Jacobs v. Bd. of Supervisors of S.F.

34 P. 630, 100 Cal. 121, 1893 Cal. LEXIS 758

• Court: California Supreme Court
• Decided: October 14, 1893
• Docket: No. 15377
• Status: Published

Opinions

McFarland, J.

On March 27, 1893, the board of supervisors of the city and county of San Francisco passed an order—designated as Order No. 2622—fixing the rates of compensation to be collected by any person or corporation furnishing water for family uses, for private persons, and for municipal and public purposes, during the year commencing July 1, 1893, pursuant to section 1 of article XIV of the state constitution. The clerk of said board of supervisors presented said order to the mayor of said city and county, who refused to approve the same; and on April 7, 1893, he returned it to the board with a statement in writing of his objections thereto, showing that his views differed widely from those of the board upon the subject of proper water rates. At the first meeting of the board thereafter, viz., April 10th, the said board refused to enter the said objections of the mayor on its journals, and by resolution declared that said Order No. 2622 was not subject to the approval or veto of the mayor, or to the further consideration of the board, and that the jurisdiction and power to fix water rates were vested in the board of supervisors by said section 1 of article XIV of the constitution. Thereafter, Julius Jacobs, alleging himself to be a citizen and taxpayer, brought a proceeding in mandamus in the superior court to compel the said board of supervisors to “act upon the objections of said mayor,” and “ to proceed to fix said water rates” for the ensuing year. After a hearing, the superior court entered judgment decreeing that said Order No. 2622 was not a valid order without the approval of the mayor and without the vote of nine members of the board over the veto, and commanding the supervisors and each of them “ forthwith to act upon the objections of the mayor,” and “to forthwith proceed to fix the rates or compensation to be collected for the year commencing,” etc. From this judgment the defendants appeal.

We are satisfied that the judgment of the court below is erroneous, and that the facts found do not make a proper case for the exercise of the extraordinary remedy of mandamus.

The clause of the constitution—section 1, article XIV—under which it is sought to justify the judgment in the mandamus proceeding is as follows: “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.”

The city and county of San Francisco is a consolidated government, its charter being the “Consolidation Act” passed in 1856. Under that act the board of supervisors is the legislative department of the municipal government; although it is provided therein that ordinances upon certain enumerated subjects shall not be effective unless approved by the mayor (whose office was created by said act), or unless, after his veto, nine members of the board shall vote therefor. Under the act, however, there are many things which the board ■ may do without the concurrence of the mayor; and there are many powers which the mayor may exercise independently of the board. Under this condition of the law respondent contends that said section 1 of the constitution should be construed to mean that the mayor has the legal right to veto a water order; and that, under the facts above stated, a court can by mandamus compel the board of supervisors to refix water rates continuously, unless they either yield to the views of the mayor or are able by a three-fourths vote to override the veto.

Constitutional and statutory provisions are subject substantially to the same rules of construction; the main object being in all cases to ascertain the meaning of the lawmaker. A constitution “must be read, interpreted, and expounded in the same manner, by the same means and methodswhich are appropriate to all other legislative acts.” (Pomeroy’s Constitutional Law, p. 14.) Now it is clear that there should be no such a construction of language as would lead to absurd or impracticable results, or compel a court to decree a thing substantially impossible, or which is in plain violation of fundamental principles of law or equity firmly established and universally recognized, unless such language absolutely requires such construction. The judgment in the case at bar first commands appellants “to act upon the objections of the mayor,” which, we presume, means to vote formally on the question whether the veto shall be sustained; and then, assuming that there may not be nine votes in favor of the order, commands them forthwith to “proceed to fix the rates.” If they should vote on the veto, and a majority of the supervisors, but not nine, should vote for the order, of course, under the judgment, they would be compelled to “ proceed ” and pass another order, and if that should be vetoed with the same result, then another, and another, and so on indefinitely. So that if the board should not yield its views to those of the mayor there could be no legal fixing of water rates at all. But the section of the constitution in question provides that the water rates “ shall be fixed annually,” to commence on July 1st, and that “any board or body” failing to do so shall be subject to process to compel action, and that any person collecting water rates otherwise than as so fixed annually shall suffer certain penalties and forfeitures. If such a construction does not involve a palpable absurdity, or an attempt to accomplish an absolute impossibility, it certainly does lead naturally and probably to what is substantially impracticable, and to a failure to consummate the purpose of the constitutional provision under review. Fixing water rates is an entirely different thing from passing or refusing to pass a proposed order or ordinance which merely involves ordinary considerations of public policy, and is not an absolute necessity. The constitution requires that the rates shall be fixed annually in February, and that if they be not fixed there shall be no sale of water to the inhabitants of the city after the ensuing 1st of July, by any person, company, or corporation. To do this in a large city like San Francisco, as appears from the Order No. 2622, and the lengthy objections of the mayor thereto contained in the transcript, is a laborious and complicated task, and one about which there is always likely to be great differences of opinion; and the notion that the framers of the constitution meant that this should be accomplished in a short space of time by two independent bodies agreeing upon every detail of the work, and that a court of justice should compel them to thus agree, or rather should compel one to adopt the views of the other, is not to be entertained for a moment unless it be the necessary and absolute result of the language employed.

