction to prevent this was necessary to the pro- 
 tection of the City. It was averred that there was 
 a Water Company called the San Francisco 
 Water Works ; the laws and ordinances of its 
 creation, and affecting its rights and duties 
 were referred to, pleaded, and in part an- 
 nexed as exhibits to the Complaint. In a word. 
 it was shown to be a duly incorporated Water 
 Company for the purpose of introducing water 
 into the City and County of San Francisco, with
 
 27 
 
 power to do so, and that it accepted its privileges, 
 and that " said Corporation did introduce pure 
 fresh water into the City and County of San Fran- 
 cisco, through lands claimed as belonging to the 
 City," &c. (Fol. 9, first record, same as Fol. 8 of 
 second record.) 
 
 The amended Complaint, retaining all of these 
 allegations, only duplicates in the amendment 
 the same averments with a change in dates, or 
 rather, with a date before omitted, and that only 
 averred under a videlicet. Dates are never ma- 
 terial, and even under the old system of pleading, 
 the videlicet was used to indicate that the pleader 
 did not intend to assert a positive date, and in 
 such a connection as that contained in this com- 
 plaint, it will not be contended that a date was 
 material. 
 
 Each Complaint sets forth the existence, and 
 powers, and privileges of the Corporation called 
 the San Francisco Water Works, and each alleges 
 that pursuant to its powers and privileges, it did 
 introduce such water into the City. In order that 
 these allegations as to the introduction of water 
 may be more plainly seen, they are here present- 
 ed in juxtaposition in parallel lines; it being re- 
 membered that in each, the lines quoted are pre- 
 ceded by allegations of authority and power, in 
 the said Corporation, to so act.
 
 28 
 
 Original Complaint. Amended Complaint. 
 
 " That under, and in " That while the author- 
 pursuance of said Section, ; ity last aforesaid continued, 
 the rights and privileges , to wit : On the 16th day 
 granted to the San Fran- ( of September, A. D. 1858, 
 cisco City Water Works j the Corporation last a/ore- 
 were accepted and used I said, did introdit/ce into said 
 by the said Corporation, j City and County, pure fresh 
 and said Corporation did water, for fire, municipal 
 introduce pure Jresh water and all other purposes, and 
 into the City and County of continued," -&c. 
 San Francisco, through \ 
 lands claimed as belonging ! 
 to the City and County of ; 
 San Francisco, (this plain-' 
 tift) in pursuance of said 
 Section." 
 
 The entire yist of the allegation being consid- 
 ered the fact that water was introduced into the 
 City we confidently submit that the averments 
 are identical in substance and legal effect. The 
 language of the law of the 23d April, 1858, (Stat. 
 1858, page 254), at which the pleader was aiming 
 in each case reads as follows, viz : " Up to, and 
 until such time as water shall be introduced into 
 said City and County, by some other person or per- 
 sons." 
 
 The original Complaint contains the averment, 
 that the San Francisco City Water Works " did
 
 29 
 
 introduce pure, fresh water into the City and 
 County of San Francisco." The amended Com- 
 plaint alleges that the same Corporation "did in- 
 troduce into said City and County, pure fresh 
 water for fire, municipal and all other purposes." 
 It is not now being discussed as to whether 
 these avertfients in either Complaint are sufficient 
 to bring the case within the law, but the object 
 is to show that the Complaints in respect to the 
 fact of the introduction of water into the City are 
 alike. 
 
 It will certainly be contended by no one, that 
 the Complaints must be identical, and that any 
 amendment of a Complaint makes a new case, and 
 renders nugatory the first decision of the Court. 
 If so, a party can, on a cause being reversed and 
 remanded, change a date, or vary an averment, 
 and thus claim that the decision of the Supreme 
 Court solemnly made, and upon the same substan- 
 tial facts, is not the law of the case. Such an in- 
 genious method of avoiding the decisions of this 
 Court, has never occurred to the minds of the bar, 
 surely, or it would have been acted on. It has 
 always been regarded as unavoidable, that a de- 
 cision once made in a cause becomes the law of a 
 case, and controls it in all future appeals, unless 
 it comes again with new and substantial facts, 
 that no longer leave the first decision applicable. 
 
 Here the same averments in substance were
 
 30 
 
 made. The same evidence which would have 
 proved the allegations of the original Complaint, 
 would have proved the amended Complaint. 
 According to the first decision, the original Com- 
 plaint would have been bad on demurrer, except 
 for the judgment set forth in -the Complaint as an 
 estoppel ; and it was only because of this alleged 
 judgment, that the cause was remanded to the 
 Court below for further proceedings. Omitting 
 then the judgment from the original Complaint, 
 can it be that that Complaint is bad on demurrer, 
 and that the amended Complaint with the same 
 omission is good ? Can it be that the whole 
 equity in the original Complaint rests on the 
 judgment set forth in it, but that the amended 
 Complaint has an equity in it, outside of, and be- 
 yond the judgment pleaded? It is manifest that 
 this cannot be, and it is equally plain and clear, 
 that if law be a science, each of these Complaints 
 must stand or fall by the same test. 
 
 It does not seem, however, that the Court in 
 its decision has contravened these views, and they 
 have been elaborated to make clearer the proposi- 
 tions that present themselves for consideration 
 under the next point. It will be assumed, there- 
 fore, that the first point cannot be disputed that 
 the amended complaint does not differ materially 
 from the original complaint.
 
 31 
 
 II. 
 
 The original and amended complaints being sub- 
 stantially the same., wlty is not the decision on the 
 first appeal the law of the case? 
 
