Spring Valley Water Works v. City and County of San Francisco

1. The writ of prohibition, under our statutes, is the counterpart of mandamus (Code of Civil Procedure, secs. 1102, 1103) ; it may be issued to an inferior tribunal, corporation, board, or person, and it arrests such proceedings as are without or in excess of the jurisdiction of such tribunal, corporation, board, or person. Mandamus is not confined to judicial acts, and prohibition, its counterpart, is not confined to the restraint of judicial acts only. In Fox v. Board of Supervisors, 49 Cal. 563 , the Supreme Court issued the writ of prohibition to the Board of Supervisors of San Mateo County, to prohibit them from calling an election, which is not a judicial act.

So also as to certiorari. (Robinson v. Board of Supervisors of Sacramento, 16 Cal. 208 ; People v. Supervisors of El Dorado *114 County, 8 Cal. 58 ; Murray v. Supervisors of Mariposa County, 23 Cal. 494 ; Miller v. Supervisors of Sacramento, 25 Cal. 93 ; Keys v. Marin County, 42 Cal. 253 ; City v. Albright, 20 N. J. L. 645; State v. Jersey City, 29 N. J. L. 170; State v. City of Patterson, 34 N. J. L. 163.)

2. It has been adjudged by this Court that the petitioner is under no obligation to furnish water to the city…

I concur in the judgment, and also in that portion of the opinion of Mr. Justice McKinstry which is devoted to the discussion of the writ of prohibition, except in so far as it holds the writ to be a prerogative writ. In my opinion, it is a statutory writ. Its scope, purpose, and the class of cases in which *126 it may issue, are defined and prescribed b/ tho Code. When a party presents a proper case he is entitled to the writ, and the Courts have no right to deny him that remedy, in the exercise of some undefinable judicial discretion, when no valid legal objection is presented.

I am not prepared, in this case, to express an opinion upon the construction to be given to the words “ and shall furnish water to such city and county, or city, or town, in case of fire, or other great necessity, free of charge.”

The determination that the writ would not lie is a final disposition of the action, and the announcement of conclusions upon other questions discussed by counsel would amount to mere dicta. Nor am I satisfied that, as between the plaintiff and the city, the construction of the words above cited was not conclusively settled by the judgment in San Francisco v. Spring Valley, 48…

I concur. In the case of San Francisco v. Spring Valley Water Works, 48 Cal. 493 , it was decided that the rights and powers, the duties and obligations, of the water company must be determined under the Act of April 22nd, 1858, under which it was incorporated, or under such general laws as might subsequently be enacted amendatory thereof; and in this connection it may be observed that the Codes have not modified that act in any particular material to the present inquiry. It may, therefore, be assumed, for the purposes of this decision, that the Act of 1858 has not been materially changed by subsequent legislation.

It is a well settled rule that private corporations can exercise no powers but those expressly granted, and such as are necessarily incidental thereto. Keeping this rule in mind, it becomes material to inquire in what cases the water company is entitled to charge for water, and in what cases it must furnish it free of charge. This question must be determined by the fourth section of the Act of April 22nd, 1858, which defines the rights and duties of the company in this respect. It can make no charge for water unless authorized by this section, and is not required to…