UNIVERSITY OF CALIFORNIA 
 AT LOS ANGELES 
 
 ROBERT ERNEST COWAN
 
 II 
 
 STATE OF CALIFORNIA. 
 
 \o. ,7.T,VO. 
 
 MANDAMUS. 
 
 THE SPRING VALLEY WATER WO^KS, 15th Di ^ Courfcj 
 
 Respondent, , San Francisco. 
 
 MONROE ASHBURY, AUDITOR, etc., I x,, in i3^ court, 
 
 AppeUant. 
 
 1 
 
 JVo. 5588. 
 
 THE SPRING VALLEY WATER WORKS, 
 
 Respondent, PROHIBITION. 
 
 The City and County of San Francisco, et al., 
 
 Appellants. 
 
 THE SPRING VALLEY WATER WORKS, 
 
 Respondent, 
 
 ANDREW J. BRYANT, MAYOR, etc,, et al., 
 
 Appellants. 
 
 REVIEW. 
 
 FROM 
 
 loth District Court, 
 San Francisco. 
 
 No. in Dist. Court, 
 20,578. 
 
 ARGUMENT OF J. PJOGE, FOR PLAINTIFF.
 
 IN THE SUPREME COURT 
 
 OF THE 
 
 STATE OF CALIFORNIA. 
 
 SPRING VALLEY WATER COMPANY 
 
 vs. 
 CITY AND COUNTY OF SAN FRANCISCO. 
 
 ARGUMENT OF J. P. HOGE. 
 
 FRIDAY AFTERNOON, May 11, 1877. 
 
 Mr. Hoge said : 
 
 MAY IT PLEASE YOUR HONORS: 
 
 In what I have to say in these cases, I will 
 endeavor to be as brief as possible, and to wander 
 as little as possible from the points that are really 
 in issue. As was said by one of the learned 
 counsel, in a decision read during the course of 
 the argument here: " The argument has taken a 
 very wide range, but the points involved are 
 exceedingly limited." To which points the Court 
 proposed to confine itself.
 
 Certainly, this argument has traveled a long 
 way beyond any question really involved in these 
 controversies. 
 
 I do not propose to follow the learned counsel 
 that has discussed these cases for three or four 
 days past in all these wanderings of his. Cer- 
 tainly not the least entertaining portion was the 
 last of his argument was his peroration. I liked 
 it better than I did certain other portions of his 
 argument, because it was in better temper. It 
 was amusing and entertaining, and lacked a good 
 deal of the malice which he put into many other 
 sections of his remarks. 
 
 He took exception to what 1 supposed was a 
 very complimentary allusion on the part of one of 
 the counsel my friend and colleague, Mr. New- 
 lands. Mr. Newlands undertook to compare the 
 counsel on the other side to a very celebrated 
 philosopher, whose history is very well known, 
 to that philosopher, Diogeues. He referred to his 
 life, and I believe to his historic tub, with his 
 lantern in his hand, in search of an honest man. 
 
 I did not myself see anything that was offen- 
 sively derogatory to my friend Swift, in likening 
 him to so great a philosopher as Diogenes. But 
 my friend Swift took exception to this compari- 
 son, and he came back on my learned friend, Mr. 
 Newlands, in what I think was an unkindly spirit; 
 in his retort saying that my colleague was too 
 smart to live; that whom the gods love die young; 
 that he might not live to come into the inheritance 
 which it was intimated his father-in-law might be 
 disposed to transmit to him; that he might not
 
 live to enjoy the princely legacy for which he had 
 reasonable or ambitious expectations. 
 
 Now, that was very unkind in my friend Mr. 
 Swift. I don't think that the remarks made by 
 Mr. Newlands warranted or justified so severe or 
 personal attack. Therefore I say I liked much 
 better that portion of his argument, or address, 
 which was evidently uttered in a more kindly 
 spirit. 
 
 My friend Mr. Swift thinks that he will himself 
 die some of these days from insanity! But, cer- 
 tainly, he will not die from insanity superinduced 
 by those things which generally produce it. If 
 he does die from insanity, his disease will not 
 come from the use of whiskey ; it will come, if at 
 all, from water on the brain! [Merriment.] And 
 he is not peculiar in that either. There seems to 
 be the disease of water on the brain prevailing 
 among all the counsel for the city in this case. I 
 fear they are all in danger of dying late, if not 
 early, from water on the brain. 
 
 I do not propose, if your Honors please, to 
 waste your time in this kind of a discussion. 
 
 This is a Court of law ; a Court of errors ; a 
 Court of last resort ; where the rights of par- 
 ties and the rights of the public are to be 
 adjudicated upon grave consideration, upon 
 principles of law, and reason and of right. 
 And, therefore, all this kind of discussion is very 
 much out of place ; and this resorting to abusive 
 epithets which have been very freely indulged 
 in here are, in my judgment, speaking very much 
 out of place. It is in bad taste. I will go fur- 
 ther and say, it is lacking in the respect and pro-
 
 priety which should characterize and govern the 
 proceedings of a body like this. 
 
 I should be very slow, in any event, to follow 
 the learned gentlemen who have preceded me on 
 the other side, and go into any such kind of a 
 discussion. Though I might do it very success- 
 fully, I will not do it. 
 
 This is nothing but a case which presents for 
 consideration the rights of a private corporation, 
 and the rights of a public municipal body. They 
 are, in my judgment, pure questions of law, and 
 of law alone. In my judgment, they are very 
 simple and very few. 
 
 But here is a brief of one hundred pages, con- 
 taining well, I don't know exactly how many 
 containing, I suppose, two hundred and fifty 
 authorities, which has been handed to us in the 
 course of the argument while the argument was 
 progressing. Of course, we could not be sup- 
 posed to know much about these authorities, or 
 how they are pertinent to the questions involved ; 
 because we have had no opportunity to examine 
 them. I only know about them from hearing 
 counsel read some of them in the course of his 
 argument. 
 
 In my judgment there is not a single authority 
 cited here certainly not one from which he has 
 read that really has any bearing, any pertinency 
 or governing effect upon the real questions in- 
 volved in the controversy, which are presented in 
 the records not one of them. I certainly shall 
 not follow him in his discussion or his allusions 
 to the question of property in water.
 
 I shall not follow him in a review of the com- 
 mon law doctrines in relation to the water of 
 flowing streams, which involves questions entirely 
 outside of this record. 
 
 To say that a corporation which has invested 
 millions in securing water and water privileges, 
 in bringing it into a city in its pipes, in building 
 aqueducts, in building reservoirs acting, in this 
 connection and in this operation, under Acts of 
 the Legislature for the disposition of water and 
 the collecting of water to say that such a cor- 
 poration has not in such a manner acquired prop- 
 erty which is invested with all the insignia and 
 realities of property, is to lay down an exceed- 
 ingly novel proposition a proposition so un- 
 founded in reason and principle and authority, 
 that I do not propose to waste one moment in 
 discussing it at all. 
 
 Now, may it please your Honors, here are three 
 of these cases here. 
 
 One is the case^of the Spring Valley Water 
 Company against the City and County of San 
 Francisco and its Board of Supervisors and its 
 Mayor and other officers. That is a petition for 
 prohibition an original case in this Court. 
 
 The second is the case of the appeal from the 
 decision of the Fifteenth District Court, in the 
 case where we make complaint against the Au- 
 ditor of the city, Mr. Ashbury. 
 
 And the third is a case against the Mayor and 
 others, on appeal from the Twelfth District Court, 
 on a writ of certwrari, or " writ of review," as the 
 Act styles it.
 
 Now, these cases have been set down by the 
 Court to be argued together. 
 
 The first being an original proceeding by the 
 Spring Valley Water Company, in this Court, 
 against the city and county and the Mayor and 
 Board of Supervisors, to prohibit them' from act- 
 ing under certain resolutions, and from passing 
 certain ordinances, by which the city proposes to 
 take the property of the Spring Valley Water 
 Company, and apply it to the municipal purposes 
 of the city and county, without compensation. 
 
 The second proceeding is an appeal from the 
 judgment of the Fifteenth District Court, award- 
 ing a mandamus to the Auditor to compel him to 
 enter in the proper books the allowance of the 
 claim of the Water Company for $9-2,000, as al- 
 lowed and ordered paid by the Board of Super- 
 visors, on final appeal from the decision of the 
 Auditor, in conformity with the provisions of the 
 Consolidation Act. 
 
 The third is an appeal from. the decision of the 
 Twelfth District Court, rendered on the writ of 
 review, in which that Court decided adversely to 
 the claim of the city. 
 
 Now, the object, of all these proceedings, if your 
 Honors please, seems to be to procure an early 
 decision by this Court the Court of last resort 
 of all the matters of dispute between the city and 
 county, and the corporation; a decision which 
 will settle all the questions involved between 
 these two contending parties; and which will 
 authoritatively determine, beyond further contro- 
 versy, the whole matter, and settle the rights of 
 the public and the rights of the corporation ; and
 
 which will put an end to any further difficulty or 
 discussion in relation to those rights; with which 
 decision, no matter how it may go, either party 
 will be satisfied ; the rights of the public will 
 be protected, and the rights of the private incor- 
 porators will be equally protected. With this 
 decision, there is no further disposition, I appre- 
 hend, on either side, to make a future quarrel. 
 
 Now then, under these circumstances, I have 
 not understood that there was any question made 
 as to the form or applicability of the remedy 
 sought by the original proceeding in this Court. 
 
 The question raised in that proceeding in 
 fact, in both of the others the appeal from the 
 Fifteenth and from the Twelfth, involves one or 
 two questions which are identical in all of them. 
 
 That case from the Fifteenth District Court 
 involves some considerations or principles which 
 did not exist in the other cases, and it may be 
 considered separately. I will endeavor to treat 
 them separately, as far as I can, with some refer- 
 ence to the manner in which the case has already 
 been discussed. As far as I can, I propose to 
 separate these, and to discuss those questions and 
 principles which are common with the cases. 
 
 And it matters not, if your Honors please, 
 whether the special remedy sought in the case of 
 prohibition, and in the case of certiorari, is main- 
 tained, so that the Court determines all the 
 matters involved ; determines the principles here 
 in question; and thus passes authoritatively, and 
 distinctly, and finally, upon the rights of the re- 
 spective parties. The confessed and asserted 
 object of both is to have a full and complete de-
 
 8 
 
 cision of these cases by the Court at this time. 
 And it is particularly desirable that the Court 
 should finally pass upon the rights of the parties 
 as they may be involved in the matters which 
 are set up in common in all these cases, so that 
 no future litigation may arise, in which the 
 remedy may be sought. 
 
 Now, then, as I said, I propose to discuss the 
 matters which are common to all these cases, in 
 the first place. I do not propose to go over the 
 entire field of discussion which has been indulged 
 in here, in the prohibition cases, nor in any of 
 the other cases, further than is necessary with a 
 view to the argument which I have proposed to 
 make. 
 
 The petition sets up all the facts. The peti- 
 tion sets up the former decision of this Court. 
 The petition sets up the actions and doings of the 
 city, the resolutions that were passed, the ordi- 
 nances that were passed, proposed, and threat- 
 ened; and asks for a writ of prohibition. The 
 answer avers the right of the city to tap 
 the pipes, under the law of the 22d of April, 
 1858, and to take water in cases of fire or other 
 great necessity and that including all the water 
 used, or that has ever been used by the city for 
 any purpose whatever and then it sets up the 
 various uses to which they had put the water as 
 being purposes of " great necessity " within the 
 meaning of that clause in the Act. 
 
 They travel into a long account of an old suit, 
 and of the question there involved in relation to 
 the old San Francisco Water Works Company; 
 referring to many Bother things which I do not
 
 9 
 
 propose to take time in considering now. They 
 set up and aver in their pleadings, that they now 
 take, and have always taken the water for the 
 same purposes precisely for which they were alleged 
 to take it, in the case which has been already 
 determined by the Supreme Court; and that they 
 did not claim now any other right than they 
 claimed then. 
 
 They set up some additional defenses, which 
 will be alluded to at the proper places. 
 
 Now then it will be seen, if your Honors please, 
 that these pleadings, stripped of the verbiage and 
 useless averments and prolix statements with 
 which they are filled it will be seen by your 
 Honors, if you take the trouble to read them 
 present a single question: that under the previous 
 corporation act of 1858, this question stands first: 
 that the City and County of San Francisco is 
 entitled to take the water of the Spring Valley 
 Water Company and appropriate it free of charge, 
 without compensation, to all the municipal uses of 
 the city, without limit. 
 
 And it appears, second, by the pleadings, that 
 the city is entitled to do the same thing, because 
 the Spring Valley Water Company is the suc- 
 cessor of the San Francisco Water Works, and 
 bound to give water free of charge for all pur- 
 poses other than the sprinkling of the streets. 
 Under the provisions of Orders 46 and 172, 
 approved by the Legislature, it is alleged that the 
 old company was bound by what is said to be a 
 contract, to that effect; and the Spring Valley 
 Water Company, having purchased the property 
 and interests of that company, its franchises, etc.,
 
 10 
 
 is said to succeed to these obligations. The Spring 
 Valley Water Company having purchased the 
 interests of the San Francisco Water Works, it is 
 claimed that the former is bound, under the 
 terms of its acquired franchise, to. make the sup- 
 ply unlimited and without charge. 
 
 Now, I understand, if your Honors please, from 
 an examination of all these pleadings, that these, 
 and these alone, are the questions that are raised, 
 and which present themselves to the considera- 
 tion of 1he Court at this time. 
 
 These being the issues, then, we are met at the 
 very threshold with the inquiry: Which of them; 
 and what are they? are now open to discus- 
 sion upon the face of these records? Have they 
 not, as we contend, been already determined by 
 the previous adjudication of this Court, in the 
 case of the city arid county against the Spring 
 Valley Water Company, as finally adjudged and 
 reported in the 48th Cal. ; which is set up and 
 relied upon in the pleadings and proceedings 
 here. 
 
 The proposition being on the one side on our 
 side that either question which is now attempted 
 to be raised, was included in, raised by, and de- 
 cided by the Supreme Court, in the case referred 
 to in the case of the City and County of San 
 Francisco vs. Spring Valley Water Company; and 
 that not one of them is open now to discussion. 
 That is the proposition on our side. 
 
 On the other side: Judging from the argument, 
 I am unable to see what question was decided by 
 the Supreme Court in the case referred to. It is 
 impossible for me to see that any and all questions
 
 11 
 
 are not still open to argument and adjudication in 
 the present proceeding if the proposition on the 
 other side, as I understand it, is correct. 
 
 It becomes necessary, therefore, if your Honors 
 please, to make an examination into these mat- 
 ters; to inquire as to the various opinions deliv- 
 ered by this Court in the different decisions in 
 that case; what were the pleadings, what were 
 the questions involved ; what were the issues 
 before the Court ? And that will show the mat- 
 ter one way or the other either that we are right 
 or that our adversaries are right. We say that 
 nothing new is now present in these pleadings ; 
 not a single fact which was not present, and which 
 did not exist, and which was not well known at 
 the time of the commencement of that case. 
 
 Now, then, if you Honors please, I do this with- 
 out any doubt in my own mind as to the fact. I 
 make this inquiry, not to weary your patience, but 
 for the purpose of showing what was the real mat- 
 ter in issue and the real points decided, inasmuch 
 as there seems to be some doubt in the mind of the 
 Court as to what were the issues in those pro- 
 ceedings what was decided, and how far the 
 judgment covers the questions that are involved 
 or attempted to be raised and re-argued here. 
 Because, 1 will say in passing, with the excep- 
 tion of some little amplification, some little in- 
 dulgence in the operations of fancy and imagina- 
 tion, in some instances, and some few additional 
 authorities, there is no difference in the character 
 of the case, as presented, and the main issues 
 which exist here. There is not one single propo- 
 sition made in this long argument here, since last
 
 12 
 
 Monday morning not a single proposition that 
 was not made and discussed, over and over again, 
 in the case to which I refer. 
 
 As will appear presently, the case went through 
 a long discussion debated over and over again, 
 orally in the Court, by briefs, by long arguments, 
 written and printed ; discussed by a great variety 
 of counsel, both on the part of the city and on 
 the part of the corporation. And I say that, 
 in that discussion, every one of these ques- 
 tions was debated to the largest extent every 
 one that can be raised in these cases with the 
 exception of the appeal from the Fifteenth Dis- 
 trict Court in the Auditor's case with the excep- 
 tion of a few questions involved in that case and 
 not involved in the rest of them. I repeat, that, 
 with that exception, not one of these questions 
 here presents any new issue. There is no ques- 
 tion here which was not again and again pre- 
 sented, by printed argument and by oral discus- 
 sion, at that time; and not one which was not 
 passed upon, directly and specifically^ by the 
 various opinions delivered by this Court. 
 
 Now then, if your Honors .please, I propose, 
 very briefly, to go over that case and give rny 
 opinion as to what was decided, and thoroughly 
 decided, by the Court at that time. I will not 
 stop to read portions of the opinions from the 
 books. I will refer to the pages where you will 
 find the points discussed, to which I allude in 
 each instance. 
 
 AF this Court said, on another occasion, in 
 the case of Sullivan vs. Triunfo Gold and Sil- 
 ver Mining Company (by the way, I do not
 
 13 
 
 propose to read any authorities from the books, 
 as I have stated ; as it is easier to read them from 
 my notes, giving the number of the volume and 
 page) in the case of Sullivan vs. Triunfo Gold 
 and Silver Mining Company, (39 Cal., page 459) : 
 '' Where the alleged new fact existed at the com- 
 mencement of the former action, in which the 
 point at issue was the same, and the plain tiff, neg- 
 lected to avail himself of it, he is not entitled to 
 set it up in a subsequent action." 
 
 Now this is a simple announcement, by this 
 Court, of a well-settled determination a well- 
 settled determination of law that a decision and 
 judgment includes every point involved, or which 
 might have been raised, whether raised or not. 
 
 Mr. Justice RHODES. You mean, upon the is- 
 sues, as presented ? 
 
 Mr. HOGE. Yes. sir. I will explain myself 
 thoroughly. So well settled is that determina- 
 tion, that you can scarcely take up a law-book, 
 treating of such subjects, where this determina- 
 tion is not laid down, clearly, and definitely, and 
 distinctly, in so many words. And I say that, on 
 the former arguments of this case, all these quest- 
 ions were gone into, and a great variety of au- 
 thorities cited and relied upon. Your Honors will 
 find this to be the fact, if you take the trouble to 
 look into the records, and into the petition for a 
 re-hearing, into the arguments on the part of 
 the Spring Valley Water Company on one occa- 
 sion, and into the argument on re-hearing, you 
 will find all the authorities to which I refer gone 
 into. And, as I was about to say, so well settled 
 is this determination, that you cannot take up a
 
 report or a law-paper in relation to matters of 
 this sort, where you will not find it laid down as 
 a matter fixed and unalterable. During the 
 course of this agumcnt, on yesterday morning, T 
 happened to pick up the Pacific Law Reporter, in 
 which was printed a decision of the U. S. Court, 
 bearing on this question, the 'opinion being by 
 Justice Field. It is a decision rendered at the 
 October term of the Supreme Court a few 
 months ago and not yet reported in the vol- 
 ume. That was the case of Davis vs. Brown 
 '&'nl. } Judge Field delivering the opinion of the 
 Court. It is reported in the Pacific Law Reporter 
 for May 8th, 1877. And he goes on to discuss 
 this question of estoppel by judgment, etc. He 
 says : 
 
 " So far as the demand involved in the action 
 is 'concerned, the judgment has closed all contro- 
 versy; its validity is no longer open to contesta- 
 tion, whatever might have been said or proved at 
 the trial against it. The judgment is riot only 
 conclusive as to what was actually determined 
 respecting such demand, but as to every matter 
 which might have been brought forward and de- 
 termined respecting it." 
 
