Fitch

The constitution, article XIV, section 1, after providing that the rates to be collected by any person, company, or corporation for the use of water supplied to any municipality or its inhabitants shall be fixed annually by the governing body of such municipality, provides: “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 or county, or city or town, in this state, otherwise than as so established, shall forfeit-the franchises and waterworks of such person, company, or corporation to the city and county, or city or town, where the same are collected for the public use.”

Two courses of action are thus authorized to be pursued against the board of supervisors, or other governing body of the municipality, in case…

I have not concerned myself in the consideration of the question as to whether or not Fitch is a proper party to inaugurate this proceeding. My conclusion rests upon the broad proposition that the act is unsound legislation and should be so declared.

When this case was here some time ago upon a preliminary proceeding, I had occasion to investigate the law bearing upon it, and gave my views in a few words as to the proper construction of the statute under which this prosecution is based. (Morton v. Broderick, 118 Cal. 487 .) At that time I thought the charge was essentially criminal, and, being so, no law could stand which punished innocent officeholders because some other officeholder may have been guilty of malfeasance in office. Upon *291 such construction the law impressed me as violative of fundamental principles and necessarily unconstitutional. The time intervening since that decision was rendered has only served to more firmly convince me of the soundness of the views I then expressed.

As a civil proceeding, the judgment rendered can only stand upon the theory that the act of the legislature upon which the proceeding was based is in the nature of an act fixing the tenure…