Moreover, the construction contended for by respondent violates the well-settled, long recognized and fundamental principles which have always limited and governed the jurisdiction of courts in the proceeding of mandamus; and a design to undermine and unsettle those principles is not to be implied by any construction not forced by imperative language. It is, beyond doubt, the universal rule that mandamus will not lie to control the judgment of an officer or tribunal to whom is given discretionary power—the power to examine, consider and determine. In such a case the writ can be used only to compel the exercise of discretion; but when the discretion has been exercised the writ cannot be used to compel a party to abandon his own judgment, and to make it conform to the judgment either of the court or of some other person. Every case where a party has been commanded by mandamus to do an act has been a case where the act was definite, certain and fixed, and where its character and scope, and the result to flow from it, were as well known before the doing of the act as after-wards, as, for instance, when a municipal body has been commanded to provide for the payment of a judgment for a certain and definite amount. But no court in the course of the history of our jurisprudence has ever undertaken to control action by mandamus when the thing to be done was judicial in its nature, when the person or tribunal was “ to hear and determine,” and to come to a conclusion by the exercise of judgment and discretion, and when the result was not fixed and known beforehand. This principle was declared by this court as early as the fourth volume of reports, as follows: “ Whenever a discretionary power is vested in officers, and they have exercised that discretion, the courts will not interfere, because they cannot control and ought not to coerce that discretion.” .... McDougall v. Bell, 4 Cal. 177; and it has been applied here in many subsequent cases. In High’s Extraordinary Remedies, sec. 24, the author, after stating the rule substantially as above, says: “It applies with especial force to cases where the aid of mandamus is sought against inferior courts or judges, public officers, municipal authorities and corporate officers generally, and in all these cases it is the determining principle in guiding the courts to a correct decision. And whenever such officers or bodies are vested with discretionary power as to the performance of any duty required at their hands, or where in reaching a given result of official action they are necessarily obliged to use some degree of judgment and discretion, while mandamus will lie to set them in motion and to compel action upon the matters in controversy, it will in no manner interfere with the exercise of such discretion, nor control or dictate the judgment or decision which shall be reached.” And that the supervisors act judicially when fixing water rates, that in performing that duty they should hear the parties interested, fairly weigh the evidence presented, and decide property rights according to their honest convictions and best judgment, is not only clear from the very nature of the thing to be done, but was expressly declared by the Supreme Court of the United States in Spring Valley Water Works v. Schottler, 110 U. S. 354. In that case the court, speaking of the nature of the power conferred upon the supervisors of San Francisco to fix water rates, says: “ Like every other tribunal established by the legislature for such a purpose, their duties are judicial in their nature, and they are bound in morals and in law to exercise an honest judgment as to all matters submitted to their official determination.” And the same declaration was made by this court in Spring Valley Water Works v. San Francisco, 82 Cal. 286, 16 Am. St. Rep. 116; although it was held in that case that according to the averments of the complaint the supervisors had not exercised their judgment.

When we look at the language of said section 1 of article XIV, we see not only that it fails to require the construction put upon it by respondent, but that it clearly avoids the consequences above stated. So far we have assumed that the constitutional provision in question is really susceptible of two different constructions—one as presented by respondent, and the other as contended for by appellants; but it is readily perceived that, the former is strained, difficult, and forced, while the latter is apparent and obvious, and rests naturally and easily upon the surface of the language employed. The first and leading words in that part of the section which designates the depository of the power are “the hoard of supervisors”; the balance of that part of the section merely makes exceptions of those municipalities of which boards of supervisors form no part. At the time the section was adopted there was no city and comity or city or town other than the city and county of San Francisco, of which a board of supervisors was-the legislative department; and it may well be presumed that the constitutional convention, at that time, had particularly in view the city and county of San Francisco when they expressly granted to the board of supervisors the power to establish water rates. But as there were some, and might in the future be other, cities and towns of whose government boards of supervisors did and might not constitute a part, and as other consolidated city and county governments could be established in the future whose legislative department might or might not be boards of supervisors, it was necessary, also, to provide for the fixing of water rates in those kinds of municipalities. And so the section, after declaring that water rates “shall be fixed annually by the board of supervisors” (that is, of course, when such board was or should be a part of the government), proceeded to provide, also, that in municipalities having no boards of supervisors, the “ other governing body” thereof should fix the rates. It is difficult to conceive how any other construction can be put upon the section without entirely eliminating therefrom the prominent and conspicuous words “board of supervisors.”

We do not deem it necessary to discuss the question whether, if we were to look to the Consolidation Act alone, the Order No. 2622 would require the approval of the mayor, although it is difficult to see that it would be embraced within any of the enumerated cases in which he is given the veto power by that act; and the veto power is not to be favored by any strained construction; it is to be recognized only where clearly granted. But the power in question here comes, not from the Consolidation Act, but from the constitution of the state. It could have been granted in that instrument to the mayor, or to the supervisors, or to any body of municipal officers, or to the judges of the courts. It was, however, expressly granted to the board of supervisors; and in the grant no mention is made of the mayor. Moreover, the “board or body” against whom a mandate will lie is the board or body to whom the power is given; and if the mayor is part of that “board or body,” he is subject to mandamus, which would be absurd.

Of course, when a grant of power is made to several persons, or to a board consisting of several persons, the power is to be exercised by a majority of those persons, unless the power is otherwise limited by the grant itself. This is not only a necessary rule, and established by the general authorities, but it is expressly declared in section 12 of the Civil Code, which provides that “ Words giving a joint authority to three or more public officers, or other persons, are construed as giving such authority to a majority of them, unless it is otherwise expressed in the act giving the authority.”

Our conclusion is that the power to fix water rates in the city and county of San Francisco is granted by the constitution of the state solely to the board of supervisors of said city and county; that the matter of fixing such rates requires the exercise of discretion and judgment; that the board, having exercised its discretion by passing said Order No. 2622, cannot be compelled by mandamus to change its judgment or to take further action thereon; that said order is valid, notwithstanding the attempted veto of the mayor, and legally fixes the rates to be charged for water of said city and county during the year commencing July 1,1893; and that the judgment of the superior court, commanding said appellants to take further action in the premises is erroneous.

The judgment appealed from is reversed, with directions to the superior court to dismiss the proceedings.

Garoutte, J., concurred.