 There is not a single case to the contrary 
 anywhere, that has ever fallen under my observa- 
 tion. The business is, first to inquire and find 
 out what were the issues; and the judgment in 
 everyone of the cases is, that the decision in the 
 particular case concludes forever between the 
 same parties, in the same case, all the questions 
 involved ; and that they can be arranged in no 
 other form or shape. No matter what might have
 
 15 
 
 been said; no matter what arguments might have 
 been offered; no matter whether the decision was 
 correct or incorrect; it haa closed litigation be- 
 tween those parties. There is no case that holds 
 different. When you have ascertained what was 
 in issue, what the record did present for adjudi- 
 cation, what the Court pronounced upon, what 
 was the matter set forth, it forever concludes the 
 rights and obligations and duties of the parties, 
 with respect to those issues and records and mat- 
 ters, in whatever shape they may afterwards be 
 sought to be raised, or in whatever kind of pro- 
 ceeding an attempt may be made to resist the 
 litigation. Xow, if there is one single case to 
 be found against that proposition broad as I 
 make it I would like to see it. And whenever 
 the issue is brought up, that a matter has been 
 decided in this way, it is the adjudicated duty of 
 the Court to answer as to the nature and charac- 
 ter and scope of the issues involved; and then 
 the judgment of the Court, in that case, must be, 
 and will be, in conformity with its prior decision. 
 And when an issue of this kind is presented at 
 the threshold of the argument, in such a case as 
 this, the Court will undoubtedly require the par- 
 ties who contend that the matter has not already 
 been settled to show wherein the difference exists, 
 what issues were not legitimately involved, what 
 points of the judgment now sought were not 
 fairly within the scope required, as submitted to 
 the judgment of the Court, and as acted upon by 
 the Court in the ultimate decision of the case. 
 
 Now, I will undertake to show your Hpnp.ni 
 that this Court never would have arrived aj, t|j&
 
 16 
 
 conclusion which they announced, without passing 
 upon these matters now raised in these cases. 
 The right now claimed, I say, was necessarily 
 involved ; and if the propositions that are now 
 contended for by counsel are correct, the Court 
 would necessarily have arrived at a conclusion 
 directly contrary to that which they did pro- 
 nounce. If the arguments that have been sub- 
 mitted by counsel to you, during this week, are 
 correct and legal, then your judgment in the 
 former case should have been directly the reverse 
 of the conclusion at which you did arrive. I say 
 that that is a matter of necessity, a deduction 
 which is inevitable. I speak, of course, of legal 
 necessity ; not of great water necessity. As a 
 legal necessity, the Court would not have arrived 
 at the conclusion which they did, without passing 
 upon the questions here involved ; and they could 
 not have arrived at the conclusion which they 
 announced, and at the same time have admitted 
 the arguments now contended by counsel to be 
 correct and conclusive. 
 
 And I will undertake to show you that'they did 
 directly comment on the very questions which have 
 been raised here, that the court did decide the 
 very issues now before you. 
 
 The question was, as to the right of the City 
 and County of San Francisco to take water of the 
 Spring Valley Water Company, free of charge, for 
 all purposes which they now claim to take it free 
 of charge, and under the same laws and principles 
 under which they now claim it, the same ordi- 
 nances, the same provisions of legislative action, 
 everything, in fact, which they now spread upon
 
 17 
 
 the pleadings ; it was all involved in the issues, 
 and insisted upon in the arguments then. 
 
 Now then, the very first appeal was taken in the 
 case of San Francisco vs. Spring Valley Water 
 Works Company, in the July term, 1870. The 
 decision will be found in the 39th of Gal., p. 473. 
 The pleadings were almost identical with those 
 that afterwards came up on the second appeal, 
 identical with those presented and relied on in 
 their very records. Now, what was the decision 
 of the Court ? What was claimed at that time ? 
 And what did the Court decide in the very first 
 opinion? 
 
 The Court held that the rights of the parties 
 were not governed by these provisions of law and 
 the ordinances in relation to water works, the 
 San Francisco City Water Works Company. But, 
 on the contrary, they decided that the rights of 
 the parties were governed by the provisions of 
 the Ensign Act; and they dispensed with all 
 these arguments in relation to the San Francisco 
 Water Works Company. And why? Because the 
 provisions* of the Act of April 8, 1863, placed 
 these two companies, the Spring Valley Water 
 Company and City Water Works Company, upon 
 a par. And they decided that the city would not 
 claim water free at all, except for the purposes 
 and within the exceptions and provisions set forth 
 in the Ensign Act. That was the first decision of 
 this Court, upon a full argument upon the entire 
 case an argument really upon these ordinances 
 and these Acts of the Legislature giving force to 
 them because 1 will attempt to show, before I 
 have done, that they did not have any force,
 
 18 
 
 except through the Acts of the Legislature. Your 
 Honors decided that it was beyond the power of 
 the city council to determine this matter. Upon 
 an argument which completely presented all these 
 issues, the Court takes up the case and decides 
 that the rights of the parties are not governed at 
 all by the rights of the City Water Works Com- 
 pany, but are to be determined alone as growing 
 out of the Ensigi Act. 
 
 That was the decision of the Court, upon which 
 the case went down, and upon which there was a 
 second trial in the Court below. Then there was 
 a second appeal, the judgment being similar in 
 the second trial to the judgment in the first trial. 
 
 The first opinion which this Court rendered, 
 which has found its way into the records, was 
 given on the IGth of July, 1873; it is reported in 
 a pamphlet decision of this Court. The Court 
 decided that the rights of these parties in these 
 suits are still governed by the Ensign Act, and by 
 the Ensign Act alone. That, in consequence of 
 water having been introduced into the City of 
 San Francisco by the City Water W(frks Com- 
 pany on the IGth of September, 1858, the Spring 
 Valley Water Company became liable upon that 
 event; and, under the provisions of the third 
 section of the Ensign Act, it was bound to fur- 
 nish its quota for fire and other municipal pur- 
 poses. Still holding that the rights of the parties 
 depended, not upon these ordinances, not upon 
 the general law for we have not come to that 
 yet but upon the provisions of the Ensign Act, 
 that the occasion referred to in that section had 
 arisen ; that, subsequent to the Ensign Act, and
 
 19 
 
 on the 16th of September, 1858, water had been 
 introduced by another company ; and, therefore, 
 under the last clause of the third section of the 
 Act, this other company became liable -to do 
 what ? It became liable to do what that second 
 clause prescribed that it should do. 
 
 The first clause provided that the company 
 should only be liable to furnish water for fires, 
 during the pendency thereof ; but when this 
 event happened ; when water was introduced by 
 the new company, it is provided that water shall 
 be supplied, not only for fires a quota of supply 
 for fires but for all municipal purposes. The 
 claim was made, or sustained, by virtue of that 
 provision, and that provision alone. 
 
 Now, that was the second decision that was 
 made. That was on the 16th of July, 1873. 
 
 A petition for a rehearing was filed. This 
 Court granted a rehearing. The case came up 
 again for argument. It was re-argued again, 
 orally and in printed briefs, in 1874. The case 
 was then reported in 48th Cal., p. 493. 
 
 Now then, what was the decision on this occa- 
 sion ? That was the third time when this case 
 came up for discussion before the Court upon all 
 the questions involved in the record. And we 
 say that the case involved all the questions that 
 appear in the records here, with the exception to 
 which I have already alluded. It had been de- 
 cided that the rights of the Spring Valley Water 
 Company were to be measured, and measured 
 alone, by the provisions of the Ensign Act, the 
 third section regulating their rights, and by no 
 other Act; that no other proposition of law gov-
 
 20 
 
 erned them ; that they were controlled by no 
 other provision, statute, or ordinance; but upon 
 all the issues directly within the record, raised 
 and discussed, it was held that their rights were 
 governed by the third section of the Ensign Act. 
 It was held that they were liable to furnish their 
 quota of water, not only for fire but for all muni- 
 cipal purposes, without limit as to the extent of 
 the supply, and without right, presumably, to 
 make any charge therefor. 
 
 Now, then, on this occasion, the Court took a 
 new departure. On this occasion the Court held 
 that corporations can only be formed under gen- 
 eral laws; that the rights and privileges, duties 
 and responsibilities, of corporations, arise under 
 and are governed by the general law of the land; 
 that the Legislature cannot, by special law, con- 
 fer privileges or exact duties from existing corpo- 
 rations; and that the rights and duties of the 
 Spring Valley Water Company must be decided 
 by the general law under which it was organized, 
 and is under no obligation to furnish water to the 
 city and county free of charge, except for fires. 
 The Court disposed of every issue in that case. 
 They disposed of your City Water Works Com- 
 pany ; of your ordinances ; of your contract, as it 
 was alleged or was called. They set aside the whole 
 Ensign Act; they declared that it had no applica- 
 tion. They declared that you had to look to the 
 general law of incorporation for the rights on 
 one side and the duties on the other; that the 
 rights and duties are to be measured by the 
 general corporation law, and by that alone ; that 
 the Legislature cannot, by special law, confer
 
 21 
 
 privileges on or exact dues from existing corpo- 
 rations; that the rights and duties' of the Spring 
 Valley Water Company must be decided by the 
 general law under which it was organized, arid 
 that it is under no obligation to furnish water to 
 the city and county free of charge, except in case 
 of fires. (See pp. 514 and 515 of 48th Cal.) 
 
 His Honor, Judge Crockett, entered into a very 
 elaborate discussion of the points involved in the 
 case. And in the decision in the original case on 
 this hearing, and in the decision on the re-hearing, 
 we say that the whole subject was thoroughly 
 canvassed and all the issues completely decided. 
 In the opinion on p. 522 of the 48th of Cal., the 
 Court holds that corporate powers cannot be 
 granted, enlarged, or modified by special act, and 
 that the introduction of water into a city for the 
 use of the inhabitants and the corporate authori- 
 ties, is not a municipal purpose, etc. The Court 
 decided that the company is subject to no duty, 
 except those prescribed by the Act of 1858; the 
 duty being, to furnish water for fires and other 
 cases of great necessit} 7 . 
 
 The city and county, dissatisfied with the judg- 
 ment, applied on petition for rehearing, and this 
 Court delivers a second opinion and judgment in 
 the premises, from which I have made a quotation. 
 
 The Court comment upon the third section of 
 of the Act of April, 1858, providing that all 
 privileges hereafter granted for the introduction 
 of water into San Francisco are granted to com- 
 panies incorporated under this Act. It therefore 
 became a part of the general law, to which refer- 
 ence was had in the ultimate decision of the
 
 22 
 
 case. Tt is explicitly stated that this general la.w 
 did not render it incumbent upon the companies 
 organized under it to furnish free water to the city 
 free of charge, except in case of fire or other 
 great necessity. And dwelling upon that, in 
 answer to the argument of counsel upon the 
 other side, the decision was complete and conclu- 
 sive. 
 
 The decision in this case left the Ensign Act 
 unconstitutional. The Court held that the pro- 
 vision of the Act on which reliance had been 
 ?nade did not have the effect or authority which 
 was contended for it. 
 
 The Court then take up the position and claim 
 of counsel, that the Spring Valley Water Com- 
 pany is liable to furnish water, etc., as the suc- 
 cessor of the San Francisco Water Works Com- 
 pany. And the Court answer it and dispose of 
 that question finally. Under the provisions of 
 the general law of the 22d of April, 1858, there 
 is a direct disposition of everything that is now 
 insisted upon as left open. That is at page 527. 
 
 It was again contended, in order to maintain 
 the Ensign Act, that this was a mere grant of 
 an easement. And the Court goes on to answer 
 that proposition. The Court discusses the grant 
 of an easement as contended for: not to be a 
 grant of corporate rights, but only an easement 
 permitting the company to lay pipes, etc., subject 
 to certain duties. It was there contended that 
 the law did not mike a grant of corporate rights. 
 but only the easement permitting the company 
 to lay pipes through the city, subject to certain 
 duties; the question being as to whether it was a
 
 23 
 
 grant of corporation power at all, or a simple grant 
 of easement permitting them to lay pipes through 
 the streets of the city, for the purpose of convey- 
 ing water, subject to the duties imposed upon the 
 easement. 
 
 The Court, in answer to that, say this: that all 
 corporations had this right by the general law; and 
 that the only legal effect of the Ensign Act would 
 be to impose duties and confer rights essentially 
 different from those of other corporations under 
 the general law. And they say that this cannot 
 be done by a special act. And they go on and 
 hold that such a grant is purely a grant of corpo- 
 rate power; that it is not a mere grant of ease- 
 ment, for the company to take advantage of by 
 laying their pipes through the streets and carry- 
 ing water for distribution to the people, but that 
 it is a direct right. This is doubly applicable to 
 the city ordinances which purport to grant an 
 easement coupled with conditions. They make 
 this distinction between the rights of a corpora- 
 tion under the general law and the rights of this 
 corporation, which they undertake to allow to 
 come into the streets of the City of San Francisco 
 with their pipes, and secure to them rights and 
 privileges which no other corporation in the State 
 could secure. This was one of the very provis- 
 ions which your Honors relied upon and com- 
 mented upon in the Ensign Act. 
 
 It was proposed to fix rates then, and compel 
 the people to pay them until the corporation shall 
 have released a certain percentage, irrespective of 
 and in addition to the rights of all corporations
 
 24 
 
 under the general law of the State. This Court 
 held that that could not be done by the city. 
 
 And this cannot be done by the city, any more 
 than by the Legislature. The city cannot have 
 any powers that the Legislature itself does not 
 have. The Legislature could never have passed 
 such a law, as your Honors have held, under the 
 Constitution. The city knew that, and they came 
 to the Legislature to have these acts confirmed. 
 They came to the Legislature to have special acts 
 passed to confirm these. The only way in which 
 they got any authority whatever, and acquire any 
 validity whatever for their acts, is by virtue of 
 these statutes which confirmed their action 
 directly. 
 
 This matter appears, not only in a decision of 
 this Court in the main case, but in the case of the 
 Truckee and Tahoe Turnpike Road Company vs. 
 J. B. Campbell, reported in 44 Gal., pages 90 and 
 91 ; also, in the case of Waterloo T. R. Co. vs. 
 Cole, which is not yet reported. 
 
 Now, I come to the opinion of Mr. Justice 
 McKinstry, upon which much has been said. That 
 you will find at page 530. In this opinion, the 
 learned justice agrees with the prevailing opinion 
 delivered by Mr. Justice Crockett, and he makes 
 an additional argument to sustain the proposition 
 advanced by his Honor, Justice Crockett. And 
 he contends, with great force of reasoning, that 
 the Legislature could not pass a special Act grant- 
 ing powers or privileges to a particular corpora- 
 tion created under a general law not enjoyed by 
 all corporations ; nor could the Legislature pass a 
 special Act limiting or burdening with peculiar
 
 25 
 
 conditions the rights or powers acquired by cor- 
 porations from the general law. 
 
 We are to ascertain the rights, privileges, pow- 
 ers, duties, and obligations of the Spring Yalley 
 Water Company by reference only to the general 
 law under which it is incorporated. 
 
 And then he goes on to comment on these dif- 
 ferent rights of compensation as strengthening 
 and rendering conclusive the argument which he 
 has made. On this point, that these rights or 
 impositions can not be instituted by a special act 
 as against or in behalf of such corporations; that 
 these corporations must get their rights from the 
 general law, if at all, which secures the same 
 rights, duties, privileges, responsibilities and obli- 
 gations to all corporations which I will attempt 
 to show is the true construction of the Constitu- 
 tion, in another portion of what I have to say. 
 
 I need not repeat the statement that this lan- 
 guage is directly applicable to the claim under 
 the City Water Works Company. I may have 
 occasion to refer to that in another portion of the 
 case. 
 
 Now, in the general order of this matter, I 
 come to this opinion of Mr. Justice Rhodes. 
 That will be found on page 533 Justice Rhodes' 
 dissenting opinion. 
 
 While agreeing substantially with the argument 
 of the majority of the Court, Mr. Justice Rhodes 
 thinks that the question did not really arise upon 
 the record, as has been stated. And he discusses 
 the case upon the ground which is asserted by 
 Mr. Justice Crockett, in his opinion denying the 
 re-hearing. He agrees to the constitutional argu-
 
 26 
 
 ment of the majority, and thinks the question 
 does not arise in the manner suggested. While 
 agreeing with the construction put by the Court 
 upon the provision of the Constitution, referred 
 to, he contends that the proposition set forth is 
 not really involved in the record. And his dis- 
 sent is placed upon that ground alone. 
 
 It would seem to me, then, if your Honors 
 please, upon this brief review of these opinions, 
 that an end is here put to all discussion as to 
 what he decided in the case referred to. 
 
 The power of the city and county, and the 
 rights, duties and obligations of this corporation, 
 it would seem to me, are clearly and definitely 
 and finally determined by the judgment of the 
 Court and also by the opinions which are deliv- 
 ered. 
 
 But it seems now, if your Honors please, to 
 be considered from a certain passage in Judge 
 McKinstry's opinion, that what is a "great neces- 
 sity" is left still an open question by this decision. 
 And that is the only proposition upon which 
 could be based a question of this character the 
 question as to whether there was anything what- 
 soever left undecided in the judgment in that case 
 which would permit the argument here upon the 
 main points at issue. It is contended that Judge 
 McKinstry in what he said withdrew from the 
 operation of this decision this question as to what 
 constitutes " great necessity," his opinion being 
 thus interpreted one Judge dissenting and one 
 Judge not sitting his concurrence operating to 
 make the decision of the Court. 
 
 Now let us see what that statement is.
 
 27 
 
 On page 531 of the 48th Cal. you will jind the 
 passage. The Judge is discussing the constitu- 
 tionality of the Ensign Act; and he says: "The 
 general law required all water companies to fur- 
 nish water to the extent of their means, and free 
 of charge, to the city or town to which water was 
 conducted, l in case of fire or other great neces- 
 sity.' " Recollect that you are now discussing 
 the constitutionality of the Ensign Act in this 
 action. The Judge goes on: " I express no opin- 
 ion as to the precise meaning of the phrase 'other 
 great necessity.' " 
 
 And then he goes on and assumes that the con- 
 struction given by the Court on a former appeal, 
 when he was not on the bench, to the effect that 
 these words did not include every municipal pur- 
 pose, was correct. And then he proceeds upon 
 that assumption to discuss the question which he 
 was then mainly engaged in discussing, to wit: 
 the constitutionality of the Ensign Act. 
 
 Now, may it please your Honors, is there any- 
 thing in this to aid the proposition on the other 
 side? 
 
 As I have attempted to show, and as I think I 
 am borne' out by the record, the question was 
 necessarily involved, discussed in the briefs and 
 in the opinions, and necessarily included in the 
 decision. 
 
 Now, the learned Justice in using this language 
 was merely reserving the expression of his opinion 
 as to the precise meanings of the words used; as 
 to what causes and under what circumstances 
 these words would be applicable. That he did 
 not hold them applicable to, and bearing upon,
 
 28 
 
 the case then before him, seems to me sufficiently 
 apparent. That was not a case of great necessity. 
 And it was not a case of " other great necessity" 
 within the meaning of that term. And therefore 
 it was not necessary for his Honor, the learned 
 Justice, to express an opinion as to what cases 
 the term would apply to as to what cases that 
 term on which he reserved would apply. He is 
 not, mind you, intimating any doubt or expressing 
 any want of concurrence in what has been said 
 which may bear upon the subject. And in his judg- 
 ment upon the case before him, he was not neces- 
 sarily called upon to give an expression of opinion 
 as to the proper definition or limitation for this 
 term, and so in passing he reserved his construc- 
 tion of the words. In his opinion it was not 
 necessary, at that time, for anybody to go ex- 
 plicitly into a discussion of the meaning of that 
 term. It was his incidental remark in an opinion 
 in which he gave judgment in concurrence with 
 the majority of the Court. But this, certainly, 
 does not detract from the significance or the effect 
 of the judgment which was rendered. That judg- 
 ment was expressed more particularly in the opin- 
 ion of Mr. Justice Crockett to which I refer. 
 
 Mr. Justice McKinstry says he does not under- 
 take to go into a discussion with respect to the 
 cases which would properly come under this term. 
 