 In both complaints, and especially upon the 
 first appeal, it was sought to establish the duty 
 of the defendant to furnish water for all munici- 
 pal purposes to the city, as arising from two sour- 
 ces ; first, from the condition of the grant to En- 
 sign and his associates, and second, as the succes- 
 sor of the San Francisco City Water Works 
 being successor to its burdens and obligations, as 
 well as its property and rights. But the Court 
 held "that the rights of the plaintiff in this 
 respect must be ascertained entirely from the 
 conditions of the grant to George Ensign and his 
 associates." (39 Cal. 478.) The Court also held 
 that kt it is not averred that water had been in- 
 troduced into the.Cjty and County by any other 
 person or persons. The City, therefore, is not 
 entitled to the use of water from the pipes of the 
 defendant for other purposes than the extinguish- 
 ment of fires, free of charge, by reason of the 
 Statute." (Ib. 479.) 
 
 Here the Court, with the Statute spread before 
 it, held directly that the averment in the com- 
 plaint did not show that the event specified in the 
 Statute as a necessary occurrence to produce the 
 alleged duty had happened, and that, therefore,
 
 S2 
 
 there was no duty incumbent upon the Company 
 to furnish water free of charge except for fires. 
 
 If the original complaint did not show (in the 
 hm<:iiage of -Mr. Justice Crockett, in his separate 
 opinion, 39 Cal. 483) " that the event has hap- 
 pened," it follows that the amended complaint 
 equally fails to show it. 
 
 In the opinion on the second appeal the Court 
 says that in the first opinion the Court held that 
 "the complaint failed to aver that the event had 
 transpired." 
 
 How this Hon. Court met the question and was 
 enabled to place one construction upon the orig- 
 inal complaint, and another upon the amended 
 complaint, is best shown by the following extract 
 from the last decision : 
 
 " But it is now said that the Court miscon- 
 strued the complaint, and that it did in fact con- 
 tain the averment which was assumed to have 
 been omitted. However this may be, the de- 
 fendant is estopped from raising the point. The 
 adjudication of the Court, as to the character of 
 the complaint and its legal effect, has become 
 the law of the case, and it is too late now to in- 
 quire into its correctness. It may be remarked, 
 however, that if the Court fell into an error in 
 the particular referred to, the counsel who now 
 raises the point fell into the same error ; for on 
 referring to his brief on the former appeal, we
 
 33 
 
 find the statement that ' the complaint not only 
 fails to show, but it positively negatives the prop- 
 osition that any other person or persons have in- 
 troduced water into said City and County.' The 
 defendant has had the benefit of a favorable ruling 
 by this Court, on the assumption that the above 
 statement was true ; and we are now asked to 
 decide that the plaintiff shall be precluded from 
 supplying the omitted averment, on the ground 
 that it is not true that the omission existed. But 
 the defendant will not be permitted to claim the 
 benefit of our former ruling and at the same time 
 to repudiate the existence of the assumed fact on 
 which the ruling was based. We are, therefore, 
 of opinion that we are not precluded on this 
 appeal from considering the legal effect of the 
 averment in the second amended complaint in 
 respect to the introduction of water by the San 
 Francisco City Water Works, in September, 
 1858." 
 
 As to the estoppel said to arise from a former 
 argument in a cause, we respectfully urge that a 
 cause must be tried on the record and on the 
 record alone. The argument of counsel is to be 
 regarded only so far as it produces conviction on 
 the mind of the Court. The judgment is that 
 of the Court alone, and all its responsibilities at- 
 tach to the Court alone. If counsel misappre- 
 hends a point or misconceives the law, or mistakes 
 5
 
 34 
 
 the facts or erroneously construes a complaint, it 
 is his misfortune ; but if he is free from fraud in 
 the matter, can it be that the unfortunate client 
 is to be visited with a penalty for such innocent 
 error ? If counsel ' intentionally misleads the 
 Court, it is a matter personal to him, and the 
 Court should deal with him individually for it, 
 But it is to be noted that, the Court does not 
 charge the counsel from whose brief the extract 
 in the opinion of the Court is made, with having 
 made an intentional, misstatement, nor with hav- 
 ing misled the Court ; indeed it is not even as- 
 sumed that the Court relied upon that statement. 
 It is hardly to be supposed, that in determining 
 a demurrer to the complaint, the Court did not 
 itself read the entire complaint. That this part 
 of the complaint, was brought prominently before 
 the Court, is shown by the able brief of the former 
 City Attorney, Mr. Nouges. At page three of his 
 brief on the first appeal, will be seen his analysis of 
 the complaint, presenting in bold relief the aver- 
 ments in the complaint on the subject of the introduc- 
 tion of the water into the city. It is clear from the 
 opinion of Mr. Justice Temple in the case, on the 
 first appeal, that he carefully canvassed the whole 
 complaint, and that nothing escaped him. It is, 
 therefore, irresistible that the Court in its decision 
 was construing the complaint,and that the averment 
 so much relied on by the City was held not to meet 
 the event contemplated by the Statute in other
 
 35 
 
 words, that an averment that the San Francisco 
 City Water Works did introduce pure fresh water 
 into the City was not equivalent to an averment 
 that the event referred to in the Statute had hap- 
 pened. 
 
 In the brief of Messrs. McAllister & Bergin, of 
 counsel for the respondent (page 7), this averment 
 of the complaint is expressly referred to. They 
 say in reference to the allegations of the complaint 
 in connection with the San Francisco City Water 
 Works: "but while it is alleged that the Com- 
 pany accepted and used them, and introduced 
 pure fresh water into the city, the complaint is 
 silent as to when the Company commenced to do 
 so." 
 
 The Court must be held to have examined the 
 complaint fully, and its error, if it be one, was 
 not in overlooking the averments to which atten- 
 tion has been called, but in the construction 
 placed upon it. It is plain that the Court did 
 construe the complaint, and in the language of 
 the last decision, " the adjudication of the Court, 
 as to the character of the complaint and its legal 
 effect, has become the law of the case, and it is too 
 late now to inquire into its correctness.'''' 
 
