Jacobs

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 *125 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.…

Whether the power to fix water rates in the city and county of San Francisco is vested in the board of supervisors alone, or whether the mayor is a constituent part of the governing body of that *133 city and county, and thereby vested with the function of assisting in fixing those rates, is to be determined solely by the construction of the language in which the authority is conferred. The same section of the constitution declares that if any board or body fails to pass the necessary ordinances or resolutions fixing these rates, as therein directed, they shall be subject to peremptory process to compel their action. This is a mandatory provision, and if the occasion shall ever be presented the issuance of such process ought not to be withheld upon the theory that it cannot be enforced. We ought not to assume that any political body will refuse to comply with the law after it has been declared by the highest tribunal in the state, or that there will he any occasion for a court to invoke any force other than the moral strength which its own declarations of the law ought to impress upon every citizen.

Article XIV, section 1, of the constitution, declares that the rates for the use…

I concur in the judgment and in the construction placed upon section 1, article XIV, of the constitution, by Mr. Justice McFarland. I think, however, that the judgment is not objectionable, on the ground that it seeks to interfere with the exercise of the discretion of the board, or any member *139 thereof, or that, conceding the theory of the petitioner to be correct, the writ must run against the mayor as well as the board.

The record shows that after the mayor refused to approve the ordinance and return the same with his objections thereto, the board of supervisors refused to entertain the objection, and refused to take any action whatever with respect thereto. If the mayor had a right to act in the premises, it was the duty of the board of supervisors to consider his objections, and it is in no way an interference with their discretion to say that they must act in some manner upon them. When they have acted, of course that is the end of the matter; their discretion cannot be controlled by the court.

If it be conceded that the mayor is a part of the power which must fix the water rates, he is not necessarily a party to a proceeding of this kind. He acts independently and upon…

I concur in the judgment, upon the ground that the true construction of the constitution is that ordinances fixing water rates are to be passed as legislative acts of the particular municipality are generally passed, and not as they are passed in exceptional cases provided by act of the legislature.

To hold otherwise would be to admit the power of the legislature and boards of freeholders to adopt charters under which, with respect to all other subjects of legislation, a reasonable discretion and freedom of action *140 would be left to the legislative body; while with respect to water ordinances the legislative body would be so hampered and restricted that the fixing of rates would be practically impossible, thus accomplishing the confiscation of the property of water companies.

The board of supervisors of San Francisco is the legislative body as to all subjects of legislation with a few special exceptions, and its acts do not generally require the approval of the mayor.

Water ordinances must be held to fall under the general rule, and not within the exception.