 Mr. Justice McKinstry says that on the prior 
 appeal, and before he came to the Bench, it was 
 held by the justices that these words did not in- 
 clude every municipal purpose ; and he assumes 
 that that construction was correct. I understand 
 that by the force of law and reasoning, he could
 
 29 
 
 not have concurred in that judgment, except he 
 based his concurrence on that assumption, unless 
 he believed that when the Court were ascertain- 
 ing the Spring Valley Water Company, under the 
 Act of 1858, the case was not one involving any 
 great necessity. It seems to me there can be no 
 question upon that subject, that that was the 
 opinion of Mr. Justice McKinstry. I have not 
 heard him intimate other than that or different ; 
 that the opinion did not call upon him to deter- 
 mine what precise character of case the exception 
 referred to would be applicable. It certainly was 
 not necessary for him to go into any such con- 
 struction or definition. 
 
 The Act of 1858 says that you shall furnish 
 water to the full extent of your means, even 
 though it takes up all the water in your reser- 
 voirs, and though it exhausts all your property, 
 you shall furnish it in case of fire or other great 
 necessity. And I think it was absolutely essen- 
 tial, in order to come to the conclusion at which 
 the Court then arrived, that they should pass 
 upon the question as to whether the uses and 
 purposes set up in those proceedings were such 
 uses and purposes as made a case arise under the 
 exceptions of the Act of 1858. 
 
 Now, if your Honors please, I have hurriedly 
 gone over the whole of these opinions, from the 
 first to the last; and I submit that it forecloses 
 all discussion upon any one of these questions 
 which have been raised here, with the exception 
 of the questions that rise in the case of the appeal 
 from the Fifteenth District Court.
 
 30 
 
 But I am not going to rest, if your Honors 
 please, even upon that proposition. I have some- 
 thing to say upon the question, if it is open to 
 discussion. And I will attempt to show that, if 
 the question was open for discussion, it is clear 
 that your Honors could not arrive at any conclu- 
 sion; if it was not foreclosed by the opinions 
 which this Court has already delivered on the 
 rights of these parties. 
 
 This provision requires water corporations to 
 furnish water in case of fire or other great neces- 
 sity. Now, what is the meaning of that phrase 
 in the connection in which we find it? What 
 does it mean ? If my opponents are correct in 
 their construction if the other side is correct in 
 their proposition on this subject and their whole 
 case depends upon its construction then this 
 expression means and includes the use of water 
 for every and any purpose for which the munici- 
 pality can use or desire to use water. There is 
 no limit to the extent of that proposition. You 
 cannot step be} 7 ond this. All the ordinary pur- 
 poses for which a municipality desires water, is, 
 and must be, covered by the phrase, according to 
 a wise interpretation. It is all covered by this 
 provision. 
 
 The first remark that would strike anyone in 
 reading this provision, and considering its intent 
 and meaning at least the first thing that would 
 strike me would be: What was the necessity of 
 this provision at all, if the object was to include 
 every possible use of water ? Why did not the 
 Legislature say at once, and that in very plain 
 and definite language that admitted of no mis-
 
 31 
 
 construction and no mistake, that water should 
 be furnished by the corporation to the city and 
 county, without compensation free of cost for 
 all municipal purposes whatever? Why should 
 they pervert language, and use language which 
 presupposes, upon the very face of it, that there 
 were purposes for which water was not to be fur- 
 nished free of compensation ? I say that the very 
 language itself presupposes that. 
 
 Certainly it was in the mind of the Legislature, 
 when they used that language, that there were 
 purposes for which water was not to be fur- 
 nished to municipal corporations or municipal 
 bodies without compensation ; and the question 
 is : What are those purposes ? The companies 
 are to furnish water free, in case of fire or other 
 great necessity. 
 
 One would suppose that the connection in 
 which a term is used, gives character and mean- 
 ing to it ; certainly where there is anything 
 doubtful about it. It has always been so held, 
 in all cases of this kind. They are to furnish 
 water free, in case of fire or other great necessity. 
 A case of fire is an unforeseen thing. Tt is a 
 sudden calamity which may happen at any 
 time. It is fortuitous ; it may happen and 
 endanger the public safety at any time. There- 
 fore, it immediately strikes the mind of the 
 Legislature, in passing this law. that this kind of 
 provision should be made for it. And it is at 
 once provided for. Fire is regarded as a great 
 and overpowering necessity, for which the excep- 
 tion of the use of the property of the company, 
 without charge, is made imperative. Fire en-
 
 32 
 
 dangers the property of the public. The lives 
 and property of the citizens of a town are im- 
 perilled by it. And the legislators wisely said : 
 We will enact that the corporations organizing 
 under this law, for the purpose of procuring sup- 
 plies of water to the inhabitants of the various 
 municipalities, shall give this tribute of their 
 property when occasion demands. The provision 
 was industriously inserted into the statute. But 
 then there may be other occasions which may re- 
 quire the application of the same precaution in- 
 definite, sudden, unforeseen, exceptional against 
 which the public should be protected ; and the 
 provision is made also, that these cases should be 
 provided for in the same manner. Therefore, the 
 case is made broad enough to cover similar unfore- 
 seen dangers. But that you can stretch the ex- 
 pression beyond this, to cover the ordinary pur- 
 poses for which the municipal body may desire 
 water, seems to me preposterous and altogether 
 out of the question. It is against reason, and 
 against common sense. 
 
 I do not care now to enter upon a certain con- 
 versation which took place between one of the 
 Justices of the Court and Mr. Swift in relation 
 to this question. I have it upon my notes, and 
 may allude to it hereafter. 
 
 There were one or two cases cited here, and 
 read over, which did not seem to me to have very 
 much bearing upon the question. -I think you 
 can't find much authority on a question exactly 
 like this; because it depends upon the plain 
 meaning of the provision itself upon its own 
 language, and the connection in which you find
 
 33 
 
 that language, and the general object and purpose 
 which was manifestly in view by the Legislature 
 enacting the statute. 
 
 The case of Mills vs. Barbour, reported in the 
 24th Wendell, seems to me to bear somewhat 
 directly on the matter under consideration. 
 
 That was an action to recover rent upon a lease. 
 The lease contained an exception to its operation 
 in case of fire or other casualty. The fact is, 
 that the term here " in case of fire or other 
 great necessity " means precisely that very 
 thing upon the casualty of fire or other great 
 necessity. Then, in that case, water was to be 
 furnished free, and the case of fire is to be car- 
 ried, for the sake of interpretation, to other cases, 
 or cases of necessity great necessity. In case of 
 fire, or in case of other great necessity. That is to 
 say, upon a casualty of fire or upon any other like 
 casualty of great necessity. Then, and in that 
 event, the Legislature will put this duty upon 
 this creature of legislative power. The Legisla- 
 ture will make this creature, under the law of 
 its creation, contribute, in cases of great public 
 danger, to the protection of the public the pro- 
 tection of that public for whose uses they are em- 
 powered to make these supplies of water. It was 
 the very object and purpose of this statute of 
 this particular section and clause as I shall 
 attempt to show; and they never could have 
 thought of going further than that, I am cofi- 
 dent, under any judgment of good sense and fair 
 reasoning. 
 
 Now, the provision in the question in the case 
 referred to was made an exception in the lease.
 
 34 
 
 Then, and in such an event, the party was not to 
 pay any rent at all. The exception was from the 
 operation, or the happening of fire, in case of fire 
 or other casualty. Here the words are, " In case 
 of fire or other great necessity." 
 
 The difference was, that the city had cut down 
 and taken part of the premises for a public street; 
 and it was contended that this fell within the ex- 
 ception, and should relieve the party from -paying 
 rent. But the Court held that it was not within 
 the exception. And the Court say that which, 
 it seems to me, must strike anybody with great 
 force which any one would say, I think, in the 
 consideration of such a question the Court say 
 that the term, " other casualty," refers to some 
 fortuitous interruption of the use. " This is 
 clear, not only upon the import of the words, but 
 from the connection in which they are found. 
 No casualty has occurred ; on the contrary, what- 
 ever has taken place has been in pursuance of 
 established law. and might have been, and proba- 
 bly was, anticipated." Such is the language of 
 the Court in that case. 
 
 It seems to me that this reasoning applies, with 
 overwhelming and conclusive force, to the case in 
 hand. Should not the Legislature have antici- 
 pated that the municipal government would want 
 water for a thousand purposes? ordinary munici- 
 pal purposes ? Why resort to such expressions, if 
 it was simply intended that all municipal wants 
 of water should be provided for? Did not the 
 Legislature know that the city government could 
 not be carried on without water ? Did not the 
 Legislature know that the municipality officers
 
 35 
 
 could not perform the great duties devolving upon 
 them as a branch and arm of the State government, 
 without a supply of water? and that required 
 daily for the purposes of the municipality ? Could 
 it be pretended that such a want might not be, 
 and should not be anticipated ? and that there- 
 fore it could by no manner of means fall within 
 the phrase, in such a connection, " other great 
 necessity ? " Water is needed to protect the pub- 
 lic interests in innumerable ways; to carry on the 
 operations of the government ; for the immediate 
 supply of the officials of the municipality, "and 
 those under their charge in the various institu- 
 tions of the city. Are not these wants notorious ? 
 and such as every legislator, however stupid or 
 unobservant, must take full notice of? How can 
 the gentlemen claim that such ordinary wants for 
 such an indispensable article, are to be classed 
 under this term used in such a connection, always 
 remembering that the very sentence itself directly 
 presumes the contrary. 
 
 So in the case of Bigelow vs. Collamore, in the 
 5th Gushing, 227, there was a very similar excep- 
 tion in the lease. It provided for loss from fire 
 or other unavoidable casualty relieving the 
 party from the payment of any rent in such an 
 event. It was the case of a mill rented or leased. 
 The lease contained an exception, relieving the 
 party from his liability and responsibilities under 
 the lease in case of loss from fire or other una- 
 voidable casualty. The mill broke down because 
 the walls were rotten. They had been in use for 
 a long time, and had become infirm and rotten, 
 and it was contended, in that case, that thisdisas-
 
 36 
 
 ter came within the exception, " unavoidable 
 casualty." But the Court say that this is not 
 within the exception at all. The Court say that 
 this is not an unavoidable casualty ; it could have 
 been anticipated and provided for. It did not 
 fall within the meaning of these terms; their ob- 
 ject and intention and purpose being to meet a 
 totally different condition of affairs an entirely 
 different character of loss or calamity. That 
 exception was to guard against those events which 
 could not be anticipated. You could not antici- 
 pate fire, and that was, therefore, provided for. 
 You cannot anticipate some other great calamities 
 or convulsions when the public safety would be 
 endangered. 
 
 During the course of this argument, if your 
 Honors please, the question has been asked sev- 
 eral times, Can you state any other instance of 
 great necessity? Can you give any other illus- 
 trations, or any illustration, beyond the case of 
 fire? I think I could state many such occasions. 
 in which the exception here would be binding 
 upon the company. I don't think there need be 
 any apprehension that the argument would fail, 
 on our side, because of incapacity to enumerate 
 other great necessities which legitimately come 
 under that language used in that connection. 
 I can suggest many such occasions. I might 
 suggest occasions where the public safety would 
 be endangered by sudden plague by cholera, 
 or other sweeping pestilence. There are a thou- 
 sand other ills to which a community is liable, 
 which might, in their violence and sweeping 
 character, demand the absolute and entire use
 
 37 
 
 of the property of this company, for the cleans- 
 ing and saving purposes of the whole comma 
 nity. I think there would never be any ques- 
 tion, when such occasion arose. Indeed, the 
 company has never evinced any disposition, nor 
 has it any disposition, to avoid the expense de- 
 volving upon it legitimately under this phrase. 
 There might be enumerated a large number of 
 cases of casualty and great necessity, where the 
 municipality has need to use large quantities of 
 water in order to protect the lives and property 
 of the public, where there could be no possible 
 question as to the duty of the company to open 
 their hands to the fullest extent. 
 
 And you will remark that, in order that this 
 company may be able to meet precisely such great 
 cases of public necessity and casualty, they have 
 another, and if you please, an incidental right to 
 protection under the law. Not that it is precisely 
 any argument in their behalf ; but every citizen 
 is interested in maintaining the integrity and 
 power, for beneficent purposes, on the part of this 
 corporation, whenever the hour of great public 
 calamity requiring its resources shall have arrived. 
 
 And it was to guard against these great cases of 
 public danger, that this clause was added to the 
 provision for a full supply, free of cost, in times 
 of fire. The supply is to be, at times of fire, and 
 on other occasions of great necessity. It was 
 eminently right and proper that the Legislature 
 should burden these privileges with this obliga- 
 tion, and contribution for the public protection. 
 And the selfish considerations of the members of 
 the corporation itself would have demanded such
 
 38 
 
 a provision in its general organic law. But when 
 you come to talk of taking the property of this 
 company for the uses of the city for the ordinary 
 purposes of the municipality free of compensa- 
 tion, as a taking under this clause, you are talking 
 very di.'lerent matter. 
 
 The construction contended for, is to deprive 
 the language of all meaning, and to defeat the 
 very intention and object of the provision. It is 
 to impute to the* Legislature, in using language 
 sufficiently definite and clear to effect the object 
 in view the design to take from all such cor- 
 porations their entire property, if necessary, and 
 apply it to the ordinary public uses of the city 
 and county, without compensation. A contradic- 
 tion 'upon contradiction! an assumption of intel- 
 ligence on the part of the Legislature, and of 
 honest purpose, and at the same time of its sinis- 
 ter and revolutionary disposition. Altogether, it 
 is incredible. In short, you suppose a system of 
 legalized plunder, and that under the most aggra- 
 vating circumstances. 
 
 Counsel have indulged in elaborate and abusive 
 diatribes against the Spring Valley Water corpor- 
 ation, which simply seeks, at the hands of a Court 
 of law, a determination what are its rights of 
 property, what are the claims which the city 
 government can properly and legally maintain 
 proposing to be governed by that decision. 
 
 Now, I cannot, for the soul of me, perceive 
 upon what reason or principle or ordinary rule of 
 construction, this question if it is now an open 
 question can be determined by any other decis- 
 ion than the one at which you have already
 
 39 
 
 arrived : the decision that cases of this character 
 are not within the exception of the law. not 
 covered by the provisions of the statute. 
 
 Now, if your Honors please, I could not. if I 
 was to talk a month, put before you my views 
 any plainer than I have done; that this provision 
 is simply and manifestly intended to work this 
 result: that all corporations, that all companies 
 allowed to be incorporated for the purpose of 
 bringing water into a city, for the purpose of dis- 
 posing of it to the citizens thereof, shall, in time 
 of great public danger, contribute to the protec- 
 tion of the public which gives them their rights. 
 And you can make no more out of it. It seems 
 to me that every simple statement of facts, every 
 honest proposition in the premises, every legal 
 argument on the subject, tends directly, with any 
 fair mind, to that conclusion. And I cannot waste 
 your time, or weary myself, with any further 
 attempt at argument, or any continued endeavor 
 to make this matter plainer from my stand-point, 
 than I have done up to the present moment. I 
 am sure, that if it is not clear to your Honors, 
 that I am correct in these views, more must be 
 due to the infirmity of my statement, than to any 
 inherent defects in my cause. 
 
 His Honor, Judge McKinstry, asked Mr. Swift 
 to say what were the limitations upon this power 
 of demand, if there were any. And what was 
 his reply ? Why, Mr. Swift says that the public 
 baths and ornamental purposes, like fountains, 
 might be within the meaning of the exception. 
 Where does he get the authority for that ? Who 
 is to judge of that the city authorities? Accord-
 
 40 
 
 ing to this theory the city authorities are the 
 judges, and their determination is final and con- 
 clusive. That is the practical effect of his argu- 
 ment. They are to determine what is absolutely 
 necessary, or otherwise, for the public use. But 
 where is the law making them an umpire in such 
 a case ? 
 
 Accept their decision, and look at it. There 
 would be no escape, then, from the authority in 
 the other cases which he would enumerate, under 
 his charitable disposition. For the city authori- 
 ties may determine that public baths are abso- 
 lutely essential for the public health. And the 
 moment they make that determination, according 
 to his theory, water for such an object is included 
 among the great necessities. I think there is no 
 limit to their demand, on such theory. It is 
 either one thing, or the other. The law either 
 gives the city government absolute control of the 
 resources of the water company, for every pur- 
 pose which they may determine proper or neces- 
 sary, or there is some reasonable restriction in 
 the premises, indicated in the language which we 
 have so often quoted. According to my friend's 
 theory, there is no escape from the conclusion 
 that this company is bound to give water for pub- 
 lic baths, and even for its fountains, if the city 
 authorities so determine, even though it took the 
 whole property of the corporation. 
 
 Now, if your Honors please, I do not propose 
 to say much, if anything, further, upon this sub- 
 ject of what constitutes other great necessity. 
 But I propose to submit some other considera- 
 tions which, it would seem to me, upon general
 
 41 
 
 constitutional principles, aid this argument, if 
 they do not render it conclusive! 
 
 I think I could defend the decision made here 
 in this old case, successfully, upon grounds which 
 do not apply, or which are not assumed, in the 
 discussion on that case. I do not propose to 
 assume directly although I think I could main- 
 tain it with great plausibility, to say the least of 
 it that the State, and much less a subordinate 
 body, has no power, under the Constitution, to 
 take private property without compensation, un- 
 der the guise or pretense of the incorporation 
 law, or under the pretense, by the city, of the 
 exercise of the same power, secured by law, to 
 permit a corporation, organized under the general 
 law for the purpose of supplying a city with 
 water, to enter and supply such city or its inhab- 
 itants, in pursuance of its charter and corporate 
 rights, to carry out its purposes, to fix conditions, 
 to exact dues and to give privileges, beyond and 
 different from those attaching to all corporations 
 organized under the same general law. And this 
 by the simple subterfuge calling such ordinances, 
 adopted and enforced by special Acts of the Legis- 
 lature, contracts as a contract. For I think it 
 is perfectly clear that the city has no power to 
 grant such franchises; and that these ordinances 
 did attempt to grant franchises; and that they 
 therefore applied to the Legislature for a special 
 law to confirm their action. I think it is clear 
 that these ordinances were originally void, and 
 that they are no better from the action of the 
 Legislature. The cases which I have cited would 
 seem to go directly to that point. I am now
 
 42 
 
 speaking incidentally, in relation to the proposi- 
 tion I am advancing upon these ordinances. 
 
 There is another portion of the Constitution, 
 if your Honors please, which, it seems to me, has 
 a direct bearing on a subject to be considered in 
 connection with this other proposition which I 
 shall advert to in a moment. That is, that while 
 private property cannot be taken for public uses 
 without due compensation, it cannot be taken at 
 all for private use, upon any terms, without satis- 
 factory and freely accepted compensation. It 
 cannot be taken for private uses, against the con- 
 sent of the owner, with or without consideration. 
 There is no power to take private property, for 
 private uses, under any circumstances, or for any 
 consideration ; they cannot take it for public uses 
 without just compensation. 
 
 Now, this constitution, as a matter of course, is 
 to be construed as a whole, and each provision is 
 to be construed with reference to every other 
 provision; one may qualify and limit and restrain 
 the generality of the others; they are to be taken 
 altogether they are to be construed together. 
 
 Now, the constitution says that the Legislature 
 may provide, by general law, for incorporations 
 for public and private incorporations ; they may 
 provide, by special law, for municipal corpora- 
 tions. Now then, in the exercise of that power, 
 can the Legislature provide that all corporations 
 for it must be for all, or for none that all corpora- 
 tions, for every purpose of trade or commerce, for 
 every kind of business, must give the whole of its 
 property to the use of the State, or any subordi- 
 nate subdivision of the State, without coinpensa-
 
 43 
 
 tion ? Would anybody contend that that could 
 be done, in so many words ? that that could be 
 done by legislation directly? Make it a condition 
 of the creation of the corporation that they could 
 exact from the corporation, for public uses, all of 
 its property to the extent of its production the 
 whole of its means, for public uses, without any 
 compensation. Can it annex such a condition as 
 that to the privilege of being an incorporation 
 under the general law? 
 