 With all deference to the Court, be it said that 
 defendant's counsel do not say " that the Court 
 misconstrued the complaint ;" on the contrary they 
 assert that the Court construed it, and by that
 
 construction it was held that the event, which was 
 to change the rights of the city, had not been 
 shown to have transpired. And such being the 
 construction, it was an " adjudication of the 
 Court as to the character of the complaint and 
 its legal effect and has become the law of the 
 case, and it is too late to inquire into its correct- 
 ness." We then accept, as we must, the first 
 decision as correct. Now, when the old aver- 
 ment of the complaint is duplicated when an 
 amendment is made which is a mere repetition of 
 what was there before it is said that counsel 
 having asserted that the complaint with the first 
 averment was defective, are estopped to question 
 its sufficiency after the repetition. Logically 
 considered, a defective averment is still defective 
 when repeated. Logically, a construction of an 
 allegation is not changed because it occurs a sec- 
 ond time. Logically considered, " the law of the 
 case " as to an averment, created by a first decis- 
 ion, continues the law of the case as to the same 
 averment ever after. Can it be maintained that 
 when a construction is given to a complaint and 
 " the adjudication of the Court as to the charac- 
 ter of the complaint and its legal effect has be- 
 come the law of the case, and it is too late to 
 inquire into its correctness," that a simple repeti- 
 tion of a part of what is already there avoids the 
 decision and opens the case up for a new and 
 different determination ? If it be so, that rule
 
 37 
 
 sometimes thought very severe that iron chain 
 that has firmly held many a case on its second 
 appeal will prove but a rope of sand. Can 
 that be a rational system which permits an aver- 
 ment held defective on a first appeal to be held 
 sufficient on a second appeal and " the law of the 
 case" avoided, simply because the averment is 
 repeated under the guise of an amendment ? 
 And should counsel be estopped from questioning 
 the averment the second time and applying the 
 rule, because he questioned it the first time ? 
 
 It is confidently urged that the Court can, con- 
 sistently with fixed principles of law, look only 
 at the record itself and the decision upon it; and 
 if upon the second appeal the record is found to 
 be substantially the same, the first decision as 
 "the law of the case" must control. 
 
 When the identity of the records is established 
 the rule invoked cannot be evaded or avoided by 
 an inquiry into the reasons of the decision or the 
 causes which led to it. It is then too late. In 
 the clear language of the last decision " the 
 adjudication of the Court as to the charac- 
 ter of the complaint and its legal effect has 
 become the law of the case, and it is too late now 
 to inquire into its correctness." The Court then 
 did on the first appeal determine " the character 
 of the complaint and its legal effect ;" and that 
 determination " became the law of the case." 
 
 353816
 
 38 
 
 Being the law of the case, it must now hold the 
 same complaint to be of the same legal effect as 
 it always was. 
 
 In the subsequent points it will be shown that 
 the averment in the complaint does not satisfy 
 the statute, though on this subject reference is 
 made to the able views of the learned counsel on 
 the part of the respondent herewith presented. 
 
 III. 
 
 The defendant is not under any of the obligations 
 imposed upon Ensign and his associates by the Act 
 of 23rd April, 1858. 
 
 The complaint (at folio 3) alleges that the de- 
 fendant "is a corporation duly organized and act- 
 ing under and by virtue of an Act of the Legisla- 
 ture of the State of California entitled, 'An Act 
 for the incorporation of Water Companies,' ap- 
 proved April 22d, 1858." 
 
 This act is to be found in the Statutes of 1858, 
 pages 218 and following. By reference to that 
 Statute we find that the Act of April 14th, 1853, 
 providing for the formation of corporations for 
 certain purposes, (Statutes 1853, page 87) and the 
 Act amendatory thereof passed 30th April, 1855, 
 (Statutes 1855, page 205) are made to extend and 
 apply to all corporations then already formed, or 
 that might be formed thereafter, to supply cities 
 and their inhabitants with pure fresh water.
 
 39 
 
 These laws referred to in the Act of 22d April, 
 1858, and that Act itself, constitute the general 
 laws, therefore, under which the defendant was 
 created, and from which it derives its powers. 
 Beyond these we need not look and cannot look, 
 for the Constitution itself, the paramount law of 
 the land, declares in most unequivocal language, 
 that " Corporations may be formed under general 
 laws, but shall not be created by special act, except 
 for municipal purposes." The defendant not being 
 a municipality the exception has no application. 
 The Constitution having therefore limited the 
 formation of such corporations to "general laws," 
 and the complaint having specifically designated 
 the "general laws" under which the defendant 
 was formed, we look to those general laws alone 
 for the powers of this corporation defendant. 
 
 Section 2 of that Act of April 22d, 1858, gave 
 the defendant "the right to purchase, or to appro- 
 priate, and take possession of, and use and hold 
 all such lands and waters as may be required for 
 the purposes of the company upon making. com- 
 pensation therefor." The power of condemnation 
 is then given. 
 
 Section 3 is a general equalizing clause put- 
 ting all water companies upon an equality as to 
 "privileges, immunities and franchises." 
 
 Section 4 defines the duties and provides for 
 the rate of charges.
 
 40 
 
 Section 5 gives the corporation the right " to 
 use so much of the streets, ways and alleys in any 
 town, city, or city and county, or any public road 
 therein, as may be necessary for laying pipes or 
 conducting water into any such town, city, or city 
 and county, or through or into any part thereof." 
 This right, to be sure, is subject to the reasonable 
 direction of the Board of Supervisors, or city or 
 town authorities, as to the mode and manner of 
 exercising such right, but this would have been 
 necessarily implied and attached to the right, for 
 all rights must be exercised in a reasonable mode 
 and manner with respect to the rights of others. 
 " The right" to lay the pipes in the streets comes 
 from the law, and that is enough for the purposes 
 of the argument. 
 
