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v. Board of Education, 55 Cal. 489; Miller v. Kister, 68 Cal. 142; San Francisco v. S. V. W. W., 48 Cal. 493. The assessment of railroad property in two or more counties is left by the constitution to the state board of equalization, but for the apportionment thereof to the several counties, it was necessary for the legislature to act. People v. C. P. R. R., 83 Cal. 393.
WATER AND WATER RIGHTS.
SECTION 1. The use of all water now appropriated, or that may hereafter be appropriated, for sale, rental, or distribution, is hereby declared to be a public use, and subject to the regulation and control of the state in the manner to be prescribed by law; provided, that the rates or compensation to be collected by any person, company, or corporation in this state for the use of water supplied to any city and county, or city or town, or the inhabitants thereof, shall be fixed, annually, by the board of supervisors, or city and county, or city or town council, or other governing body of such city and county, or city or town, by ordinance or otherwise, in the manner that other ordinances or legislative acts or resolutions are passed by such body and shall continue in force for one year and no longer Such ordinances or resolutions shall be passed in the month of February of each year, and take effect on the first day of July thereafter. Any board or body failing to pass the necessary ordinances or resolutions fixing water rates, where necessary, within such time, shall be subject to peremptory process to compel action at the suit of any party interested, and shall be liable to such further processes and penalties as the legislature may prescribe. Any person, company, or corporation collecting water rates in any city and county, or city or town in this state, otherwise than as so established, shall forfeit the franchises and water works of such person, company, or corporation to the city and county, or city or town where the same are collected, for the public use.
Irrigation canal in street, if a nuisance, may be so controlled as to abate nuisance, but total destruction should not be decreed, according to rule applicable to public corporation. City of Fresno v. F. C. & I. Co., 98 Cal. 179.
The act of the city council in fixing water rates is a legislative act, and when performed, is to receive all the presumptions and sanctions which belong to acts of legislative bodies generally. It must be assumed that they have adopted a measure of compensation which will be just toward the rate payer as well as the company, and that the mode of collection is that which, in the judgment of the legislative body, will best subserve the interest and rights of both parties. Sheward v. C. W. Co., 90 Cal. 640.
The constitution contemplates reasonable and just rates. The power to regulate is not authority to confiscate, and if used arbitrarily without a fair investigation, and rates are fixed which entail a loss to the party supplying water, the ordinance fixing such rates will be set aside by the courts as unreasonable and void. S. V. Water Works v. San Francisco, 82 Cal. 286.
The supervisors have no right under the constitution nor under act of March 12, 1885, (Stats. p. 95) to fix rates for water of a corporation organized for the purpose of supplying water to its own stockholders to be used upon their own lands. McFadden v. Los Angeles County, 74 Cal. 571.
The rights of a riparian owner may be taken under power of eminent domain, (compensation being made) for the purpose of supplying farming neighborhood with water. Lux v. Haggin, 69 Cal. 255.
The use of water appropriated for sale, rental, or distribution is a public use; and the right to collect compensation for use of water to the inhabitants of any city is a franchise which cannot be exercised except by authority of and in the manner prescribed by law. Water appropriated for distribution and sale is ipso facto devoted to a public use. Each member of the community, by paying the rate fixed for supplying it has a right to use a reasonable quantity of it, in a reasonable manner. McCreary v. Beaudry, 67 Cal. 120. Is a public use. People v. Stephens, 62 Cal. 209.
SECTION 2. The right to collect rates or compensation for the use of water supplied to any county, city and county, or town, or the inhabitants thereof, is a franchise, and cannot be exercised except by authority of and in the manner prescribed by law.
The right to collect rates is a franchise. The section has no application to water furnished by the municipality itself, but it refers to rates or compensation to be collected for water authorized by section 19, article XI, to be introduced into cities by individuals or companies incorporated for that purpose. Sections 1 and 2, article XIV, and section 19, article XI, are to be read and taken together. People v. Stephens, 62 Cal. 209.