 Now, it seems to me that it is perfectly obvious, 
 if this can be done by the Legislature, under 
 these constitutional provisions, it can go to any 
 extent even to the extent of taking the whole 
 property of the corporation for public uses. In 
 any given event they can take for public uses the 
 entire production of any incorporation organized 
 under the general laws of the State. Now, in this 
 very case it goes to that extent. Take this very 
 case. Not only is the corporation, by the provis- 
 ion of the law, required to furnish water to the 
 extent of its means in case of fire or other great 
 necessity, but, according to the construction of 
 the learned gentleman, the city might now go to 
 that extent, under the term " other great neces- 
 sity," to demand its entire production for munici- 
 pal purposes! The corporation must furnish to 
 the full extent of its means, for all the ordinary 
 purposes of the city, without stint, without limit! 
 It is perfectly obvious that such a construction 
 would give to the city the legal right to take the 
 entire production of the corporation and apply it 
 to the uses of the city, without compensation, in 
 direct violation of the accompanying constitu- 
 tional provisions to which I have referred.
 
 44 
 
 Now, then, could it ever have been intended 
 by the Legislature, in the exercise of its powers 
 of incorporating by general law, to concede that 
 power in any case ? Or was it ever the intent of 
 the Legislature to annex that kind of condition to 
 the incorporation of water companies alone. 
 
 For, mark you, according to the theory ad- 
 vanced here, under the glitter of the flowing exor- 
 dium of the counsel, this provision is made applic- 
 able to water companies alone, and no other cor- 
 porations in the State. 
 
 The Legislature has never attempted anything 
 of the kind before. In relation to no incorpora- 
 tion for any purpose whatever, or for any busi- 
 ness whatever, or for any object whatever, within 
 the power of the Legislature to incorporate, have 
 ever they attempted to do any such thing before. 
 This is the first instance ; and not only is it the 
 first instance here, but there does not exist such 
 an instance in all the laws in all the States in 
 the Union. Nor in England, nor anywhere 
 else, can there be found a law of like provis- 
 ions, or conferring like privileges, or like au- 
 thority of execution or restriction ! That 
 the Legislature can annex as a condition to 
 the right to exist, a provision that a cor- 
 poration shall have its entire products at the call 
 of the municipality in any case where it may 
 assume there is a prevailing want or a great neces- 
 sity. Assuming this power, under the general 
 law of incorporation in the State of California ! 
 Annexing as a condition to an act of incorpora- 
 tion, the destructive power of appropriating the 
 whole property, to be used without compensation !
 
 45 
 
 I say that the wants of this city may swallow 
 up all the waters that this company can bring into 
 this municipality. And if this city may do it in 
 supplying what are termed the ordinary uses of 
 the municipality, then, as the counsel contends, 
 there is the authority for making such confisca- 
 tion. Why, the great park alone would swallow 
 up all the water that any company could produce 
 from this peninsula. It would swallow up all the 
 sources of water on the San Francisco peninsula. 
 And yet the city authorities can do this, accord- 
 ing to the construction of the learned counsel on 
 the other side ! Why, they are attempting to do 
 it now, by these ordinances and these resolutions. 
 The very object is to compel this corporation to 
 permit them to tap their pipes all over the city, 
 and take therefrom water for the public parks and 
 for all the ordinary purposes of the municipal 
 government. 
 
 The claim is made explicitly. They go on to 
 say, that, if they are not permitted to do this, 
 under the plea of great necessity, the trees in the 
 park will perish. And they claim that they can 
 take all the water that is necessary to preserve 
 the vegetation of the public grounds. Then they 
 can take all the waters of the reservoirs of this 
 company and sink it, day by day in the thirsty 
 and unappeasable sands of the great park ; and 
 thus deprive the corporation, by the operation 
 of law, by the very law of its creation, under 
 the exercise of this power which is claimed, of 
 every drop of water which they can produce ; 
 using the reservoirs and pipes and all the paraph- 
 ernalia of the corporation if I may use such a
 
 46 
 
 term for purposes of the character which I have 
 indicated, and all under the term, used in connec- 
 tion with public conflagrations, " other great 
 necessity ! " It seems to me that the statement of 
 these facts is sufficient to refute the theory and 
 the argument of the counsel. 
 
 The theory and argument and action goes fur- 
 ther than this. It is alleged that it is a crime 
 upon the part of any agent of a corporation to put 
 the slightest obstruction in the way of the exercise 
 of this power in the manner which we have sup- 
 
 Any candid and serious consideration of this 
 subject, it seems to me, must bring us to put a 
 definite limit upon the wild and wasteful and 
 extortionate propositions of the counsel towards 
 this company. 
 
 Now, then, it is not necessary for us to go to 
 the length of maintaining the proposition that 
 such a provision, inserted in the general corpora- 
 tion law, would be unconstitutional and void, 
 although 1 firmly believe it. But we say we may 
 appeal to this kind of considerations in attempt- 
 ing to arrive at what the Legislature meant when 
 they used this term, " in case of fire or other great 
 necessity." Did they mean to go to the length of 
 announcing that which necessarily leads to such 
 conclusions? to the length that leads to the 
 conclusion that the entire property of every cor- 
 poration in the State may be taken for public 
 uses, without compensation, and that it is crimi- 
 nal to resist the taking? Yes! and even criminal 
 to come into the courts of law and ask a decision 
 upon their rights, and determine upon questions
 
 47 
 
 so grave and important, which involve the very 
 existence of the incorporation itself ! 
 
 Why, in these cases of fire or other great ne- 
 cessity, the very corporation itself is in danger. 
 Conflagrations destroy cities. They sweep out of 
 existence a whole city in an hour. And, though 
 unforeseen as a fact, such overwhelming disaster 
 can be anticipated by the Legislature in precisely 
 such a case. Fires are extinguished by water. 
 The history of the country made the Legislature 
 to know that these conflagrations were continu- 
 ally happening and bearing away upon the winds 
 of heaven or flinging into the dust of the earth 
 all that years of industry had built up. For the 
 great public, and for the greatest good of all the 
 public, it was pre-eminently proper that this 
 provision should be inserted in a law pro- 
 viding for the incorporation of companies whose 
 business it should be to introduce water into 
 the municipalities of the State. It was a simple 
 recognition of a great and lamentable fact, 
 ever recurring in the history of the world ; and 
 they provided for it. But they could not antici- 
 pate all these other sudden great emergencies 
 some of them hardly less disastrous events; and 
 therefore they were not named ; but they are 
 placed under this phrase, " other great necessi- 
 ties." They could anticipate other great necessi- 
 ties like those similar to those which exist in 
 times of conflagration. And the Legislature in- 
 tended to provide that this corporation should, 
 in those great times of public danger, contribute 
 of its means, temporarily, to the extent of its 
 means, to save the public; but not any other
 
 48 
 
 case; not in any other event. I think it is of 
 these great necessities which I have indicated, 
 that this law speaks with the emphasis of exac- 
 tion. And I think that a simple, reasonable, ordi- 
 nary, fair, obvious interpretation, will meet this 
 case fully on the ground where the corporation 
 now places it. 
 
 Mr. Justice RHODES. And in all those cases 
 without compensation. 
 
 Mr. HOGE. Without compensation. I do not 
 expect, your Honor, to deny or to discuss the 
 proposition that the Legislature could take the 
 entire property of an incorporation in these cases 
 of great public necessity. I do not expect to 
 hedge about the proposition with any technicali- 
 ties or qualifications, because this corporation 
 has not seen fit to do so, and would not support 
 me in making any such attempt. This corpora- 
 tion has always been willing and ready to contrib- 
 ute, to the uttermost of its means, for the public 
 safety. They have not raised that question here. 
 They have not sought to make any nice discrimi- 
 nations. It has been admitted at all times, by 
 this corporation, that the Legislature had the 
 right to require that, in these times of great pub- 
 lic danger and peril, the full production from the 
 sources of water supply should be at the service 
 of those officers of the municipality who had the 
 public interests at that time in charge. Although 
 we might, indeed, say that, under some circum- 
 stances, it would be unjust although we might 
 say that there should be specific boundaries fixed 
 for the exercise of discretion in such cases. But 
 it has not been so said by this corporation. An
 
 49 
 
 entire willingness to contribute their entire pro- 
 duction, in case of fire and other great necessity, 
 has always been manifested. They recognize the 
 fact that this service of their entire property, 
 under the competent authority of the municipal- 
 ity, will be for the protection of themselves, as 
 well as for the protection of the general public. 
 They have privileges here, and they have risks, 
 for which they willingly acknowledge themselves 
 under obligations to furnish the public with the 
 means. at their command, on the occasions de- 
 scribed by the Legislature occasions of fire and 
 other great necessity. 
 
 We commend the discretion of the Legislature 
 in the general provision that, in case of fire and 
 other great necessity, such a corporation shall 
 contribute, to the full extent of its means, to the 
 protection of that public which induces their ex- 
 istence and which secures their rights. 
 
 But does it follow at all, from this, that this 
 company shall furnish unlimited amounts of water 
 for all the municipal purposes of the corporation ? 
 for all the purposes for which the government 
 of the city needs water ? That they should con- 
 tribute, to the full supply of their means, to such 
 purposes, and forever ? Not temporarily not in 
 great emergency, and as a part of the law of their 
 creation! That they should do this at all times 
 and forever! That-the city has the right to take 
 possession of their works, with a force of police, 
 under the authority of the courts, and do what 
 they please with it! to-day, to-morrow, and for- 
 ever! without compensation! without considera- 
 tion! The proposition, it seems to me, is mon-
 
 50 
 
 strous! and I repeat it, because it seems to grow 
 as an argument in the statement on every occa- 
 sion when it is turned over to the view of the 
 Court in any other than the peculiarly plausible 
 language of my friend on the other side. 
 
 Now, as a plain matter of fact, the Legislature 
 never intended any such thing. No man of sense 
 ever supposed, when he voted for such a proposi- 
 tion, that he was granting power to that extent 
 that he was voting to put the entire property of 
 the corporation into the hands of the municipality, 
 for municipal purposes of the ordinary kind, with- 
 out compensation. He could not so have voted 
 understandingly ; because then he would have 
 voted in violation of his oath to support the Con- 
 stitution in express violation of the provisions 
 of the Constitution. The Constitution takes from 
 the Legislature all power of that extreme kind, 
 and the Legislature cannot confer or delegate that 
 extremity of power which it does not itself pos- 
 sess. 
 
 I repeat: this company has never raised the 
 question of its obligation in case of fire or any 
 other great necessity, to furnish the full supply 
 of its reservoirs. And I can imagine many other 
 cases of great necessity where the demand and the 
 concession would be equally good. When they 
 arise, they will be provided for. There does not 
 exist a disposition, which counsel seems to sup- 
 pose, or would attribute, to disobey in letter or 
 in spirit the injunction of the general corporation 
 law in this particular. It is a favorite topic with 
 him, and he continually harps upon it, from the 
 bengining to the end of his argument. As though
 
 51 
 
 the corporation would, as a public enemy, defy 
 the law which said that it must supply, without 
 compensation, the city of San Francisco with its 
 streams of water in all cases of conflagration or 
 other great necessity! I think that the company 
 will be found willing in the future, as it has always 
 been, to meet this obligation. We can only judge 
 the corporation by its past history. And, judging 
 by its past, we may say: let the calamity come 
 the conflagration, or the other great necessity 
 and the city will be furnished with all the water 
 that the corporation can produce, to the utmost 
 extent of its means, for the protection of the 
 public. 
 
 Now, then, I go a little further in this proposi- 
 tion ; and if the necessary construction of this 
 provision is as the learned counsel for the city 
 contends, I ask if that constitutional provision can 
 be maintained at all ? If the necessary construc- 
 tion of the provision be as contended for by the 
 learned counsel for the city, can the law be main- 
 tained, under the constitutional section which has 
 been referred to ? Now, what is the meaning, 
 the intent and scope of that provision in the Con- 
 stitution providing that the Legislature may only 
 incorporate by general law, and not by special 
 provision ? What is the policy which dictated it ? 
 and how far does it go ? 
 
 It seems to me, surely, that it was to place all 
 private corporations, for whatever purpose of 
 trade, or commerce, or business, upon the same 
 plane, with the same powers, privileges, rights, 
 etc., and on the other hand, to submit them to 
 the same duties, obligations, and responsibilities
 
 52 
 
 to the public and to the people. Now, that has 
 been done by general law, as this Court has 
 decided, and is plainly the meaning and construc- 
 tion of the constitutional provision. This is to 
 be done by a general law under which all corpor- 
 ations, for whatever purpose they are formed, for 
 whatever business within the scope of the general 
 law permitted, they are to have the same uniform 
 powers, duties, and obligations uniform, extend- 
 ing to all corporations alike. That general law, 
 you will perceive, is to be the charter of power 
 and of privileges to all alike, with the same ex- 
 tent of power, with the same limit of obligation. 
 All are to be alike all are to have the same 
 power and are to be responsible to the same obli- 
 gations. Certainly that is the meaning, the 
 policy and the intent of that constitutional pro- 
 vision. And it seems to me that its true meaning 
 cannot be evaded by any species of outside com- 
 bative reasoning in the premises. The Constitu- 
 tion aimed at the establishment of a system of 
 incorporation, equal and uniform, by general law- 
 Was not that the object? Was not that the ob- 
 ject of this provision in our Constitution? 
 
 Everybody knows the evils, the difficulties, the 
 dangers which drove some of the new States to 
 insert this provision into their constitution ; to 
 cut off at the root all special legislation; all grant- 
 ing of special powers and special privileges to 
 particular incorporators or particular classes of 
 incorporators. It had been seen that the evil 
 extended to all alike; that the danger was funda- 
 mental, and that the remedy must be radical. 
 They wanted to establish one general system of
 
 53 
 
 corporation which should operate equally and 
 uniformly, giving the same powers and privileges, 
 and exacting the same responsibilities. And they 
 have carried out this idea in respect to all incor- 
 porations, and in every case, unless you except 
 the water corporations of this State. 
 
 Now, I should like to know, if your Honors 
 please, how far we have advanced in this constitu- 
 tional policy, object and purpose, under the guise 
 or pretense call it what you please of a general 
 law ; if the Legislature, under the guise of general 
 law, may give to every different corporation in 
 the State different powers, different privileges, 
 and subject them to different duties and different 
 obligations ? if the Legislature may burden some 
 corporations with duties and obligations, which 
 they free others from ; and may select a particular 
 class of corporations, and a particular corporation, 
 in a particular county and a particular locality? 
 and give it powers and exact from it obligations 
 and duties which do not apply to any other cor- 
 poration, or to any other class of corporations, or 
 to corporations in any other portion of the State ? 
 
 If this can be done by the law which is desig- 
 nated "general," the whole policy and object of 
 the provision, it seems to me, is defeated. Then 
 you have only got to have a series of what you 
 may please to style " general laws," which will 
 cover particular classes, and you overthrow the 
 provision of the Constitution with a palpable 
 jugglery of words and terms and provisions. 
 You are going one step farther, and having gene- 
 ral laws which provide for particular corporations! 
 How can that be ? Giving them a certain set of
 
 54 
 
 powers and privileges, and imposing upon them 
 certain obligations and duties, while another set 
 are burdened with different duties and bequeathed 
 entirely different powers and privileges and au- 
 thority. In the meantime where is your consti- 
 tutional provision ? You are supposed to give 
 these privileges and to exact these duties with a 
 uniformity that shall be evident in common sense 
 legislation and under the interpretation of the 
 Courts. But the appeal and the contest here is 
 quite to the contrary. 
 
 Under the policy suggested and contended for, 
 have you not evaded and defeated the constitu- 
 tional provision ? Have you not overthrown the 
 very letter and spirit of the constitutional provis- 
 ion for which there has been so much earnest 
 contest in all the new States where men of experi- 
 ence and sound judgment have had to do with the 
 framing of organic law ? 
 
 Municipal corporations may be created by 
 special law, and that law may be amended or 
 changed at the pleasure of the Legislature. Now, 
 here, by this little provision, the most important 
 privileges and rights and benefits are secured 
 to the cities of this State ; not by the law 
 of their creation not by any amendment to that 
 law of their creation not by their organic act, in 
 any way, shape, or form, original or amendatory, 
 but by a provision in the style of a general law of 
 incorporation, requiring a particular class of in- 
 corporations or a particular incorporation to sur- 
 render corporation property, to the full extent of 
 ownership, for all purposes of municipal govern- 
 ment, without compensation. There, you have all
 
 55 
 
 the whole thing. And that by the very law of 
 their corporate creation as a condition of the 
 existence of a private corporation that when 
 cities are concerned, when the business of muni- 
 cipalities is involved, when they are dealing with 
 cities or county governments, they shall contribute 
 to the full extent of their ownership. And this 
 is the very condition upon which they live! 
 
 Now then, may it please the Court, if this can 
 be done in this way and shape, I see no benefit in 
 that constitutional provision which demands uni- 
 formity of system in incorporations by a general 
 law; nor that other provision which provides pro- 
 tection for private property that great consti- 
 tutional guarantee which secures and protects 
 private property from the public grasp unless 
 compensation is made therefor. Both those con- 
 stitutional provisions, then, fall as dead letters. 
 
 Now, if your Honors please, I don't think the 
 Legislature ever intended that any such construc- 
 tion should be placed upon this Act. I ask your 
 Honors to hesitate long before you sanction the 
 construction given to this law by the counsel for 
 the other side that construction which is con- 
 tended for here with such earnestness and empha- 
 sis. I mean that wonderful construction which 
 would say that this expression, used in the law, 
 that all corporations incorporated for purposes of 
 supplying the city with water shall, in cases of 
 fire or other great necessity, contribute, to the full 
 extent of their means, their water that con- 
 struction which determines that this expression 
 means the entire absorbtion of the property of the 
 incorporation at the will of the officers of the
 
 56 
 
 municipality, for municipal purposes, without 
 compensation. It is contended that such is a 
 direct and legal and equitable conclusion from 
 the general law, and there is 110 half-way about it. 
 I have already said that the corporation has never 
 refused to comply with the provision in the cases 
 which are undoubtedly intended to be covered by 
 the law, although there is nothing in this case 
 which requires me to make this statement, or 
 this claim or this disclaimer. I don't present it 
 in that view; but I say that such has been the 
 history of this incorporation; and it is an answer 
 to a large share of the personal, argumentative 
 portion of the counsel's remarks. 
 
 Mr. Justice McKiNSTRY. I don't know that I 
 comprehend your argument exactly on this point. 
 You claim that under the Constitution, all cor- 
 porations formed for any purpose whatever, must 
 be endowed with precisely the same rights, and 
 have exactly the same obligations ? 
 
 Mr. HOGE. Yes, sir ; the same general rights 
 and obligations. 
 
 Mr. Judge MCKINSTRY. (Continuing.) That bur- 
 dens may not be put upon one corporation of the 
 same class which are not attached to other cor- 
 porations of the same class, formed for the same 
 general purpose. 
 
 Mr. Fox. All corporations of the same class. 
 
 Mr. Justice CROCKETT. I understand your argu- 
 ment to be that under the general law, corpora- 
 tions of this character are to be burdened with 
 certain obligations and given certain privileges, 
 and granted certain authority, in conformity with 
 a general rule ; that the general provisions which
 
 57 
 
 apply to corporations must be observed in any 
 law which is called a general law, applicable to 
 corporations of this character, with respect to uni- 
 formity of rights and obligations. 
 
 Mr. HOGE. This is precisely the argument I 
 am attempting to make under this provision. The 
 Court has decided that this corporation is amen- 
 able to the law under the Statute of 1858, which 
 is termed a general law, setting forth general re- 
 sponsibilities and rights of water corporations. 
 
 Mr. Justice CROCKETT. Well, do I understand 
 you to say that the rights and obligations in each 
 case of a corporation formed under the general 
 law must be identical ? that the rights and duties 
 of a corporation having to do with a municipality, 
 which is the creature of a special charter, shall be 
 uniform and identical with similar incorporations 
 in every instance ? 
 
 Mr. HOGE. I don't mean to say that they shall 
 be identical; but they shall be similar as far as 
 the rights and duties and obligations of a corpo- 
 ration are concerned. 
 