 We then have the defendant corporation, or- 
 ganized under these general laws and with the 
 general powers and rights and duties above re- 
 ferred to. Immediately upon its organization it 
 became an artificial person a legal entity pos- 
 sessed of no property at all but entitled to ac- 
 quire property and endowed with certain powers 
 and rights which it might exercise. It continued 
 through some lapse of time, however short, in 
 this predicament. Though on filing its certificate 
 of incorporation in the office of the County Clerk 
 the signers of the certificate became a body politic 
 and corporate, yet it could not act or even re- 
 ceive anything until the first meeting of its trus-
 
 41 
 
 tees, to accomplish which required time and a 
 compliance with the law (Stat. 1853, page 88, 
 sec. 8). 
 
 It is therefore clear that, though the complaint 
 avers that the defendant corporation "has become 
 and is the owner of all the franchise granted one 
 George Ensign," etc. (complaint, fol. 3), yet its 
 organization under the general laws was a neces- 
 sary preliminary to become the recipient of these 
 franchises, and that very organization had already 
 clothed it with all the powers and duties specified 
 in the law. 
 
 But what franchise did Ensign and his associ- 
 ates have under the Act of 23d April. 1858 ? It 
 is manifest that the franchise was far less than 
 that already possessed by the defendant corpora- 
 tion. It had, under the law of its creation, the 
 unrestricted right "to use so much of the streets, 
 ways and alleys " of the " city and county and 
 any public road therein, as may be necessary for 
 laying pipes for conducting water into such town, 
 city, or city arid county, or through any part 
 thereof." (Stat. 1858, page 219). It even had 
 the power of condemnation. But Ensign and 
 associates had merely the right to lay down such 
 water pipes under great restrictions, and with 
 severe limitations as to time and in other particu- 
 lars. What, therefore, could Ensign and his 
 associates give to the defendant by way of power 
 6
 
 42 
 
 and privilege and franchise that it did not already 
 possess ? 
 
 An assignment by Ensign and associates of 
 their limited and restricted franchise to the de- 
 fendant, already possessed of the same franchise 
 without the limits or restrictions, could have but 
 one legal effect, and that would be to deprive 
 Ensign and associates of their franchise or in 
 other words, practically to extinguish it. The 
 assignee would get nothing, for after the assign- 
 ment he would have nothing that he did not have 
 before. This may be illustrated in various ways : 
 Suppose A has a right of way across B's farm, 
 along a certain private lane, at all hours, and with 
 all kinds of vehicles ; and that C and his assigns 
 have a right of way along the same lane, but are 
 limited to certain hours and certain kinds of vehi- 
 cles. Let C assign all his right of way to A ; C 
 merely extinguishes his right to enjoy it personal- 
 ly, and the lesser right assigned to A is merged in 
 his larger right previously existing, and which 
 continues unaffected by the transfer. 
 
 Again: A has a power of attorney to grant, bar- 
 gain, and sell land under full covenant of general 
 warranty and for cash or on credit. B has from 
 the same constituent, a power of sale, but limited 
 to sales for cash, and by way of quit claim only, 
 and with power of substitution. Let him substi- 
 tute A, and A will take no new power not before 
 possessed, and the original power will remain un- 
 affected.
 
 43 
 
 In the very nature of things, then, the defendant 
 corporation could get nothing from Ensign and 
 his associates by becoming owner of their franchise. 
 The complaint is limited, in this regard, to a sim- 
 ple allegation that the defendant is the owner of 
 that franchise. It is no where averred that the 
 property, even of Ensign and associates, was con- 
 veyed to the defendant; nor that the defendant 
 ever exercised, used or in any manner enjoyed 
 the franchise granted Ensign and his associates. 
 
 Whilst it is averred that after the 13th day of 
 February, 1865, the defendant did supply the City 
 with water (folio 13), it is not alleged to have been 
 done under any particular franchise or power, and 
 all that it is alleged to have been done is referable 
 to its general powers and rights as a water Com- 
 pany under the general law. 
 
 Perhaps a short history of the Ensign Act 
 may make the above views clearer. In the 
 original Statute of 1850, on the subject of in- 
 corporations, there was no provision for incorpor- 
 ating Water Companies, but on May 3d, 1852, 
 (see Stat. 1852, page 171,) an Act was passed 
 " To provide for the incorporation of Water Com- 
 panies," which made the provisions of Chapters 
 one and five of the Statute of 1850, applicable to 
 Water Companies. The Act of 1852, however, 
 (Sec. 3,) instead of giving Water Companies the 
 general right to supply cities with water, express-
 
 44 
 
 ly limited them to cases where they should be 
 " previously authorized by ordinance, or unless it 
 be done in conformity with a contract entered 
 into between the City and the Company." This 
 remained the law down to the time of the passage 
 of the Act of the 22d April, 1858, above referred 
 to, and under which the defendant was incorpor- 
 ated. That law removed the restrictions and lim- 
 itations placed upon Water Companies by the 
 Act of 1852. The Ensign Act, however, must 
 have been introduced as a bill, before one of the 
 houses of the Legislature, long before the Act of 
 April 22d, 1858, was passed, for the Ensign Act 
 itself was approved on the next day, the 23d 
 April, 1858. The Ensign Act was intended to 
 relieve him and his associates from the necessity 
 of procuring from the City authorities, an ordi- 
 nance to allow them to supply the City with 
 water, or entering into a contract. There was 
 doubtless a great rivalry between Water Compa- 
 nies, and Ensign and associates applied to the 
 Legislature for the right, rather than to the Su- 
 pervisors of the City and County. No doubt the 
 discussion of the Ensign Act before the Judiciary 
 Committees of the Legislature, demonstrated the 
 folly of restricting any one in the introduction of 
 water into Cities, and the danger of giving Cities 
 and Towns such power for evil, as the Act of 1852 
 gave. The result was the introduction and pas- 
 sage of the Act of 22d April, 1858. It and the
 