The consolidated city and county government of San Francisco exists under the consolidation act of 1856. Under said act-its charter-it is provided that ordinances upon certain enumerated subjects shall not be effective unless approved by the raayor, or, unless after his veto, nine members of the board shall vote therefor. Held, the constitutional requirement for fixing water rates in February of each year, is not of that class of acts which requires approval of the mayor. The fixing of rates may be accomplished by a majority vote of the board, and to hold that approval of the mayor was requisite would require nine members of the board to overcome any objection raised by the mayor, which might prevent a compliance with the requirements of the constitution. Jacobs v. Board of Supervisors, 100 Cal. 121.
The act of March 7, 1887, (Stats. p. 29) known as the Wright act, is constitutional. The corporations for which it provides are quasi public corporations, and the mode prescribed for their exercise of the power of taxation need not follow exactly the mode provided in the constitution for the assessment and collection of taxes for general state purposes. In re Madera Irr. Dist., 92 Cal. 324.
Perhaps to a greater extent than any of the other states, California, speaking through the acts of her legislature, her court of last resort, and her constitution, seems to have considered the irrigation of lands
and the supplying of mines with water as of great public concern. Irrigation District v. Williams, 76 Cal. 369.
The Spring Valley Water Company was organized under the act of 1858, (Stats. p. 218) and the 4th section of that act provided that the water rates should be fixed by a board of commissioners to be selected as therein prescribed. Held, said section of the act was superseded by the adoption of the constitution of 1879, and that rates must thereafter be fixed as provided in article XIV of said instrument, and the statute enacted to carry it into effect. (Stats. 1881, p. 54.) S. V. W. W. v. Supervisors, 61 Cal. 3.
Since the new constitution, the supervisors have had the power to fix the rate or compensation to be allowed for water supplied to the city for fires, street sprinkling, parks, etc., as well as for water supplied to private persons; and an ordinance leaving the rate to be charged to private persons indefinite and dependent upon amount paid by the public, is not a compliance with the constitution, because it does not fix the rate. According to the decision in S. V. W. W. v. Supervisors, 52 Cal. 122, the company is not required to furnish water to the city for public purposes free except for fires. S. F. P. W. Factory . Brickwedel, 60 Cal. 166. S. V. W. W. Co. v. San Francisco, 61 Cal. 38.
Whether the use to which it is proposed to devote water is a public or private one, is a material issue in proceedings to condemn a right of way for a ditch, and must be specifically found upon. Cummings v. Peters, 56 Cal. 593. 1
This section is also referred to in most of the cases collected under section 1 of this article.
HARBOR FRONTAGES, ETC.
SECTION 1. The right of eminent domain is hereby declared to exist in the state to all frontages on the navigable waters of this state.
SECTION 2. No individual, partnership, or corporation,
claiming or possessing the frontage or tidal lands of a harbor, bay, inlet, estuary, or other navigable water in this state, shall be permitted to exclude the right of way to such water whenever it is required for any public purpose, nor to destroy or obstruct the free navigation of such water; and the legislature shall enact such laws as will give the most liberal construction to this provision, so that access to the navigable waters of this state shall be always attainable for the people thereof.
SECTION 3. All tide lands within two miles of any incorporated city or town in this state, and fronting on the waters of any harbor, estuary, bay or inlet used for the purposes of navigation, shall be withheld from grant or sale to private persons, partnerships or corporations.
SECTION 1. The legislature shali not, in any manner, create any debt or debts, liability or liabilities, which shall, singly or in the aggregate with any previous debts or liabilities, exceed the sum of three hundred thousand dollars, except in case of war to repel invasion or to suppress insurrection, unless the same shall be authorized by law for some single object or work to be distinctly specified therein, which law shall provide ways and means exclusive of loans, for the payment of the interest of such debt or liability as it falls due, and also to pay and discharge the principal of such debt or liability within twenty years of the time of the contracting thereof, and shall be irrepealable until the principal and interest thereon shall be paid and discharged; but no such law shall take effect until, at a general election, it shall have been submitted to the people and shall have received a majority of all the votes cast for and against it at such election; and all moneys raised by authority of such law shall be applied only to the specific object therein stated, or to the payment of the debt thereby created, and such law shall be published in at least one newspaper in each county, or city and county, if one be published therein, throughout the state, for three months next preceding the election at which it is submitted to the people. The legislature may at any time after the approval of such law by the people, if no debt shall have been contracted in pursuance thereof, repeal the same.
Const. 1849, Art. VIII, Sec. 1.