 Mr. Justice CROCKETT. Are there not peculiar 
 duties accompanying peculiar rights? Are there 
 not special privileges and obligations which are 
 to be attached to corporations authorized to act 
 in connection with municipal corporations in this 
 State ? 
 
 Mr. HOGE. I thought I presented the limita- 
 tions properly in the course of my argument. I 
 think the general law of incorporation for the 
 Water Companies takes in its scope all the pe- 
 culiar privileges and duties which should be
 
 58 
 
 attached to corporations of that character to 
 corporations dealing with municipalities. 
 
 Mr. Justice RHODES. It seems to me that your 
 argument, as you presented it, would go too far 
 altogether. The result of your argument, as it 
 appeared to me, would be this: that we have no 
 valid incorporations under the incorporation laws 
 of this State, if all classes of incorporations are to 
 be subjected to precisely the same conditions in 
 the way of obligations and duties, and rights and 
 privileges. 
 
 Mr. HOGE. I attempted to show that in no 
 other instance has there been an effort to annex 
 such conditions or exact such duties or inflict 
 such obligations as are contended for here. In 
 no other State in this Union, I venture to say, 
 has any such attempt been made up to this time. 
 Of course there are different provisions in relation 
 to the organization of different corporations ; cf 
 course the different character of business of dif- 
 ferent corporations will give a direct control in 
 all the details of the organization and in all the 
 minutiae of its workings ; but the general princi- 
 ples of uniformity are to be observed in the dif- 
 ferent corporations with respect to mutuality of 
 rights and privileges, and under the common 
 sense construction of the law, which deserves to 
 have the title of a general statute. In no other 
 State in the Union has there ever been an attempt 
 of this kind made, outside of the State of Califor- 
 nia, nor anywhere else, that I am aware of. Of 
 course different corporations have different forms 
 of operations; they have different sums in their 
 capital stock different modes of paying it in
 
 59 
 
 different percentages required. There is all rea- 
 sonable license and liberty in this respect under 
 the general law ; but the powers and duties and 
 rights and privileges are to be brought under the 
 text which gives uniformity of operation. 
 
 Mr. Justice RHODES. I think you will find 
 yourself very much mistaken in this proposition, 
 if T understand you correctly. But I don't think 
 it is necessary for your general argument. 
 
 Mr. HOGE. I don't think so. And I have 
 intended to make that express exception. I think 
 I could maintain this proposition. And as I have 
 said, I think it is legitimate to resort to it for the 
 purpose of reflecting on the intent and meaning of 
 the Legislature in the adoption of this provision. 
 I think it throws light upon the question as to 
 what they meant when they used the term " in 
 case of fire or other great necessity." 
 
 There is another proposition that grows out of 
 this. This a-3t of 1858 says what? It simply 
 extends and applies the provision of general law 
 of the general incorporation law of '53 and '55 
 to all corporations already formed, or hereafter to 
 be formed, for purposes of supplying any city and 
 county, or city or town, or the inhabitants, with 
 water; enabling them to sue or be sued; putting 
 the burden upon them that attaches to any other 
 corporation with respect to certain supplies, in 
 the language which I have so often quoted. 
 
 Mr. Justice CROCKETT. It is about the hour of 
 adjournment, It would scarcely be worth while 
 for you to take up any other point. 
 
 Mr. HOGE. To what time will the Court ad- 
 journ ?
 
 60 
 
 Mr. Justice CROCKETT. The Court will adjourn 
 until to-morrow morning. [After consultation.] 
 
 Mr. HOGE. I should prefer to have the case go 
 over until Monday morning. 
 
 [The Court adjourned until the following Satur- 
 day morning.] 
 
 Continuation of Argument of J. P. Hoge. 
 
 MAY 14, 1877. 
 
 After Mr. JOHN F. SWIFT had presented an addi- 
 tional point [see Appendix A], Mr. HOGE con- 
 tinued, as follows: 
 
 Mr. HOGE. There is nothing new in the point 
 presented. It is a mere amplification of what was 
 discussed before you for a long time in the course 
 of the gentleman's argument. I do not expect at 
 present to say anything upon that subject. 
 
 Thus far in the discussion I have confined my- 
 self to what I suppose to be the questions that 
 are common to all these cases involved in all of 
 them. 
 
 What I shall have to say to-day will be mainly 
 applicable to the case of the appeal from the de- 
 cision of the Fifteenth District Court in the 
 mandamus case.
 
 61 
 
 But before I proceed to offer what T have to 
 say on that case, there are one or two other mat- 
 ters bearing upon the general questions involved, 
 which I propose to notice. 
 
 The learned counsel for the city, in discussing 
 the fourth point, in his elaborate brief, on page 
 43, contends that the Spring Valley Water Com- 
 pany is bound as the successor of the San Fran- 
 cisco Water Works Company, under the provisions 
 of Order Number 46. to furnish the city with 
 water for all municipal purposes, except the 
 sprinkling of streets. And that the water charged 
 for in Demand Number 895 which is the demand 
 referred to in the mandamus case was furnished 
 within that duty. And that the company, while 
 holding the property of the city, is estopped 
 from alleging the unconstitutionally of the or- 
 der, or from denying its validity. 
 
 And, in the course of his argument, the counsel 
 seemed to rely on the idea that this ordinance 
 was a contract still in existence and governing 
 the rights of the parties. Out of that ordinance 
 it would be difficult to extract any indications of 
 a contract between the city and county and a cor- 
 poration. 
 
 The ordinance or document is an attempt, as 
 your Honors will see by reading it, on the part 
 of the city, to grant certain privileges and rights 
 and franchises to an existing corporation, to bring, 
 water into the city and through its streets, sub- 
 jecting the corporation to onerous duties, and 
 giving them certain benefits, privileges, and fran 
 chises different from those of any other corpora- 
 tion.
 
 62 
 
 So far from giving any right of property, as the 
 counsel contends, the ordinance most carefully 
 guards against any surrender of any claims upon 
 the part of the city and the part of the company, 
 leaving them precisely as they were before. 
 
 The ^authorities of the city knew, of course, 
 that this ordinance exceeded their powers; that 
 they had no power to pass such an ordinance with 
 such peculiar provisions in relation to corpora- 
 tions. They therefore go to the Legislature for 
 its approval. And this ordinance received what- 
 ever validity it may have had, if it ever had any, 
 from the Act of the Legislature alone. And as 
 the necessary result of the decision of this Court 
 in the 48th California, this was an exercise of 
 legislative power within the prohibition of that 
 provision of the Constitution on which your 
 Honors passed in that case. And therefore the 
 counsel, in his sworn answer as well as in his 
 argument and unprinted brief, assumes that the 
 provisions of the ordinance were unconstitutional 
 and void within that decision. And to avoid the 
 effect of that he takes the ground that this was a 
 contract unaffected by these provisions, and that 
 the city is the owner of the property. And when 
 one of your Honors asked him what inference he 
 would draw from that proposition supposing the 
 city to be the owner his reply was: the company 
 cannot charge us for water while in possession of 
 our property. 
 
 Now assuming that the learned counsel was 
 right in his construction of that ordinance, I do 
 not apprehend that any such consequences would 
 follow from it, not by any manner of means.
 
 63 
 
 The city has the right, according to the theory 
 of the counsel, to take all the water she wishes for 
 all her municipal purposes, because she alleges 
 that the company is in possession of certain prop- 
 erty of hers, and that therefore she may go to all 
 the water sources of this corporation for supplies 
 at her pleasure, and to any extent and for any 
 purpose whatever. That is the corollary of his 
 proposition : that the city owns this property 
 and that the company is in possession of it, and 
 therefore they have the right to go to all the, 
 sources of this company and take at their pleasure 
 for all the municipal purposes of the city. 
 
 Now then, if this corporation is in possession 
 of any property belonging to the City of San 
 Francisco, it seems to me that her remedy would 
 be v^ery different of a very different character 
 from that which counsel supposes. The city 
 would derive no right from that fact if it is called 
 a fact to take the water as indicated for all muni- 
 cipal purposes, by no manner of means. 
 
 Nor is the proposition aided, or put in any bet- 
 ter condition, if we were to admit that the original 
 character of that Ordinance 46 was just what 
 he claims for it. It would not help his argument 
 or position. 
 
 The City of San Francisco is the mere creature 
 of the State government. It is an instrument of 
 the State government; it is an arm of the State 
 government; all its powers, all its duties, all its 
 privileges as a public body, are within the control 
 and disposition of the State Legislature ; en- 
 tirely so.
 
 64 
 
 The State, by express legislative provision, 
 relieved the old City Water Works from these 
 burdensome provisions of this ordinance, long 
 before the Spring Valley Water Co. had anything 
 to do with it or with its property ; years before. 
 That legislation, as already decided, placed the 
 Spring Valley Water Co. and the City Water Works 
 Co. on precisely the same plane, with reference 
 to their rights. It has been decided that the 
 rights of either or both of them, are to be looked 
 for and ascertained in the provisions of the Act 
 of 1858, and nowhere else. That was the direct 
 decision of this Court, which disposes of the 
 operation of Ordinance 46, with reference to 
 these issues, in every way, and lays them entirely 
 out of. the case. It has been held, that no duties 
 rested on the Spring Valley Water Co. in conse- 
 quence of that ordinance. So it is very strange 
 reasoning on the part of counsel, to attempt to 
 show that the Spring Valley Water Co., when it 
 undertook to buy the property of the City Water 
 Works Co., thereby bound itself to carry out all 
 the contracts that had been, at one time or another, 
 made by the City Water Works Co., or that its 
 individual rights were affected in any way by the 
 provisions and condition and position of the City 
 Water Works Co. subsequent to its organization. 
 
 In point of fact, this ordinance question does 
 not arise at all in the mandamus case involving 
 the $92,000; it is not set up in the pleadings in 
 any way whatever. There is not a word about the 
 City Water Works in all the pleadings in the man- 
 damus case ; nor is there a single word to show 
 that the claim for which that proceeding was had,
 
 65 
 
 had anything to do with the position of the old 
 City Water Works Company whatsoever, or with 
 its relation to the water supply, in any way what- 
 ever. 
 
 Now, in the course of this argument, the learned 
 counsel has advanced a great many propositions 
 that seem to me to be very novel. And not the 
 least novel of them all, is one which I am about 
 to mention. I think he is entitled to the claim of 
 originality certainly, to the extent to which this 
 proposition goes however opinions might differ 
 as to the soundness of the proposition, or whether 
 it was applicable at all to the case in hand. 
 
 One of these propositions of the counsel is, that 
 the city and county has no power to buy water 
 for its ordinary municipal purposes, for its indis- 
 pensable necessities, and can only get it free ; 
 tracing its right to get it without compensation, to 
 a provision of the 4th Section of the Act of 1858. 
 And that, as a corollary from that proposition, 
 the Board of Supervisors had no authority, no 
 power to allow or order paid the amount which is 
 the subject of this proceeding by mandamus; and 
 that all acts in regard to the petitioners' claim 
 the judgment and decision of the Board, and the 
 appeal was absolutely void; and that the Auditor 
 is at liberty, and has the legal right to disregard 
 all this action of the Board, and may refuse to 
 obey their decision; and may avail himself of 
 that defence in this proceeding. Now, I state the 
 position and argument of the counsel, as broad as 
 he makes it. That, I understand to be the propo- 
 sition. This is the proposition which lies at the 
 very foundation of his argument, and which he
 
 66 
 
 has attempted to maintain throughout all the 
 stages of this discussion. 
 
 Now, that argument seemed to be based, if I 
 understand it, upon this proposition: that this city 
 government can exercise no power, except what 
 is specifically granted in words and figures; that 
 you must lay your finger upon the precise pro- 
 vision in the Consolidation Act in order to entitle 
 the city government to exercise any power. 
 
 Now, I have always understood the rule to be 
 just the reverse: that they might exercise all 
 powers incidental to and necessary to the carry- 
 ing out of the powers granted, or which are essen- 
 tial to the objects and purposes of its existence; 
 that they may make contracts and may do things 
 within their legitimate legislative power. I sup- 
 pose that these propositions are very well settled 
 by authority; and it is not necessary to specify 
 or read any cases on that. Some of the cases are 
 cited in the brief. 
 
 The Board of Supervisors are the governing 
 power of this city and county. The State gov- 
 ernment, by express legislative provision, has put 
 into the hands of the Board of Supervisors powers 
 judicial, executive, legislative, and, in a general 
 sense, financial for the general government of the 
 city for the general welfare of the people of this 
 city and county. All these powers are vested in 
 a Board of Supervisors, by the Legislature of this 
 State. This Board has control and regulating 
 power over all the various departments of the 
 city government. It has the power to make con- 
 tracts, to incur expenditures, to pay bills, to 
 entertain appeals from the reductions by the
 
 67 
 
 Auditor, etc.; in fact, it has all the powers and 
 duties which go to make up a great city govern- 
 ment, all vested in the Board of Supervisorsall 
 the powers necessary to and essential to the 
 objects and purposes of a city government, and 
 which are the very essence of such a government. 
 All this is within the meaning of the phrase that 
 is used a city government; an arm of the State 
 government, authorized duly by the Legislature 
 to exercise all needed control and management of 
 the affairs of the municipality, such as are una- 
 voidably connected with the rule in a gre.it city. 
 
 And under such circumstances, the proposition 
 that this city has no power to buy any water for 
 its indispensable purposes for those purposes 
 which are essential to the carrying out of its opera- 
 tions, seems to me to be a very startling proposi- 
 tion, if not a monstrous idea; a proposition, the 
 very statement of which is sufficient to refute it. 
 The very foundation idea of a city government 
 would seem to have been reversed in the argu- 
 ment of the counsel. The practice of the city 
 government from, the very beginning, is against 
 such an idea. 
 
 The very provisions in the Act of its creation, 
 looking to the thousand purposes for which these 
 municipal officers have to act as governors of the 
 city the supplies which are absolutely necessary 
 to carrying on the operations of the government, 
 and to carry out the express powers which are 
 given to the municipality seems to me to put 
 such a question as this at rest forever. 
 
 The very first section of the Act that estab- 
 lished a city government the very first section
 
 68 
 
 gives the city power to purchase, receive, hold, 
 and enjoy any personal property; to sell and con- 
 vey and mortgage, and dispose of the same for 
 the common benefit. This is essential to the very 
 existence of the municipality as a government; 
 it is essential to the carrying on of its very objects 
 and purposes; to the protection of its people; to 
 guarding the general welfare, and to the admin- 
 istering of its affairs. Why, all these powers are 
 absolutely essential; they belong to the city in 
 very virtue of its name; they are vested there 
 vested in the legislative body which, by the pro- 
 visions of the State law, is created vested there 
 as necessary to satisfactory government of this 
 large portion of the people of the State. This 
 body is endowed with all the powers the State 
 can give it, to attend to the safety, happiness and 
 protection of the community under its govern- 
 ment. That is, all the powers that are properly 
 to be derived from a general legislative enactment 
 for such a purpose. But, according to this theory 
 of the learned counsel, the city government would 
 be unable to carry out the objects and purposes 
 for which the government was established, and 
 would be paralyzed at the very outset and begin- 
 ning of its administration. 
 
 I do not suppose that the Legislature ever 
 dreamt that in these provisions of the law they were 
 stultifying themselves; and the very Acts in rela- 
 tion to these water supplies which we have been 
 considering during the whole course of this argu- 
 ment, would show that such an idea was never 
 extant. These Acts, of course, we will have occa- 
 sion to look into presently.
 
 69 
 
 But the counsel did not stop even with that 
 proposition: that the city had no power to buy 
 water for its municipal purposes. 
 
 He goes on to say that this corporation has no 
 right to sell water! That its powers are confined 
 to the furnishing of the inhabitants, and not the 
 city, with water; that it can only sell to the in- 
 habitants of the city for family uses, and can get 
 no compensation from any others! That the law 
 dedicates this property to public uses; all that is 
 over and above what is necessary for the supply 
 of family uses the city may take for its own use! 
 Now, that was the length and breadth of his 
 proposition. 
 
 Now this corporation, may it please your Hon- 
 ors, has all the powers and privileges, and is sub- 
 ject to the duties and obligations placed upon it 
 by the Acts of 1853 and 1855, as applied to it by 
 the Act of 1858. 
 
 No laws establish what provisions those Acts 
 present. I have extracts of them here, to save 
 time otherwise consumed in reading from the 
 original text. 
 
 The first section of the Act of 1858, under 
 which this corporation was incorporated, extends 
 the provisions of the Act of 1853 the general 
 incorporation law to all incorporations already 
 or hereafter to be formed for the purposes of sup- 
 plying any city and county, or any city or town 
 in this State, or the inhabitants thereof, with 
 pure, fresh water. 
 
 The proviso to the 2d section enacts that all 
 reservoirs, etc., etc., of these corporations thus 
 formed in California, shall be used exclusively for
 
 70 
 
 the purpose of supply any city or county, or any 
 cities or towns of the inhabitants of this State, or 
 the inhabitants thereof, with pure, fresh water. 
 
 The 3d section relates directly to the introduc- 
 tion of fresh water into the City and County of 
 San Francisco. 
 
 And the 4th section required them to furnish 
 the city and county water, in cases of fire, free of 
 charge, etc. 
 
 And the 5th section gives them the right to use 
 the streets of the city, under the directions of the 
 Board of Supervisors. 
 
 So, then, it clearly appears, by the very terms 
 of the law and of the charter of the company 
 itself for the law is the charter that they be- 
 came bound to do what? To supply water, to be 
 used by the corporate authorities as well as by 
 private consumers. And if so, then of necessity, 
 and by law, a reciprocal obligation arises, on the 
 part of the city, to pay for all water thus con- 
 sumed, except for the purposes of fire, or other 
 great necessity; which last clause relieved the city 
 from the necessity of paying for water for such 
 purposes. 
 
 If the proposition of the counsel is correct, then 
 the City and County of San Francisco is the only 
 community in this State which is denied this 
 essential power; because all other communities 
 possess the power under the provision of the 
 Political Code. And I suppose the City and 
 County of San Francisco has the duties, and is 
 liable to the same limitations of power that attach 
 to any other community in the State, except 
 where there may be different provisions in the 
 Consolidation Act which are still left in force.
 
 71 
 
 Now, this company was incorporated under 
 these laws of 1853 and '5 as applied by the Act 
 of 1858, as is admitted. And it has all the powers 
 and rights that the law gives it. 
 
 The counsel seemed to contend that the certi- 
 cate of incorporation limited it. 
 
 The certificate is not here in the record. And 
 the pleadings say that the company was incorpo- 
 rated under these Acts, and was endowed with all 
 the rights and power furnished by these Acts. 
 But if it is not so, it don't make any difference 
 whatever, if it does not so appear in that form ; 
 because the powers are from the law, and not from 
 the certificate. 
 
 Mr. SWIFT. The certificate shows the purposes 
 for which they organized. 
 
 Mr. HOGE. They organized under that law, for 
 the purposes which that law designates, and have 
 all the powers given by that law, and are liable to 
 all duties under that law. 
 
 The CHIEF JUSTICE. 1 understand that the 
 certificate is not in the record. 
 Mr. HOGE. No, sir. 
 
 Mr. Fox. It is set forth in one of the briefs in 
 the former case. 
 
 Mr. SWIFT. You allege it. 
 Mr. HOGE. The company was organized with 
 all the authority and all the obligations which the 
 law prescribes. If the counsel were right in his 
 proposition, it would withdraw us from the oper- 
 ation of this provision in the Act itself, which 
 prescribes that, for certain purposes, the company 
 should furnish water free of charge. Because, 
 according to his reasoning, they could not- at one
 
 72 
 
 time they could not charge the city at all for any 
 purpose whatever. Directly to the contrary is 
 the provision of the law that was inserted indus- 
 triously, which relieves the city from some 
 charges in certain specified instances. Otherwise 
 the city would be in the same position with any 
 other consumer of water within the corporation. 
 But the law provides that they shall not pay for 
 it when used for fire or other great necessity. I 
 shall have occasion to refer to that law presently 
 on another proposition of the counsel. 
 