 45 
 
 Ensign Act were pending in the Legislature to- 
 gether ; they doubtless went to the Governor to- 
 gether for his approval; arid doubtless the mere 
 difference of one day in the dates of the respect- 
 ive approvals, was merely accidental. The En- 
 sign Act had been passed in fear that the general 
 Act might not pass. When it did pass, it met the 
 evil that prevailed before, it destroyed the power 
 of the authorities of the City over the subject, ca- 
 pable of being used in a most fraudulent manner, 
 and it gave any Company the right to enter into 
 competition with any other, and to supply whom- 
 soever it might obtain as a customer. 
 
 The Ensign Act, therefore, became and was on 
 its approval, entirely impotent. The general 
 Act covered the same subject matter, and the de- 
 fendant incorporated under the general Act. 
 
 We therefore submit that, as the defendant 
 exercised no privilege or franchise which it did 
 not possess under the general law, no duties or 
 burdens attached to it except under the general 
 law. * 
 
 That the Corporation defendant could not de- 
 rive any rights or powers under the Constitution 
 of this State from any source other than the gen- 
 eral laws, will be presented under one of the 
 subsequent points.
 
 46 
 
 IV. 
 
 It does not appear that the Ensign Act (of 23d 
 April, 1858,) ever became a law, or went into effect. 
 
 Referring to this Act which is annexed to the 
 Complaint as Exhibit A, we find in Sec. 8, (Fol. 
 34, et seq). the following provision, viz : 
 
 " This Act shall not take effect, unless the par- 
 ties named in Section 1, shall within sixty days 
 after its passage, duly organize themselves in con- 
 formity with the existing laws, regulating corpor- 
 ations, now in force in this State." 
 
 Now this Act is a private Act, and not as a gen- 
 eral rule to be noticed judicially by the Court. 
 The Court only notices it because it is specially 
 pleaded, but when specially pleaded, we find that 
 it is not to take effect until the happening of an 
 event ; of the happening of that event, the Court 
 cannot take judicial notice, and the Complaint 
 nowhere avers that Ensign and his associates did 
 organize themselves within the sixty days, or any 
 other time. It is nowhere averred that the Act 
 did take effect. 
 
 Again, the privileges granted Ensign and his 
 associates were conditional. They were (by Sec. 
 1, Fol. 28,) to lay down 3,000 feet of pipe within 
 one year. There is no averment on this subject 
 nor anything to show that no forfeiture occurred. 
 
 In this connection it is to be remembered, that
 
 47 
 
 every intendment is to be taken most strongly 
 against the pleader. 
 
 Collins vs. Butler, (14 Cal., 227.) 
 Sparks vs. De la Guerra, (Ib. 111.) 
 Green vs. Oovilaud, (10 Ib. 322.) 
 Dye vs. Dye, (11 Ib. 167.) 
 
 We therefore confidently submit that upon this 
 point alone, the judgment of the Court below 
 should be affirmed. 
 
 V. 
 
 The Ensign Act is unconstitutional. 
 
 Attention has already been called to the provi- 
 sion of the Constitution of this State, (Art. 4, 
 Sec. 31,) which prohibits any such Corporation 
 as a Water Company from being " created by 
 special Act," and making it necessary that they 
 should ; ' be formed under general laws." The 
 object is manifestly to do away with all the abuse, 
 corruption, fraud and wrong, done under the old 
 system of Special Charters. The Constitution, 
 therefore, very wisely places a positive check on 
 the Legislature, and in direct terms declares, that 
 only " general laws " shall be passed on this sub- 
 ject, These " general laws " remain the law of 
 the land throughout time. Any body of men, for 
 any of the purposes permitted, may become incor- 
 porated. All are upon a common platform, and
 
 48 
 
 all have equal rights, privileges, immunities, fran- 
 chises and powers. . They enter into the business 
 under the keen spirit of competition, and the odor 
 of monopoly is dispersed. Each is put upon its 
 good behavior, and each must look to its own en- 
 terprise and energy for success. 
 
 Corporations thus become what they should be 
 an aggregation of capital for great enterprises, 
 beyond the limits of ordinary fortunes having 
 the machinery of a body politic and corporate, 
 and being an artificial person protected from dis- 
 solution by the death of one of its members. But 
 it still remains subject to Legislature control, and 
 its very organization may be changed, and the 
 law, from which it derives life, may itself be re- 
 pealed. 
 
 What does the Constitution mean by the lan- 
 guage, that '" Corporations may be formed under 
 general laws, but shall not be created by special 
 Act?" It certainly did not refer to mode and 
 manner, merely of -legislation on the subject. It 
 had a deeper meaning, a more profound intention, 
 a much sounder policy. It certainly had in view 
 the powers, privileges, franchises and immunities 
 of Corporations, and none of these were left to spe- 
 cial legislation, but were required to be given 
 controlled and limited by the general laws on the 
 subject. The Corporation itself is a franchise, 
 and is defined by Mr. Justice Blackstone to be a
 
 49 
 
 franchise. He says it is " a franchise for a num- 
 ber of persons to be incorporated and exist as a 
 body politic, with a power to maintain perpetual 
 succession, and to do corporate acts, and each in- 
 dividual of such Corporation is also said to hav e 
 a franchise, or freedom." 
 
 2 Bl. Comm. 37. 
 
 See also Dartmouth College vs. Woodward, 
 4 Wheat. 657. 
 
 If these corporate powers be then franchises, 
 we must look to the general law for all the fran- 
 chises any corporation can enjoy. If it does not 
 enjoy them under the general law, under what 
 law does it hold them ? The extent of the fran- 
 chises of a corporation is to be determined by the 
 charter. (Auburn and Cato Plank Road Co., vs. 
 Douglass, 9 N. Y. R. 451.) 
 
 Mr. Bouvier, in his Law Dictionary, ( Word 
 franchise,) says in regard to franchises, "In the 
 United States they are usually held by corpora- 
 tions created for the purpose, and can be held 
 only under Legislative grants." He cites a large 
 number of cases. Apply to this the language 
 of the Constitution of California prohibiting 
 special acts and requiring all corporations to be 
 formed under general laws, and the result seems 
 plain that the general law must be regarded 
 alone in determining the franchises which may be 
 7
 
 50 
 
 enjoyed by a corporation, and that it can have 
 none but what the general law gives. 
 
 These corporate franchises were held, in the 
 great Dartmouth College case cited, to be invio- 
 lable, and that they were protected by the Con- 
 stitution of the United States as contracts. 
 For this rea'son, also, our Constitution pro- 
 hibited special acts, and made all the general 
 laws liable to alteration or repeal at the will 
 of the Legislature. The power to alter or 
 amend is limited to the general laws and the 
 special acts relating to municipalities. If any 
 special act can give powers and privileges to a 
 particular corporation, it follows within the prin- 
 ciples of the Dartmouth College case, that a con- 
 tract results, which, under the Constitution of 
 the United States, is inviolable. There is then 
 but one rule of safety under the Constitution of 
 the State, and one mode alone of maintaining its 
 manifest policy ; and that is to confine all corpor- 
 ations to the general law under which they are 
 formed, and den}dng them any powers, privileges 
 or franchises derived from any special law. 
 
 The Ensign Act seems to be an ingenious at- 
 tempt to evade the Constitution an attempt to 
 comply with the letter, but a design to accomplish 
 what its spirit forbids. A franchise was "created 
 by special act" and given to " George H. Ensign 
 and his associates." In Section 1, it is called a 
 " right," in Section 6, a " privilege," whilst in
 
 51 
 
 Section 5, it is called a " franchise." But the en- 
 tire vesting of these rights, privileges and fran- 
 chise all depend (by Section Eight) upon the con- 
 dition precedent that Ensign and his associates 
 shall " duly organize themselves in conformity 
 with the existing laws regulating corporations 
 now in force in this State." 
 
 Xow is it not indisputable that the Legislature 
 intended that "Ensign and his associates" should 
 not have, take, or enjoy these franchises as indi- 
 viduals? Is it not manifest, that they would take 
 merely as corporators? Was not the whole law 
 made to " take effect" only by virtue of the act of 
 becoming incorporated ? After that act of incor- 
 poration, would not the company take the fran- 
 chise rights and privileges granted, as the in- 
 tended grantee ? We respectfully submit that 
 words cannot make this plainer ; and that if the 
 Court connot look through the flimsy guaze-work 
 which covers this Act, the Constitution itself, is 
 too easy of evasion to afford any protection 
 against legislative power. 
 
 We respectfully submit that the Ensign Act is 
 unconstitutional. 
 
 VI. 
 
 What is the true construction of the Ensign Act ? 
 It is claimed on the part of the plaintiff that the 
 defendant, ever since the 16th September, 1858,
 
 52 
 
 has been under an obligation to furnish to the 
 City and County all the water it needed for fire 
 and all other municipal purposes, free of charge; 
 and that that obligation continues and will con- 
 tinue during the corporate existence of the defen- 
 dant. At the date of the Ensign Act (23d April, 
 1858,) the City and County of San Francisco 
 contained a population of about eighty thousand 
 souls ; it has grown to be a city of about one hundred 
 and eighty thousand. New streets have been opened 
 and its sewers have in the mean time been extended 
 many miles. Its demands, for protection against 
 fire, have greatly increased, and the power of 
 steam, to exhaust the water, has taken the place 
 of the slow work of the human arm. The hospitals 
 almhouse, prisons, and other public buildings have 
 been enlarged and increased, and each has its de- 
 mand for more water. New public squares have 
 been laid out, improved and planted in grass and 
 shrubbery, and to their very existence large sup- 
 plies of water are needed. Innumerable streets 
 are to be watered. At last comes the great 
 park, miles in extent, with thousands of young 
 trees, innumerable plants, and in prospect large 
 grassy lawns and numerous artificial lakes, foun- 
 tains and rivulets. The squares and parks are 
 4 the lungs of the cities," and are claimed to be 
 necessary to health and beauty and morals. They 
 must have water, and without water they cannot 
 exist. In the future the demand for water must
 
 53 
 
 increase as much as in the past, and it is claimed 
 that free of all charge, this great municipal de- 
 mand, must be supplied by defendant " to the full 
 capacity of the said water works." 
 
 The reason why the defendant is bound to fur- 
 nish this amount of water throughout all time is 
 because it was granted the privilege of supplying 
 the citizens with pure water a privilege that any 
 water company could enjoy without bearing the 
 burden. 
 
 The proposition, we submit, shocks one's sense 
 of justice; it is revolting to all ideas of right. 
 Were it a private contract between two indivdu- 
 als, it would not be enforced, because of being 
 unconscionable; it would be set aside, on the 
 ground that the defendant had been overreached, 
 and that in conscience it ought not to be bound. 
 
 In construing a contract or a law, it is legiti- 
 mate to look at the results which follows any par- 
 ticular construction, and if one construction be in 
 results, just and fair, and has duty and compensa- 
 tion corresponding and adequate; and the other 
 is manifestly unfair and unjust, having a duty en- 
 tirely disproportioned to the compensation we may 
 rationally claim the first to be the true construc- 
 tion. 
 