 In connection with this proposition the counsel 
 has made or assumed another one and attempted 
 to sustain it by a great number of authorities 
 on the subject of tolls. The proposition, if I 
 understand him, is this: that the Spring Valley 
 Water Company cannot recover from the city, 
 because no rates have been fixed, in pursuance of 
 the provisions of law upon which he relies. The 
 Company cannot charge either the city or any 
 body else for the argument goes that length 
 until the rates are fixed. And he claims that the 
 Company is bound to cause these rates to be 
 fixed, before they have any power to charge any- 
 thing. And as a corollary from this proposition, 
 he derives the result that the city has the right, 
 in all time, to take this property and use it at its 
 pleasure, without compensation ; that, I under- 
 stand to be the proposition. 
 
 Now, if your Honors please, it seems to me suf- 
 ficiently apparent, upon an examination of this 
 statute, that these authorities have n't the slight- 
 est application whatever these authorities which 
 the gentleman has cited have n't the slighest
 
 73 
 
 application or bearing on the real question; these 
 authorities are in relation to the grant of fran- 
 chises, to take toll, etc. Now, then, the power to 
 charge for water does not come from, and is not 
 based upon, this clause in the Act at all this 
 clause in relation to rates. 
 
 The Act of 1853 this Act,' which the Act of 
 1858 applies to this corporation, in its 4th Section 
 gives the power to the corporation. 
 
 The 1st Section reads as follows (reading): 
 
 " Corporations for manufacturing, mining, me- 
 chanical or chemical purposes, or for the purposes 
 of engaging in any species of trade or commerce, 
 foreign or domestic, may be formed according to 
 the provisions of this Act; such corporations, and 
 the members thereof, being subject to all the con- 
 ditions and liabilities herein imposed, and to none 
 others. 1 ' 
 
 The 1st Section of the Act of 1858 reads as 
 follows (reading) : 
 
 " The provisions of an Act entitled an Act to 
 provide for the formation of corporations for 
 certain purposes, passed April fourteenth, one 
 thousand eight hundred and fifty-three, and the 
 provisions of an Act entitled an Act to amend an 
 Act entitled an Act to provide for the formation 
 of corporations for certain purposes, passed April 
 fourteenth, one thousand eight hundred and fifty- 
 three, and passed on the thirtieth (30th) day of 
 April, one thousand eight hundred and fifty-five, 
 shall extend to and apply to all corporations 
 already formed, or hereafter to be formed, under 
 said Acts, for the purpose of supplying any city 
 and county, or any other cities and towns in this 
 State, or the inhabitants thereof, with pure, fresh 
 water."
 
 The 2d Section of the Act of 1858 reads as fol- 
 lows : 
 
 ''Any company incorporated for the purpose 8 
 specified in the preceding section, shall have the 
 right to purchase, or to appropriate and take pos- 
 session of, and use and hold, all such lands and 
 waters as may be required for the purposes of the 
 company, upon making compensation therefor. 
 The mode of proceeding to appropriate and take 
 possession of such lands and waters, when the 
 parties cannot agree upon a purchase thereof, 
 shall be the same as prescribed in sections twenty- 
 seven, twenty-eight, and twenty-nine, of an act to 
 provide for the incorporating of railroad com- 
 panies, passed April twenty-second, one thousand 
 eight hundred and fifty-three, except that such 
 proceedings shall be had before the county judge 
 of the county in which such lands or waters, 
 or both, may be situated ; provided, that all reser- 
 voirs, canals, ditches, pipes, aqueducts, and all 
 conduits heretofore built, or that hereafter may 
 be constructed by any corporation formed under 
 this Act, or claiming the privileges, rights, and 
 immunities herein granted, or any of them, shall 
 be used exclusively for the purpose of supplying 
 any city and county, or any cities or towns, in 
 this State, or the inhabitants thereof, with pure, 
 fresh water." 
 
 Here is a provision which has already been the 
 subject of decision by this Court. Here is the 
 power to purchase, hold, sell and convey such 
 real and personal estate as the purposes of the 
 corporation shall require. 
 
 In the case of the Miners' Ditch Co. vs. Zeller- 
 bach, in the 37th Cal.: in the case of Martin vs. 
 Zellerbach, 38th Cal., I think these questions 
 all came up, and were all discussed. As to the
 
 75 
 
 power of a corporation, given under these Acts, 
 to sell its entire property, to dispose of its entire 
 property; rendering it really impossible for it 
 to carry on its operation. And the Court sus- 
 tains the power. The Court say they have the 
 power to dispose of their entire property. 
 
 Now, the powers of this Water Company come 
 from the Act of 1853; not from this clause in 
 relation to rates not by any manner of means. 
 
 They have the right to dis.pose of any property 
 which they acquire. They have the right to 
 acquire any property which their purposes de- 
 mand, and they have the right to dispose of it. 
 They have the right to obtain and hold, and sell 
 and dispose of. It is not a grant of title at all; 
 it is a corporation selling its property. 
 
 And hence the argument of counsel, in this 
 particular, is inapplicable. 
 
 The argument of counsel in order to apply 
 his cases with reference to tolls assumes that 
 water isn't a subject of property at all. He 
 assumes that if it were- oil, or any other species 
 of property, the rule would be different, and that 
 the company would have the right to dispose of it. 
 
 The Act of 1858 requires that the company 
 should furnish water, at reasonable rater, to the 
 citizens of the city; and shall furnish water to 
 the city, under certain circumstances, free. 
 
 In order, then, to give the government of 'the 
 city the power to say that these rates are rea- 
 sonable to compel them to be reasonable the 
 Act gives this power through a certain proceed- 
 ing. A commission may be appointed to ascer- 
 tain these rates. This is for the public protection.
 
 76 
 
 It is not a limitation upon the right of the com- 
 pany to sell that which it can sell, at all events. 
 But it is to compel the company to. charge reason- 
 able rates. 
 
 The initiatory steps in the exercise and applica- 
 tion of that power must come from the city govern- 
 ment, and not from the corporation Board. And 
 it would be difficult to find out from this irregu- 
 larity, that the -city was entitled to take the water 
 for nothing, because no rates had been fixed by 
 the authorities under this provision of the law. 
 And yet it is assumed that there is such an irreg- 
 ularity. Yet she may take and use this water, 
 and refuse to pay for it. Because she has initiated 
 no proceedings which would give her any right 
 for the protection of the people, to insure reason- 
 able rates; because she has never taken the initia- 
 tive in the formation of a commission for the fix- 
 ing of such rates, so that the company may be 
 restrained within reasonable limits; the right of 
 the city to have water for all municipal purposes 
 is assumed and argued! I say it is preposterous 
 to assume that this entitles the city to take the 
 water at her pleasure, and then refuse to pay for 
 it. These rates are for the inhabitants of the city 
 and not the city. The power to charge for the 
 water does not come under this provision ; but it 
 is a provision giving authority, on certain pro- 
 ceedings, to ascertain that the rates charged the 
 inhabitants are reasonable. 
 
 It is organic in the creation of this Company 
 the right to acquire property and hold it. and 
 dispose of it. The only limitation is that the 
 Company shall not charge unreasonable rates to
 
 77 
 
 the inhabitants of the city and county. In order 
 to secure all needed protection to the public, that 
 provision is inserted, and the city has not seen fit- 
 to exercise that power. 
 
 The counsel has been continually talking, dur- 
 ing the course of his argument, and has even 
 assumed it as an admitted fact, that these charges 
 were outrageous. I don't think the counsel knew 
 what he was talking about when he alleged that 
 these charges were outrageous. 
 
 Mr. SWIFT. It is so charged in the answer, and 
 admitted by the demurrer. 
 
 Mr. HOGE. No, sir; no, sir; there is no demur- 
 rer in any case except in the mandamus proceed- 
 ings; and there the demurrer is, that the facts 
 are not sufficient to constitute a defence. This is 
 based upon the idea that the Board of Super- 
 visors, in their final decision, were the only power 
 that passed upon that account, and that they had 
 passed upon that account; there is no admission 
 of that sort, not in any sense ; the counsel can 't 
 show it. There is no admission that the charges 
 were outrageous and excessive. 
 
 Does the counsel know what the charges are ; 
 I believe that the charges are based upon the 
 estimate of ten to fifteen cents per thousand gal- 
 lons. That must be the price which the counsel 
 denounces as outrageous and excessive, if he sticks 
 by the reference in the record. The bill was 
 made upon that basis. Water is charged to the 
 city for municipal purposes, at the rate of ten to 
 fifteen cents per one thousand gallons ; while the 
 rate to a private consumer would be about a dol- 
 lar, I believe.
 
 78 
 
 The counsel don't seem to understand what is 
 the function of a demurrer at all. I shall not 
 waste time to enlighten him on that point. It is 
 sufficient to say we have admitted nothing of the 
 kind; that his constant assertions that we have 
 admitted that our charges are outrageous and ex- 
 cessive are not founded upon the record or the 
 fact. 
 
 In point of fact, these rates, as authorized to 
 be fixed in this law, are for the inhabitants, and 
 not for the city at all. The agreement of the 
 city to take water, implied or expressed, is suffi- 
 cient for our purposes. She takes the water, and 
 then she agrees to a fixed price which she is will- 
 ing to pay. It is very clear that these rates never 
 were intended to be applied to the city. They 
 would have no kind of application. The city is 
 to take water in immense quantities, and the rule 
 requiring the authorities to fix certain rates for 
 private citizens, for family uses, would have no 
 application whatever to the demands of the city 
 for water for her great purposes. This view is 
 manifest on its face. 
 
 Everybody knows, who has ever made any 
 inquiry on the subject, that no water corporation 
 charges a city at the same rate which she charges 
 private parties for family use. There is no kind 
 of analogy between the rates. The corporation 
 charges little or nothing for the thousands of 
 gallons necessary for the operations of a city. 
 The operations of a family, for family use, are 
 relatively small, and the tariff is based on an en- 
 tirely different theory.
 
 79 
 
 Mr. SWIFT. The theory is, to get all that you 
 can. 
 
 Mr. HOGE. Well, now, Mr. Swift, you have had 
 the opportunity of talking here two or three days, 
 and I will be obliged to you, if you will permit 
 me to proceed with my argument without further 
 interruption. 
 
 Mr. SWIFT. I will not interrupt you again. 
 Mr. HOGE. You can interrupt me at any time, 
 Mr. Swift, in regard to any matter where you need 
 information, and if I have it, I will give it to you. 
 Mr. SWIFT. I beg your pardon, Colonel, I will 
 not interrupt you again. 
 
 Mr. HOGE. (After a pause.) Besides, it aint 
 true. It is not the fact. Counsel is eternally 
 indulging in this kind of charge and abuse, which 
 is based on nothing but his own imagination. 
 
 He admits that if this property was like oil or 
 goods, the rule would be different. I believe I 
 have taken down his very words: 
 
 " If it were oil, or wine, or goods, if it were 
 merchandise, they would have a right to charge." 
 Then the rule would be different. 
 
 I had supposed that the property interest of 
 the corporation in this water was quite as perfect 
 as if it were oil, or wine, or goods. It is the 
 very property which the law authorized the cor- 
 poration to acquire and sell. That is, under the 
 very law of its creation. There is not a word in 
 it about tolls, and his authorities have no applica- 
 tion to the proposition in hand. 
 
 The grant of franchises for tolls is, of course, 
 controlled by the language of the grant. The
 
 80 
 
 toll is to be applied to the very things which the 
 law authorized the toll to be charged for. What 
 has that to do with the operations of the corpora- 
 tion in buying and selling its property ? It has 
 the same right to go into the market and sell its 
 property, unless restrained by the operations of 
 the provisions of the law, that any private owner 
 of property has. It occupies no different position 
 from any private owner of property. It is a con- 
 centration of private wealth in a particular form, 
 to carry on a particular business, with full powers 
 of acquisition and disposition, with reference to 
 the purposes for which it was formed. 
 
 Now, if your Honors please, I propose to say 
 what I have to say upon this mandamus case. 
 
 Now, what are the facts upon which these ques- 
 tions here involved in the mandamus case arise, 
 and what were the provisions of the statute bear- 
 ing upon it ? I think, if your Honors please, it 
 will be found, on examination, that the decision 
 of this Court heretofore very often made, involv- 
 ing the power of the Board of Supervisors, and 
 the effect of their action upon the questions over 
 which they have jurisdiction, apply with ten-fold 
 force to the facts of this case we have now in 
 hand, and to the provisions of the Consolidation 
 Act itself that Act which created the Board of 
 Supervisors a special tribunal, with powers to pass 
 finally and judicially upon all claims against the 
 -city and county, and which rendered the decision 
 of the Board binding and conclusive upon all the 
 officers of the city and county government. 
 
 It is not disputed, and could not be disputed, 
 that the Board had jurisdiction, judicially, over
 
 81 
 
 every claim against the city and county; the 
 express provisions of the Consolidation Act give 
 them that power. 
 
 This proceeding was simply a mandamus, say- 
 ing, or directing, that the Auditor be required to 
 make certain entries in his book, as a result of a 
 certain decision of the Board of Supervisors, over 
 a matter with regard to which the Board had 
 entire and full jurisdiction. 
 
 Now, the answer of the Auditor proceeds upon 
 the theory that he has power of review over the 
 decision arid final action of the Board of Super- 
 visors, in relation to claims against the city and 
 county; that, although the Board may allow and 
 order paid a claim, he may refuse to act, because 
 he may be of the opinion that the Board acted in 
 insufficient evidence that the Board decided 
 wrongly in the exercise of their powers, though 
 the action was upon final review by them on an 
 appeal. His theory is that their decision does 
 not bind him at all that he is at liberty to go 
 behind it. Now, that is their proposition and 
 their entire answer. 
 
 According to our theory of the Consolidation 
 Act and its provisions, the Board of Supervisors 
 is a governing body of the last resort, with re- 
 spect to every matter pertaining to the city's 
 interest; and after the proceedings shall have 
 been had, as in this case, the action of the Board, 
 under the powers given it, is conclusive, and no 
 authority is given by the provisions of the Act to 
 any subordinate officer to review the action of 
 the Board of Supervisors upon matters within 
 their jurisdiction after the final appeal.
 
 82 
 
 Now then, Article 5, of Section 70, of the 
 Consolidation Act I will give your Honors the 
 substance of these sections, without reading 
 them gives the Board the power to hear and 
 determine appeals over the executive officers of 
 the city and county, in the cases provided for in 
 the Act. But in all cases of appeal taken to the 
 Board of Supervisors, from the order or decision 
 made by any other officer or officers, such officer 
 shall furnish the Board of Supervisors with a 
 statement of the reasons for the order or decision 
 appealed from; and the party appealing shall 
 also be heard briefly, and without the observing 
 of any technical rules or other formalities, before 
 the Board of Supervisors, in answer to the officer 
 rejecting any claim, in regard to the justice of 
 the decision. The Board shall endeavor to ascer- 
 tain the true state of the case, by inquiry, with- 
 out delay, and shall then finally determine upon 
 the matter. 
 
 This section, then, if your Honors please, evi- 
 dently intends to give the Board the power of 
 official decision, without reference to any formal- 
 ities or technicalities, such as would be observed 
 in a Court of justice. It gives to the Board a 
 power of official review of the decision in any 
 case, of any officers of the city, on a claim passing 
 through these channels. 
 
 But it. does not stop at that. The 92d Section 
 provides that if any person feel aggrieved by the 
 decision of the Auditor, or other officer, in the 
 rejection or refusal to approve or allow any de- 
 mand upon the treasury, presented by such 
 person, he may appeal and have the same passed
 
 83 
 
 upon by the Board, whose decision thereon shall 
 be final. Arid if the Board approve and allow, 
 the demand due shall afterwards be presented to 
 the Auditor, and entered in a proper book, in like 
 manner as every demand allowed by law; and a 
 corresponding endorsement must be made upon 
 every claim or bill by the Auditor, in due form, 
 before it can be paid. This must be done, before 
 a claimant is in any position to pursue his legal 
 rights at all. He cannot take another step 
 towards procuring the payment of his claim until 
 this is done. 
 
 Then comes the ninety-third Section. TJiis 
 provides, that, in all such appeals, the Board of 
 Supervisors shall call to its aid the law officer of 
 the government, the District Attorney, and 
 shall require his opinion, in writing, which shall 
 be read and filed. And then on such an appeal, 
 and in all cases of approval and allowance of any 
 such demand, a vote shall by taken by ayes and 
 noes and entered upon the records. 
 
 Now, then, it seems to me that we have in this 
 section the whole scheme leading to the final 
 action of the authorities of the city government 
 upon all these questions. And these provisions 
 of the Consolidation Act cover entirely the case 
 in hand, completely and finally. 
 
 Now, then, to hold that, notwithstanding these 
 provisions of law, the Auditor can defy the Board 
 of Supervisors, and can set up his opinion against 
 that of the Board contrary to their action and 
 final decision contrary to the determination that 
 they were necessarily bound to make in the man- 
 ner prescribed they inquiring into and deciding
 
 84 
 
 all questions having relation to the claim all 
 questions of law and fact seems to me ridiculous 
 in the extreme. If that be so, then this execu- 
 tive officer has centred in himself all the powers 
 of the Board of Supervisors all the powers of the 
 city and county government. And the city gov- 
 ernment must stop and stand still, unless their 
 action coincides in all respects with the action 
 which is justified in the opinion of the Auditor of 
 the City and County of San Francisco. 
 
 Of course we have been contending all along 
 through the progress of this case that this final 
 decision of the Board of Supervisors leaves the 
 Auditor as a mere ministerial agent to carry out 
 the decision of the Board. We contend that the 
 question as to whether this or that claim should 
 be allowed, was precisely the question that was 
 submitted by the law to the final decision of the 
 Board of Supervisors. And that law provided that 
 their decision should be final and conclusive, in 
 terms. And in order to enable the Board to take 
 this action under standingly, and with due refer- 
 ence and respect to the law, they are required to 
 consult the law officer of the government and to 
 take his opinion in writing, filing it and voting 
 upon it, or upon the claim thereafter, by yeas and 
 nays. And to contend that after that a right of 
 review still remains with the Auditor, that there 
 is any room then for him to exercise an honest 
 judgment or discretion in the premises against the 
 conclusive action of the Board, so far as it is con- 
 cerned, seems to me a most extraordinary propo- 
 sition, something which amounts to a plain inno- 
 vation upon the letter of this law.
 
 85 
 
 In my judgment, the propositions here in- 
 volved are covered by the previous decisions of 
 the Court. The case of Waugh vs. Chauncey, et 
 al., 13 Cal., 11, is a case in hand. I have an ab- 
 stract of it here, if I can find it. This Court said 
 there : " The Board of Supervisors of the county 
 is a special tribunal, with mixed powers admin- 
 istrative, legislative, and judicial. A jurisdiction 
 over roads, ferries, and bridges is given to it by 
 the State. Its judgments or orders cannot be at- 
 tached collaterally an}^ more than the judgments 
 of Courts of Record." Its judgment upon mat- 
 ters committed to it is conclusive. ''Its judg- 
 ment or orders cannot be collaterally impeached; 
 whether it acted upon sufficient or insufficient 
 proof, regular or irregular, the decision is final 
 and conclusive." 
 
 And so in the case of Tilden vs. the Board of 
 Supervisors of Sacramento County, 41 Cal., p. 68. 
 There, in that case, the Board of Supervisors re- 
 jected a claim. Mr. Tilden then obtained a writ 
 of mandamus from the court below, commanding 
 the Board to allow a specified portion of the 
 claim. From this judgment the Board sought an 
 appeal. The Court held, when the Board acted 
 judicially on a claim a writ of mandate would not 
 be issued to reverse or review its judgment. 
 
 In our case the Board allowed the claim and 
 ordered it paid ; and our application was for a 
 mandamus to compel the Auditor to do his min- 
 isterial duty and make the proper entries as di- 
 rected by law. Whereas he seeks to review and 
 reverse the opinion and judgment of the Board. 
 In this other case the Board rejected the claim.
 
 86 
 
 In one case they allow it ; but in no other case 
 can the matter be investigated on mandamus. The 
 question is decided to be foreclosed. 
 