 We have shown above, the result of the one con- 
 struction of the law and the enormity of the plain- 
 tiff's demands. All that the defendant claims, is
 
 54 
 
 that furnishing all the water needed for the extin- 
 guishment of fire to the full capacity of the said 
 water works, pending the fire, free of charge; it 
 ought to receive a just compensation for water 
 supplied for other municipal uses, the rate or price 
 to be fixed by a fair Commission. 
 
 What is there in the act referred to, that renders 
 this construction impossible ; we do not say irra- 
 tional, for we respectfully submit that we have 
 already shown this to be the only rational con- 
 struction ? The benefit to the company was not 
 so "great, that it should perform this onerous duty 
 for the privilege granted it; for that privilege was 
 no monopoly. Any body of persons could form a 
 water company in competition and exercise the 
 same rights the defendant enjoyed, without any 
 corresponding burden. 
 
 Such considerations drive our opponents from 
 the field of argument; they only can make a stand 
 on the supposed letter of the law; and to the lan- 
 guage of the Act we now turn. 
 
 Let us take notice here that the 4th Section 
 applies not only to supplies of water under Sec- 
 tion 1, but also to supplies under Section 3. 
 Very little reflection, we submit, makes this clear. 
 Until the introduction of water into the City and 
 County by some other person, the company is 
 only bound to furnish to the City, free of charge, 
 water for fires, during the pendency of the same.
 
 55 
 
 It may therefore charge the City for water, for 
 other municipal uses. The price to be charged 
 to the city, for such water (with the exception of 
 fires, and on the assumption that no other person 
 has yet introduced water), is, of course, not 
 arbitrary in the company but is to be fixed by 
 the Commission. The result then is, that at 
 the time now referred to, the words in Section 4, 
 viz.: " with the exception mentioned in Section 
 3," refer, merely and only, to the case of fires. 
 We have therefore given that language an appli- 
 cation, and the only application necessary to give 
 each part of the Section a legal effect and mean- 
 ing. The result is (no water having been intro- 
 duced by any other person) that the Company 
 must furnish water for fires, -during the pendency 
 thereof, free of charge, but may charge the city 
 for water for other municipal purposes, and may 
 charge citizens. The price and rates for both these 
 supplies to the city and to the citizens is to be 
 fixed by the Commission. In other words, we 
 have three cases: Jirst, a supply of water to the 
 city for fires free of charge; second, a" supply of 
 water to the city for other municipal purposes at 
 a rate or price fixed by the Commission; third, a 
 supply to the citizens, at the same rate or price 
 fixed by the Commission. This condition of 
 things might run on forever, or it might be changed 
 by the event of water being introduced by another 
 person. But what change does that event pro-
 
 56 
 
 duce ? The statute only mentions one, and that one is 
 not as to price, but only as to the quantity of water to be 
 furnished the city. 
 
 Instead of being compelled to supply the City 
 with all its wants for fires, free of charge, and 
 for other municipal purposes, at the rates fixed 
 it is now only compelled to furnish its quota or 
 proportion for either or both purposes. How 
 can it be said that this provision specifically pro- 
 viding for charge of quantity, merely, necessarily 
 or rationally applies to a change as to place? It 
 is argued that as after the event referred to, as 
 well as before, the water must be furnished for 
 fire, free of charge, so it must be furnished for 
 other municipal purposes, free of charge. This 
 we think a non sequitur. The. regulation is as to 
 quality merely, and if the right to charge ^as in- 
 tended to be changed, it would not have been left 
 to mere inference. So important a matter would 
 have been more plainly referred to. 
 
 Xothing against the right to charge, can be in- 
 ferred from the words in Section 3, ' shall furnish 
 for fire and other municipal purposes," and, be- 
 cause in section 1 it is made the duty of the Com- 
 pany to furnish citizens, along the line of pipe, 
 with water. Of course they are to be charged. 
 
 But it may be asked why the Company was only 
 to furnish its quota of water for municipal pur- 
 poses, other than fires, if it could charge for such
 
 57 
 
 supply, and why the city could not continue to 
 take all its water from one company? The an- 
 swer, we think, is that as the burden, in case of 
 fire, was to be proportionally borne by the re- 
 spective companies, so the right to supply the 
 city for " other municipal purposes," for a price, 
 was to be proportionally shared, otherwise one 
 company might be furnishing a large quota for fires, 
 free of charge and yet get no share of the city's 
 patronage, for other municipal purposes. The 
 point aimed at was exact equality between com- 
 panies, and impartiality to all. The Ensign Act, 
 itself, in Section 7, shows the existence of two 
 other companies at that time the Mountain Lake 
 and the San Francisco City Water Works. At 
 the same time, Section 3 of the Act of the 22d of 
 April, 1858, passed the day before the Ensign Act, 
 placed all water companies, already incorporated, 
 or that might thereafter be incorporated, upon an 
 exact equality as to " all privileges, immunities 
 and franchises." 
 
 As before observed, the word "exception" in 
 Section 4 of the Ensign Act, clearly is limited to 
 the case of fires, if there be no water introduced 
 by another person, and it must be read exactly as if 
 it said, " with the exception of water for the ex- 
 tinguishment of fires." Having that definite 
 meaning, we cannot see how that meaning would 
 become changed afterwards, and how the singular
 
 58 
 
 number u exception" could become plural and em- 
 brace a new category of a distinct character. 
 