 In the case of the Truckee and Tahoe Turnpike 
 Co. vs. J. B. Campbell, 44 Gal., p. 89, the Court 
 say; "It will not be contended that the Board 
 did not possess competent authority to determine 
 whether all the requisite facts existed, and 
 whether the corporation had performed all the 
 acts necessary on its part to entitle it to the grant 
 of the right to collect tolls. The authority of the 
 Board being conceded, the question whether the 
 Board erred in its exercise cannot be raised by a 
 private person ; and, clearly, the inquiring will 
 not be entertained in a collateral proceeding." 
 
 It appears to me that these authorities are 
 directly applicable. 
 
 I am not discussing the question of total want 
 of power in the Board to allow this claim upon 
 the theory contended for here: that they are en- 
 titled to this water free of charge by the opera- 
 tion of provision of the fourth section of the Act 
 of 1858. We have already discussed that. My 
 argument is now aimed at this other proposi- 
 tion, that they cannot go behind the decision of 
 the Board of Supervisors, upon questions of fact, 
 and re-examine in matters of this kind; that they 
 cannot inquire into the regularity or irregularity 
 of the action of the Board. They cannot go be- 
 hind the action of the Board, and say that it 
 didn't do this or that which was proper; that the 
 Board did not pursue, literally, the directions of 
 the statute. We contend they cannot inquire 
 into the terms or matters for which water was
 
 87 
 
 furnished, such being matters of fact necessarily 
 before the Board and necessarily included in its 
 decision. It is to these objections that I am ad- 
 dressing this argument. I am insisting that the 
 decision of the Board of Supervisors is necessarily 
 final and conclusive as its jurisdiction over the 
 entire claim and authority to investigate into all 
 the facts connected with it; and that this must be 
 so under a necessary construction of the Act. 
 The action of the Board is conclusive upon the 
 Auditor. He has but a ministerial duty to per- 
 form. He has no power of review over the facts 
 upon which the Board acted and predicated their 
 decision. Nor has he a right of construction 
 over the law. 
 
 If the decision of the Board is subject to review, 
 the appeal must be to the courts, in the proper 
 case, and with the proper parties; but of this 
 hereafter. 
 
 The Auditor must perform his duty in the 
 premises, as I have already suggested, before the 
 claimant is in any position to enforce his rights 
 in any way. 
 
 The answer, in this case, attempts to go behind 
 this decision of the Board upon the facts. It 
 questions the reasonableness of the charges of the 
 company, and whether it had furnished the water 
 as charged. And this is a part of counsel's argu- 
 ment that the charges were excessive. Was not 
 that a question of fact to be submitted to the 
 Board of Supervisors on which their decision is 
 conclusive? The very facts upon which they 
 were passing, embraced all these questions, or 
 affected them had reference to them; and the
 
 88 
 
 whole thing was conclusively decided by the final 
 action of the Board proving and allowing the 
 claim which was brought up to them on appeal. 
 These are the very facts, I say, upon which the 
 Board acted when they passed upon the account 
 originally; and then it is brought up again on 
 appeal from the Auditor's decision. 
 
 The question of the power which they have 
 attempted to raise in relation to the 4th Section, 
 I have already discussed. I do not propose to 
 discuss it any further. 
 
 The answer admits the fact that all this water 
 for which the account was entered and claimed 
 was furnished, but avoids it, or attempts to avoid 
 it, because, as they say in the answer, the com- 
 pany was bound to furnish water to the city free 
 of charge. Upon this question, also, the Board of 
 Supervisors passed. 
 
 The answer enumerates several purposes to 
 which the city applied the water; but contends 
 that the company was bound to furnish it free, 
 under the provision of the 4th Section of the Act 
 referred to, which provision requires them to fur- 
 nish water for fires, and in case of other great 
 necessity. And that is the only provision they do 
 advance. The whole theory before the Auditor 
 was, that this water was bound to be furnished 
 free ; that the city ought to have it of right, with- 
 out compensation. And upon that theory, the 
 Auditor said: the Board exceeded its power and 
 allowed an amount which they had no right to 
 grant. It is a question of power based on that 
 ground, and on that alone; that this was free 
 water, and could not be charged for; and, there-
 
 fore, the Board exceeded its powers in passing the 
 account allowing the account for water which 
 belonged to the city, as the counsel contends. 
 
 It is attempted to raise another proposition, 
 and complicate the matter by asserting that the 
 Treasurer could not act and pay this claim for 
 precisely the same reason; that the Treasurer 
 would raise the same point and had the right to 
 do so ; that the Treasurer was not bound by the 
 decision of the Board on appeal. By the express 
 language of the Consolidation Acts, which is still 
 binding on all the officers of the city government, 
 the final power of decision is lodged in the Board 
 of Supervisors. 
 
 I say that the Treasurer has nothing whatever 
 to do with this question. The Auditor cannot 
 defend his refusal to do his duty in this manner. 
 He cannot refuse to act in obedience to the exact 
 command of the Consolidation Act, which action 
 is necessary in order to put these parties in a 
 position to prosecute their claim. Whatever may 
 be said with reference to the Treasurer's action, it 
 does not help the Auditor in this case. It does 
 not help him to say that the Treasurer would not 
 pay us if he did this ministerial duty and made 
 the proper entries in his books. In fact the 
 Treasurer is as much bound by the decision of the 
 Board on the appeal as the Auditor. But with 
 that matter neither the Auditor nor ourselves 
 have anything now to do by way of consideration. 
 
 As a matter-of-fact we cannot take a single step 
 further towards procuring the payment of this 
 claim until the proper action of the Auditor is 
 had by way of entry upon the records of his office.
 
 90 
 
 Because it is the express language of the Consoli- 
 dation Act that this entry must be made that 
 this action must be had on the part of the Auditor 
 before the claimant will be in a position to place 
 his demand before the Treasurer at all. 
 
 One other proposition made in this case was 
 that the Board of Supervisors had repealed this 
 resolution; which I shall have something to say 
 about at the proper time, if I have an opportunity 
 of discussing it. 
 
 Mr. SWIFT. The appeal is taken from the order 
 overruling the demurrer. 
 
 Mr. HOGE. Yes, sir; Judge Dwinelle decided 
 that there was no ground of defense in the answer; 
 that the facts set up there as an answer did not 
 state a defense. The appeal is taken from that 
 order. There was a demurrer to the answer. 
 
 Mr. SWIFT. And to the complaint also. 
 
 Mr. HOGE. Yes, sir; to the complaint also. 
 Both, Though I take it that the demurrer to the 
 complaint was disposed of by the answer. 
 
 1 will not stop to go over all these authorities 
 which I have here. I think they are all cited in 
 the brief sustaining the propositions which I have 
 made; but I shall not consume the time of your 
 Honors to read them. 
 
 There was a point made in the argument of Mr. 
 Swift, for the purpose of showing that the Board 
 of Supervisors had exceeded its powers that 
 there was an item for water that was used by the 
 schools. On that I desire to say a few words. 
 
 Now, in point of fact, the pleading in this man- 
 damus case don't raise any such question at all. 
 It goes entirely upon the ground that the water
 
 91 
 
 was furnished the city for the indispensable pur- 
 poses of the municipality, under the provision of 
 the 4th Section of the Act of 1858, under which 
 the company was incorporated, and was therefore 
 to be furnished free of charge. Now, let us see 
 if that is not so ; and you Honors will find, if you 
 read this answer, that every one of these particu- 
 lar defenses is based on that theory, entirely and 
 alone. 
 
 Mr. Justice McKiNSTRY. Does the answer in 
 that case allege anything in relation to the rates? 
 
 Mr. HOGE. No, sir. 
 
 Mr. SWIFT. I beg your pardon. It says that 
 no rates have been fixed. 
 
 Mr. HOGE. I think not. 
 
 Mr. SWIFT. You are mistaken, Colonel. 
 
 Mr. HOGE. Well, I don't recollect; I don't 
 recollect that the answer says anything further 
 than to allege that the charges are excessive. 
 
 Mr. SWIFT. It says they were never fixed. It 
 says the rates were never fixed. 
 
 Mr. HOGE. Let us see. (Examining.) I don't 
 recollect that. 
 
 Mr. Justice McKiNSTRY. Perhaps it is not 
 worth while to stop and examine in regard to 
 that. I thought you could state at once. 
 
 Mr. SWIFT. It will be found on page forty-six. 
 (Reading.) 
 
 Mr. HOGE. Very well; I had forgotten that 
 that was there. 
 
 I was speaking now on the subject of this 
 charge or itemized separation of a charge for 
 schools. I have said all that I want to say on the 
 subject of rates. I don't want to repeat that.
 
 92 
 
 Now. what is alleged in respect -to this matter ? 
 (Reading.) 
 
 Here is the item, separated, amounting as they 
 say, to $13,800. That is the form in which it is 
 placed as to the school department ; and as to 
 every other purpose for which it was alleged 
 water was used, it raises the question in the same 
 way. 
 
 It is alleged that this is free water, and that 
 therefore the Board exceeded its power and right 
 in auditing this bill, because it was free water 
 not because the Board had not power to buy 
 water, but because it was free water, and that 
 therefore the Board could not buy this water. 
 
 I say that the particular purposes for which 
 the water was furnished is a matter with which 
 this petitioner has nothing to do. Our account 
 was for water furnished to the City and County 
 of San Francisco for municipal purposes, and the 
 city agreed to the charge for it, and allowed it, 
 and ordered the bill paid. It makes no difference 
 how or where it was used in the municipal gov- 
 ernment. It is a matter of entire indifference 
 how the city or its officers used this water, or 
 applied it to different municipal purposes. That 
 does not concern the company who furnished the 
 water to the city or to the city officers, or for the 
 claim of the company or the validity of the action 
 of the Board in its final decision. The company 
 did not inquire into the particular purposes for 
 which the water was used, and it was not neces- 
 sary that it should do so. This does not affect 
 the claim, nor the validity of the action of the
 
 93 
 
 Board in any respect. They had the right to 
 determine this matter, and they did determine it. 
 
 This is not a claim against the Board of Edu- 
 cation. It is not sought or attempted to inter- 
 fere with the funds of the Board of Education in 
 any way. It *is only for claims against its own 
 funds that that Board has any jurisdiction under 
 the Consolidation Act. The Board of Education 
 has nothing to do with this claim. When their 
 funds are called upon by any claim, they have a 
 right of action; they will pass upon such a claim. 
 But we have not brought them here as debtors, 
 and they have nothing to do with this question. 
 
 The city could not in the present aspect of the 
 case, raise this question. It takes the water of 
 the company and uses it. and then it allows an 
 account for it which forecloses that question in 
 regard to the matter. It seems to me that upon 
 these facts the decision of the Board is conclusive 
 and that the thing could not be brought up here 
 for question. 
 
 Why, if your Honors please, these were the 
 very facts, among others, into which the Board 
 were to inquire, and into which they did un- 
 doubtedly inquire. 
 
 Now a great deal has been said, if your Honors 
 please, in relation to this authorization No. 1132. 
 It was not published, it is said. And attention 
 was drawn to the fact that it was only for twenty- 
 three months, as is alleged; that there was a 
 variation between the appropriation, etc. 
 
 Now, if your Honors please, I think a few words 
 will put that matter in a very clear light, so that
 
 94 
 
 your Honors will be enabled to understand it 
 thoroughly and completely. 
 
 The original bill presented by this company to 
 the city was for $103,500. It was for furnishing 
 water upon the orders of the municipal authori- 
 ties for municipal purposes from the first of Feb- 
 ruary 1869, to November third, 1872, forty-six 
 months; $2250 per month, which just makes the 
 sum of $103,500. Now upon this account thus 
 presented, was based the action of the Board of 
 Supervisors in the passage of Order 1132. 
 
 The history of this account, as your Honors 
 will find it, 1 don't know whether your Honors 
 have got it or not is. in a brief filed by the City 
 Attorney on the argument of this case in the 
 Court below. 
 
 You will see from that that this account takes 
 the ordinary course of legislative business of this 
 kind. 
 
 So the Board reversed the action of the Auditor 
 and approved this account, passing it by a unani- 
 mous vote. 
 
 All these things are recited in the petition, I 
 believe, with the exception of that first vote, and 
 not denied. 
 
 Now with reference to this account, something 
 was said about section 68. One moment on that 
 subject. Let us see whether it has any applica- 
 tion or not. This is the ordinary mode of pro- 
 ceeding upon all claims presented to the Board of 
 Supervisors. And it is in direct conformity with 
 section 68 of the Consolidation Act. (Reading) : 
 Every ordinance or resolution of 
 the Board of Supervisors, providing for any specific
 
 95 
 
 improvement, the granting of any privilege, or 
 involving the lease or other appropriation of pub- 
 lic property, or the expenditures of public moneys 
 (except for less sums than five hundred dollars), 
 or laying tax or assessment, and every ordinance 
 or resolution imposing a new duty or penalty, 
 shall, after its introduction in the Board, be pub- 
 lished, with the ayes and nays, in some city daily 
 paper, at least five successive days before final 
 action by the Board upon the same; and every 
 such ordinance, after the same shall pass the 
 Board, shall, before it takes effect, be presented 
 to the President of the Board for his approval. 
 If he approves, he will sign it; if not, he shall 
 return it, within ten days, to the Board, with his 
 objections in writing. 
 
 " The Board shall then enter the objections on 
 the journal and publish them in some city news- 
 paper. If at any stated meeting thereafter two- 
 thirds of all the members elected to the Board 
 vote for such ordinance or resolution, it shall 
 then, despite the objection of the President, be- 
 come valid. Should any such ordinance or reso- 
 lution not be returned by the President within 
 ten days after he receives it, it shall become valid 
 the same as if it had received his signature." 
 
 Now this is the only publication ever required 
 by the Act. 
 
 Whenever a resolution to appropriate money 
 from the treasury is introduced, and immediately 
 upon its introduction, a vote to print is taken. 
 They might refuse to print, and reject, right then 
 and there, on the first introduction of the pro- 
 position. But if they choose they direct it to be 
 published, with the ayes and noes on the order 
 directing it to be published. After this is done 
 after this publication is had, then the matter 
 comes back and comes up for action like any
 
 96 
 
 other subject. First the publication is to be made 
 immediately upon the introduction of the claim. 
 Then it comes back for action. Then the Board 
 may pass it or reject it or amend it. No other 
 publication is required by law, nor is there ever 
 any other made in any case. 
 
 Now, what is done when the account comes 
 back? 
 
 When it conies back it is amended and passed, 
 and approved by the President of the Board of 
 Supervisors. 
 
 Now there is no other publication required of 
 the bill, and there would be no sense in requiring 
 any other publication. 
 
 The proceeding is analogous, I suppose, to our 
 our ordinary legislation in State Legislatures. 
 First, there is printed what is called a resolution 
 of appropriation or a resolution of intention. 
 This is like the publication of a bill before a 
 Legislature for the appropriation of money. It 
 is published and laid on the desks of members 
 for the information of members, and after it has 
 been published, and when it is reached in order, 
 it is taken up and acted upon. The same in this 
 case. Then it is either rejected or passed or 
 amended. Here, it was amended. This is pre- 
 cisely the course which this resolution took, as 
 appears by the record. As I say, the proceeding 
 is analogous to that in our Legislatures; and I 
 presume it was modeled after it. 
 
 There is no question about the publication hav- 
 ing been made in this first instance none at all. 
 The publication was for the appropriation of 
 $103,500. The Board cut down the sum to
 
 97 
 
 )2,000. and the company agreed to take that 
 sum. The original amount was for $2,500 a 
 month, which would amount to $103,500 for the 
 forty-six months; and the sum was cut down to 
 $2,000 per month, which would amount to $92,000. 
 
 Mr. Justice McKiNSTRY. There was no publica- 
 tion of the ordinance as finally passed ? 
 
 Mr. HOGE. There was nothing but this first 
 publication of the ordinance or resolution of 
 appropriation. That was published, as I presume 
 all similar publications are made, for the informa- 
 tion of the people. It attracts the attention of 
 the people to it ; and if they desire, they can 
 manifest their sentiments in regard to it, by pro- 
 test, or petition, or otherwise; and after due 
 course of publication, the matter comes up for 
 final action, and the Board takes action upon it. 
 Of course the members of the Board can be 
 approached in the meantime, and influenced by 
 argument, or in any legitimate manner, either for 
 or against the bill. When the matter comes back, 
 it assumes the form of law. 
 
 There is nothing, then, but the first publication 
 of the ordinance appropriating the money. That 
 publication is for the information of the people. 
 It directs attention to the fact and the purpose of 
 the appropriation. The people may take notice 
 and appear and protest, if they so desire. Or they 
 can appear when the matter comes up for final 
 action when the Board is to take concluding 
 action on the subject. And, as I have said, the 
 members can be approached and influenced by 
 arguments pro and con, as the public, which has 
 been duly notified, sees fit to exercise the privi-
 
 98 
 
 lege. Then, by the subsequent action referred to, it 
 assumes the form of law. 
 
 Mr. Justice McKiNSTRY. If you will pardon 
 me, not wishing to interrupt your learned argu- 
 ment, the mingling of these statutes and these 
 ordinances and resolutions, seems to complicate 
 the matter. At least, I am not certain whether I 
 thoroughly understand the statement. Let me 
 see if I do: 
 
 There was a claim presented to the Board of 
 Supervisors, before this alleged ordinance was 
 introduced; which claim was for the sum of 
 $103,500. 
 
 Mr. HOGE. Yes, sir; a claim for $103,500. 
 Upon that the first action took place. That was 
 the basis for the action. 
 
 Mr. Fox. The first account, as passed to print, 
 was for $103,500. 
 
 .Mr. Justice McKixsiRY. That was the amount, 
 taking the whole estimates for a given number of 
 months together? 
 
 Mr. HOGE. Yes, sir. 
 
 Mr. Justice McKixsTRY. This claim having 
 been presented, then an appropriation, or an 
 authorization to appropriate money to the amount 
 of $103,500 was passed ? 
 
 Mr. HOGE. Yes, sir. An authorization or ap- 
 propriation of money must be made whenever 
 there is a contemplated disbursement of money 
 in excess of $500. 
 
 Mr. Justice McKixsTRY. The amount of the 
 appropriation depends upon the amount of the 
 claim submitted ? 
 
 Mr. HOGE. That is the basis of the appropria-
 
 99 
 
 tion. That is passed when the claim is presented. 
 That is the ordinance of intention. That is no- 
 tice that the Board are going to entertain this 
 claim, and the appropriation is drawn up, usually, 
 in accordance with the amount of the claim. 
 Upon the introduction of any claim, or of a cer- 
 tain number of claims aggregating so much, the 
 Board take and vote as to whether the appropria- 
 tion of the ordinance shall be published or not; 
 and when that ordinance has been published five 
 days, then the Board are competent to act upon 
 it directly. 
 
 Mr. Justice McKiwsrRY. Well, you understand 
 that, in any case, a claim of a specific nature must 
 be first presented, before there is authority to 
 appropriate moneys at all. 
 
 Mr. HOGE. I presume that the appropriation 
 must be made according to the amount of the 
 claim or claims or approximately so before the 
 Board will take the first action in the premises. 
 At least, that is the custom, according to my 
 information. I don't suppose, however, that 
 there is anything in the law, or in the rules of 
 the Board, which prescribes an identity of the 
 amount in the claim presented and the appropria- 
 tion and the amount finally passed. But it is 
 customary to follow the introduction of a claim, 
 if it be on its face a valid one, with an appropria- 
 tion fitting the amount therein specified. 
 
 Mr. Justice McKiNSTRY. In this case, the 
 amount was presented for $103,500 ? 
 
 Mr. HOGE. Yes, sir. 
 
 Mr. Justice McKiNSTRY. Is there anything to 
 prevent the Board from increasing the amount
 
 100 
 
 finally passed upon in the bill, after the publica- 
 tion of this appropriation, or notice of the appro- 
 priation ? 
 