 If we are not right, another curious result is 
 found. Let us suppose water to be introduced by 
 another person, and let us take the construction 
 claimed that thenceforth the two companies 
 must furnish water free of charge, in fair propor- 
 tion, for all municipal purposes. This result is 
 produced by the introduction of no particular 
 amount of water the introduction of water from 
 the most insignificant spring would do. The de- 
 fendant may have been supplying many millions 
 of gallons per day, and the new person introduces 
 only one hundred gallons; yet the result is, that 
 the defendant, instead of having the city for a 
 customer for water for its general municipal pur- 
 poses, for a reasonable price, is bound to supply 
 the city without charge, its quota, or the propor- 
 tion that so many millions bears to one hundred 
 gallons. 
 
 But these curious results do not stop here, for 
 we must take all possible contingencies, and con- 
 sider what the consequences would be if the new 
 company should, after introducing its water, fail 
 and no longer supply its quota. In fact, the com- 
 plaint presents this very condition of things as 
 having happened. 
 
 It is shown that the San Francisco City Water 
 Works " ceased to exercise any of said franchises, and
 
 59 
 
 the said defendant is and since then has been the 
 only corporation or person engaged in introducing 
 pure, fresh water into said City and County of 
 San Francisco." What change is here again pro- 
 duced? After this event, is it the duty of the 
 defendant to continue only to furnish its quota, or 
 must it now furnish all ? Or does the defendant 
 become restored to its original position ? It 
 would seem but fair, that if by reason of the in- 
 troduction of water by another person, the de- 
 fendant was compelled to furnish its quota for all 
 municipal purposes, then, when the new company 
 failed and the reason ceased that the rule should 
 cease, and the defendant be restored or re-invested 
 with its original right to charge, for all purposes, 
 other than fire. 
 
 But certainly it could not be that after such 
 failure, more than the established quota would 
 have to be furnished. It could not be that the 
 event of the introduction of water by another 
 company, would take away from the defendant 
 its right to charge for supplies for general muni- 
 cipal purposes (other than fires), and require the 
 defendants to furnish its quota free of charge, and 
 that as a consequence of this and the subsequent 
 failure of that other company, would arise new 
 obligations on the part of the defendant to 
 furnish not only its own quota, but also the 
 proportion of the failing Company ! Yet this 
 is the position of the plaintiff. The proposi-
 
 60 
 
 tion is coldly asserted, that whilst the San Fran- 
 cisco City Water Company furnished water, it and 
 the defendant were obliged to supply to the city, 
 each its quota; and now that the City Water 
 Works has ceased to furnish its supply, the defen- 
 dant must furnish what the other ought to have 
 supplied. 
 
 It is no where shown in the complaint what the 
 City Water Works did supply, nor does the com- 
 plaint furnish any data or criterion by which we 
 can determinethe quota or proportion, which that 
 supply attached to each company. The utmost 
 that could be claimed, is that that amount be- 
 come the standard or test and would remain un- 
 changed by any subsequent failure of either com- 
 pany. But this position leads to another result 
 worthy of notice. 
 
 Assuming that, prior to the introduction 
 of water by the City Water Works, the city 
 had the right to take water, " for the extinguish- 
 ment of any fire or fires, during the pendency of 
 the same free of charge, to the full capacity of the 
 said water works ;" and that after such intoduc- 
 tion by others the amount to be furnished by de- 
 fendant for fires was limited to its quota merely ; 
 then no matter how great the fire or demand for 
 water at such fire, all that the defendant might 
 furnish beyond its quota it would be entitled to 
 charge for.
 
 61 
 
 In other words, if the City Water Works intro- 
 duced as much water as the defendant, each at 
 fires should have furnished its quota only. If the 
 city (both companies existing) should take from 
 the defendant more than its quota, and let the 
 other go free, it would have to pay for that excess. 
 When, therefore, the City Water Works went out 
 of existence, the city became responsible for all 
 water used at fires, since that time, beyond the 
 defendants quota. How much more rational then 
 are the views and construction we have urged 
 upon the Court, and how much more, in result, 
 ^consonant with justice and equity to both parties. 
 
 In a word, in the beginning the defendant 
 would supply, for fires, all the water needed to its 
 entire capacity; but would be entitled to charge 
 for supplying for other municipal purposes a fair 
 price, to be fixed by the Commission. When any 
 person introduced water, the rights and obliga- 
 tions of the parties were changed only as to 
 quantity. The defendant only became bound to 
 furnish its quota for fires, free of charge, and 
 it only had a right to furnish its quota for 
 other municipal purposes, for which it could 
 charge, leaving the other company its share of the 
 city's patronage. But when, again, there remained 
 but the defendant alone, it would become re- 
 stored to its original position it would be bound 
 to furnish all necessary water for fires free of
 
 62 
 
 charge, but, as a corresponding benefit, it could 
 charge for all supplies for other municipal 
 purposes. This we deem the true construction of 
 the Ensign Act. 
 
 In conclusion, we beg leave to submit that, 
 though the construction contended for is the true 
 construction of the Ensign Act and would accom- 
 plish all the defendant seeks, yet that the defend- 
 ant was never under any of the obligations im- 
 posed by it, and that the Act itself is unconstitu- 
 tional. Should the views here advanced be 
 maintained, the defendant would still, under the 
 Act of April 22d. 1858 (Stat. 1858, page 219, Sec. 
 4) be obliged to "furnish water to the extent of 
 their means," to the City and County, "in case of 
 fire, or other great necessity, free of charge,'' but 
 would be entitled to charge for water for ordinar}^ 
 municipal uses, reasonable rates to be fixed by the 
 Board of Commissioners under that Act. In 
 common justice, this should be so, and we re- 
 spectfully urge that a re-hearing should be granted, 
 that these questions may be more fully argued and 
 that justice may prevail. 
 August, 1873. 
 
 Respectfully submitted. 
 
 S. M. WILSOX, 
 J. P. HOGE, 
 
 Of Counsel for Defls.
 
 This book is DUE on the last date stamped below 
 
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 oounty of San Fran 
 laintiff 
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 S25S7 
 1873