 Mr. HOGE. Well, it is not very likely that the 
 Board would exceed the amount fixed in the 
 original ordinance of appropriation, when they 
 come to formally act upon the bill. They may 
 certainly make an appropriation, finally that is, 
 by the passage of the final bill less than that in 
 the original ordinance of intention. Certainly 
 the appropriation does not carry with it, neces- 
 sarily, a minimum limit for the amount to be acted 
 upon. The Board have power to appropriate 
 moneys for the payment of any claim not exceed- 
 ing $500, at the time the bill is introduced, at 
 the time the claim is submitted. But on all claims 
 exceeding $500, they must first pass an appropri- 
 ation bill. It cannot affect the validity of that 
 appropriation if the sum finally agreed to be paid, 
 and specified in the final passage of the claim, 
 does not exceed the amount specified in the appro- 
 priation notice. Here in this case, there was an 
 appropriation of $103,500, and the claim was 
 finally passed for $92.000, much less than the 
 amount of the original appropriation. Whether 
 the actual expenditure of money shall come up to 
 the sum of $103,500, or shall fall short of it, 
 depends on the ultimate action of the Board on 
 the account. At this stage, they have taken no 
 absolute action on the account at all. The pre- 
 sentation of the account sets the Board in action 
 in motion. When the account is presented, after 
 the five days shall have expired, they may approve 
 or reject the claim.
 
 101 
 
 Mr. Justice McKiNSTRY. But there is no at- 
 tempt at that time to decide whether the appro- 
 priation finally, the auditing or accepting or 
 approving finally, shall be within the $103,500? 
 
 Mr. HOGE. The Board determine that, when 
 they finally act upon the claim. This account 
 said $103,500. The Board finally passed the claim 
 for $92,000. They refused to pass upon the 
 account for more than $92,000. And the com- 
 pany agreed to take $92,000. And when the com- 
 pany ascertained the determination of the Board, 
 they presented this claim in the sum which was 
 satisfactory, to wit, $92,000. 
 
 Mr. Fox. The amount finally passed, cannot 
 exceed the amount of the original appropriation. 
 
 Mr. Justice McKiNSTRY. Well, do you say that 
 the words, " not to exceed " are in the appropria- 
 tion ordinance ? and do they affect the appropria- 
 tion in such a way as to fix the exact amount of 
 the claim as ultimately acted upon by the Board ? 
 
 Mr. Fox. We contend that it does not effect 
 the power of the Board to finally appropriate any 
 sum less than the amount put in the original ordi- 
 nance of intention. 
 
 Mr. HOGE. It is an appropriation of a given 
 amount of money, based upon a certain claim and 
 manifestly for a specified object. The amount of 
 the claim finally acted upon, may reach $103,500; 
 or the Board may pay out less than that amount 
 under that publication. But the Board may not 
 pay more, it appears. Indeed, that would be the 
 construction or the limit, without any specific 
 words to that effect. There is an appropriation 
 of so much money in the treasury which may or
 
 102 
 
 may not be required for a certain claim or claims. 
 The amount may not be called upon at all; it will 
 not be until the action of the Board after the five 
 days shall have expired. 
 
 Mr. Justice CROCKETT. Is there any provision 
 in the Consolidation Act whereby the appropriation 
 must be made explicit before or after an account 
 is passed upon and allowed by the Board? 
 
 Mr. HOGE. None further than has been stated. 
 
 Mr. Justice CROCKETT. But the original notice 
 of intention, or appropriation ordinance, must 
 correspond to the original amount of the claim 
 or claims presented to the Board. 
 
 Mr. HOGE. That is the practice. This appro- 
 priation is a particular legislative action. It is 
 analogous to the action of our legislative bodies 
 or executive officers. The appropriation itself is 
 legislative action ; then the approval of the ac- 
 count, directing the drawing out of the money 
 under that appropriation, is judicial action. This 
 is done afterwards, before any money can be actu- 
 ally taken out of the treasury. 
 
 The Board is set in motion when claims are 
 presented to it for allowance ; that is, if they 
 think they are right, or if Ihey appear to be valid 
 upon their face. They might, it is very true, refuse 
 to make any appropriation whatever in connection 
 with any given claim or claims. They could 
 reject a bill, as I have stated, just as a legislative 
 body could, on the first reading of a bill, order it 
 rejected. There is an express motion in the pre- 
 liminary minutes to that effect. 
 
 In this, the legislative action of the Board of 
 Supervisors corresponds to the rules of practice
 
 103 
 
 in all legislative bodies. They might reject at the 
 outset ; but it is not usual to do so. It is usual 
 to make an appropriation corresponding with the 
 amount of the claim. It is not considered re- 
 spectful in legislative bodies, to move the rejec- 
 tion of a bill on its introduction; and unless it is 
 palpably wrong, such a motion never will be 
 made by any member of a legislative body, who 
 has proper courteous respect for his fellow-mem- 
 bers. The respectful and ordinary method on the 
 introduction of a bill, as your Honors well know, 
 is to send it to a committee, although the Legis- 
 lature can, in either House, reject it forthwith, 
 on presentation. But the bill is usually sent to a 
 committee. There it is investigated if it is con- 
 sidered worthy of investigation and reported 
 upon, etc., taking the usual familiarly known 
 course of legislative proceedings. 
 
 The action upon this appropriation bill or ordi- 
 nance, in the Board of Supervisors, is analagous 
 to that first action which takes place in all legis- 
 lative bodies, when any measure is introduced by 
 a member of the Assembly or the Senate. 
 
 The further analogy brings in the executive 
 officers of the State. That is to say. there is an 
 appropriation bill passed by the Legislature and 
 signed by the Governor. Having become a law, 
 the executive officers of the State, under it, are 
 empowered to determine upon the validity and 
 justice of all claims which may be presented un- 
 der the several funds of the State; and with their 
 auditing the bills so passed. 
 
 Now, the Board of Supervisors act legisla- 
 tively and judicially, in the manner which I have
 
 104 
 
 suggested. First, the appropriation bill, and then 
 the explicit consideration and passage of the 
 claims coming under that appropriation, and on 
 account of which the appropriation is declared to 
 have been made. 
 
 Mr. Justice CROCKETT. I should have con- 
 sidered that the most appropriate method and 
 order of the proceedings would have been to first 
 pass upon an account consider and determine 
 how much money was actually needed and then 
 pass an appropriation bill to meet it. 
 
 Mr. HOGE. That might have been the practice; 
 but it is not the ordinary action of the Board of 
 Supervisors. I do not suppose that they are very 
 learned men, ordinarily, as legislators, speaking 
 of them intentionally, with very great respect. 
 
 But, as I have suggested, when they approve a 
 bill, they act judicially. When they make an 
 appropriation, they act as legislators. They pro- 
 vide a fund for the meeting of a claim or claims 
 presented to them. Then they act specifically 
 and directly upon the particular claim or claims 
 to which the appropriation had reference. 
 
 Your Honors will bear in mind all the time, 
 that here the Board refused to pass upon the 
 claim for anymore than $92,000; and the cor- 
 poration finally agreed to that amount; and that 
 amount was passed upon by the Board. 
 
 Mr. Justice CROCKETT. You say they first pass 
 an appropriation of money, and then pass a reso- 
 lution or ordinance such as this appropriating 
 $92,000 the original appropriation being for 
 $103,000. That would be making an appropria- 
 tion outside of the sum required to meet the
 
 105 
 
 claim presented or finally acted upon. What is 
 done with the surplus ? What effect does that 
 have upon the appropriated amount which is not 
 used ? Suppose they drew nothing on account of 
 this appropriation ? 
 
 Mr. HOGE. The money will remain there. It 
 is like an Act of Congress making an appropria- 
 tion for a particular purpose; the money may 
 never be drawn out, and frequently it never is. 
 And there are acts of Congress innumerable upon 
 the statute book, providing for the use of money 
 heretofore appropriated and unemployed. That 
 is a very ordinary thing in Congressional legisla- 
 tion. 
 
 Mr. BURNETT. There haven't been any laws of 
 that kind passed Congress during the last twenty- 
 five years. 
 
 Mr. Justice McKiNSTRY. I understand the sug- 
 gestion on the other side to be this, substantially: 
 The claim shall be first allowed. That is to say, 
 the bill for the appropriation shall be according 
 to the allowed claim, or according to the amount 
 that is to be allowed. So that the incorporation 
 and the public shall have had an absolute notice 
 of the exact amount of the bill to be passed of 
 the amount in the application on a claim for pub- 
 lic moneys, where the sum is over $500. 
 
 Mr. Fox. That is exactly .what they did here. 
 
 Mr. Justice McKiNSTRY. (Continuing.) There 
 is to be a certain sum of money in the appropria- 
 tion bill or ordinance, of the expenditure of which 
 the public have due notice by due publication. 
 I understand the other side contend, that in this 
 instance there was not that publication of an in-
 
 106 
 
 tended appropriation which was anticipated and 
 provided for by Horace Hawes or some other of 
 the legislators co-operating with him in the passage 
 of the Consolidation Act. I understand the other 
 side to suggest and contend, that wherever a sum 
 greater than $500 is to be paid upon any claim, 
 the antecedent appropriation bill or ordinance 
 shall explicitly state the amount which is to be 
 finally approved, and which is finally approved; 
 and that that exact sum must be published in an 
 ordinance of appropriation, before a bill can be 
 legally passed, or a claim legally allowed, by the 
 Board under an appropriation notice. Now, here 
 is a notice for the sum of $103,500 a notice of 
 appropriation, for a certain purpose, of that 
 amount. And here is a final passage of a claim 
 for $92,000, for the object specified in the claim, 
 which was originally for $103,500. And no ordi- 
 nance of intention or appropriation for $92,000 was 
 ever printed. Of this the other side complain. 
 
 Of course it all turns upon the construction to 
 be given to the statute. I understand the view 
 on the other side to be, that the sum of money 
 in the bill that is finally passed, must be named 
 in the appropriation ordinance that is printed. 
 
 Mr. Justice RHODES. There are these two sets 
 of resolutions required: resolutions of authoriza- 
 tion, and resolutions of allowance or approval of 
 the claim. The two are necessary. 
 
 Mr. Fox. Yes, sir. 
 
 Mr. HOGE. There is no provision in the law on 
 the subject, except this, which appears in the 
 rules of the Board: that they shall pass an appro-
 
 107 
 
 priation bill or ordinance, before final action on 
 any claim, or claims exceeding $500. 
 
 Mr. Justice KHODES. That is in the law ? 
 
 Mr. HOGE. That is in conformity with the law. 
 The appropriation is one thing, and the approval 
 is another. As your Honor says, there are two 
 sets of resolutions, and this is their order. 
 
 Mr. Justice RHODES. The only question in my 
 mind is. as to whether by the proper construction 
 of the statute, the Board are obliged to act up to 
 the precise amount in the appropriation ordinance. 
 In other words, whether an appropriation in ex- 
 cess of the sum which is finally allowed on a 
 claim, is a good and valid publication of the 
 notice of intention for that claim. 
 
 Mr. HOGE. There is no provision for a publica- 
 tion at all, except when the claim is first intro- 
 duced. 
 
 Mr. Justice RHODES. It might be contended on 
 the other side and perhaps is that no appro- 
 priation is made except in consequence of, and in 
 connection with, the claim allowed. 
 
 Mr. SWIFT. Yes, sir. 
 
 Mr. Justice RHODES. Here there was a claim 
 for $103, 500; an ordinance of appropriation was 
 passed for that amount. Then the Board pro- 
 ceeded to investigate the claim; and they finally 
 passed upon a claim for $92,000. 
 
 Mr. HOGE. Yes, sir; but what they did after- 
 wards was not required to be published. 
 
 Mr. Justice RHODES. Well, is there anything 
 in the Statute that absolutely requires or con- 
 templates two sets of resolutions: one of authoriza- 
 tion, and the other of allowance of a claim?
 
 108 
 
 Mr. Justice MoKiNSTRY. In other words : Can 
 an allowance of a claim be duly had upon a pub- 
 lication of a notice of intention to appropriate 
 more than $500, and yet less than the sum actu- 
 ally finally passed and approved, with respect to 
 the particular claim ? 
 
 Mr. HOGE. In answer to your question, I have 
 read already the 68th section. That provides for 
 the legislative action; that provides for the ap- 
 propriation. That is to be approved by the 
 Mayor; it becomes a law on his signature. That 
 resolution or ordinance is approved by the Mayor. 
 
 Then, when we turn to Section 85, we read as 
 follows: 
 
 " All other lawful demands payable out of the 
 treasury, or any public funds of said city and 
 county, and not hereinbefore in this section 
 specified, must, before they can be allowed by the 
 Auditor, * * * * be first approved by the 
 Board of Supervisors ; or, if the demand be under 
 $200, by the President and two members thereof, 
 appointed by the Board for that purpose." * * * 
 
 That does not require any action on the part of 
 the Mayor at all. 
 
 The analogy is perfect to the legislative action 
 in an appropriation bill. An appropriation bill 
 appropriates a certain amount, or not to exceed a 
 certain amount, for certain purposes for certain 
 claims or demands made, or to be made, against 
 the State. Then these demands come up before 
 the different offices or officers of the governmental 
 department for action, and if they are allowed 
 or passed or confirmed, their status and validity 
 is determined by that act. Then they are paid
 
 109 
 
 out of that previous appropriation which had 
 required legislative action, and legislative action 
 alone. 
 
 Mr. Justice McKmsTRY. When the Board meet 
 to levy taxes, they are required to determine how 
 much shall be levied for each fund. 
 
 Mr. HOGE. Yes, sir. 
 
 Mr. Justice McKiNSTRY. Isn't that substantially 
 an appropriation of money ? 
 
 Mr. HOGE. No, sir. That is merely done for 
 the purpose of fixing the amount of taxation. 
 That fixes the taxation list. That is to ascertain 
 what amount is to be raised and where certain 
 sums shall go into this and that fund, and for 
 such purposes; there being a general title to cer- 
 tain divisions of county and State money. 
 
 Now, there is a discrepancy on the face of this 
 resolution in regard to dates. The resolution of 
 intention provides for an appropriation for the 
 payment of a bill between certain dates, embrac- 
 ing a period within four years. When you come 
 to this last resolution or approval, it approves a 
 claim covering the whole case, but giving the 
 dates from January 1st, 1871, to Nov. 30, 1872. 
 It is evident that this must have been an acci- 
 dent or a clerical error, because the reference is 
 clear and explicit all the way through to this 
 identical claim. 
 
 The Board having intimated its intention to 
 approve for not more than $92,000, the Spring 
 Valley Water Company agreed to present their 
 bill for that amount; and this resolution cuts 
 down the appropriation for the purpose specified,
 
 110 
 
 and authorizes payments only to this extent, to 
 wit, $92,000. 
 
 It is said that the company did not present their 
 claim originally for this amount. Of course they 
 didn't. That is significant and undenied, and 
 everywhere asserted. But the company afterwards 
 presented a demand for this express sum, and the 
 Board allowed it. It was approved unanimously, 
 and it was approved by the Mayor, although that 
 was unnecessary. This is not denied by any por- 
 tion of the answer; on the contrary, it is admit- 
 ted. That bill, that final account, was in the 
 terms of the original claim, precisely; for the 
 same portion of time. 
 
 It is exactly similar, except in this particular: 
 whereas, the former claim was for $2,250 per 
 month the amount in the original bill this 
 claim is for $2,000 per month, making the sum of 
 $92,000 instead of the sum of $103,500. 
 
 There could have been no mistake as to the 
 time intended to be covered by both parties, by 
 the final appropriation. 
 
 But then comes Resolution 4022. That takes 
 up the account on appeal, and passes upon it, and 
 provides that it shall be in payment of this water, 
 up to Nov. 30, 1872. 
 
 This is not, and could not be controverted in 
 the answer. The allowance was within the appro- 
 priation. And it was clearly understood by both 
 parties to cover the entire claim as originally pre- 
 sented in the original $103,500 account. 
 
 These, as it seems to me, were all matters of 
 fact, to be submitted to the Board on appeal. 
 They were facts ; and the Board passed upon 
 them.
 
 Ill 
 
 There was something said about advertising, as 
 required in the 69th Section of the Act. It 
 doesn't seem to me that any question of adver- 
 tising figures in this transaction, one way or the 
 other not at all. It is not within the provision 
 of the 69th Section at all. This is not required to 
 be advertised : 
 
 "All contracts for building and printing to be 
 done for the said city and county, and ordinary 
 supplies for the subsistence of prisoners, must be given 
 by the Board of Supervisors to the lowest bidder 
 offering adequate security, after due public notice 
 for not less than five days," etc. 
 
 There is nothing in the answer that raised any 
 question upon this matter of advertising. It is 
 referred to in the argument, but not raised in the 
 issues at all. 
 
 Mr. SWIFT. There is an express provision for 
 the procuring of water for school purposes; that 
 is enumerated among the purposes for which 
 appropriations may be made by the Board of 
 Education. 
 
 Mr. HOGE. Well, I have already answered that 
 portion of the gentleman's argument, and stated 
 all I desire to say on that subject. 
 
 [The Court took a recess for one hour.]
 
 112 
 
 Continuation of Argument of J. P. Hoge. 
 
 MONDAY AFTERNOON, May 14, 1877. 
 
 Mr. HOGE. May it please your Honors, I will 
 continue but a very few minutes longer. There 
 are one or two propositions I wish to say a few 
 words on. 
 
 I understand, Mr. Swift, that you have taken 
 the position that a certain section of the Consoli- 
 dation Act applied as a statute of limitations on 
 this claim, and cut off the power of the Board 
 to allow it. 
 
 1 think the section referred to is Section 90 of 
 the Consolidation Act. [Reading.] 
 
 " SECTION 90. The salaries, fees and compensa- 
 tion of all officers, including policemen and em- 
 ployees of all classes, and all teachers in common 
 schools, or others employed at fixed wages, shall be 
 payable monthly ; and any demand whatever upon 
 the treasury, hereafter accruing, shall not be paid, 
 but shall be forever barred by limitation of time, 
 unless the same be presented for payment, prop- 
 erly audited, within one month after such demand 
 became due and payable; or if it be a demand 
 which has to be passed and approved by the 
 Board of Supervisors or Board of Education, then 
 within one month after the regular session of the 
 proper Board, held next after the demand accrued, 
 or unless the Board of Supervisors shall, within
 
 113 
 
 six months after the demand accrued as aforesaid, 
 on a careful investigation of the facts, certify that 
 the same is in all respects just and legal, and that 
 the presentation of it, as above required, was not 
 in the power either of the original party inter- 
 ested or his agent, or the present holder, in 
 which case it shall be barred in the same manner 
 unless presented for payment within twenty days 
 thereafter." 
 
 That section has no application in a case like 
 this. 
 
 The judgment here, by express provision of 
 law, is not payable until audited, and until the 
 Auditor shall make these entries in his record. 
 Under these circumstances, the statute hasn't be- 
 gun to run at all if that is the statute in force. 
 
 But he also shadowed forth the idea or proposi- 
 tion that this claim was barred, in consequence of 
 the company having, for a certain number of 
 years, given water to the city without claiming 
 any compensation. That is his proposition, if I 
 understand him. 
 
 Mr. SWIFT. I made that as an argument. 
 
 Mr. HOGE. The meaning of the law referred to 
 by counsel in this branch of his argument, is a 
 subject for judicial decision. 
 
 I refer to a case reported in the Chicago Legal 
 News, decided by the Supreme Court of the United 
 States. There are two cases. In these cases it is 
 held that the construction of the law is a judicial 
 question, to be settled by the Courts and the 
 judges. The laws of a State are to receive their 
 authoritative construction from the State Courts,
 
 114 
 
 and that construction, when fixed by the State 
 Courts, is binding on the U. S. Courts. That 
 which purports to be the law of a State is, 
 or is not the law, according as the true fact may 
 be, and not according to the shifting circum- 
 stances of the parties. It would be perfectly 
 immaterial what construction these parties put 
 upon the law. That don't affect the question one 
 way or the other. This Court is to decide as to 
 what the law is. 
 
 There is another proposition assumed in the 
 case, although the counsel did not discuss it. I 
 don't recollect whether, in his brief, he lias dis- 
 cussed it or cited authorities upon it. That is, 
 that the resolution of the Board, after the initia- 
 tion of these proceedings, had been repealed by 
 subsequent resolution; and that that justified the 
 action of the Auditor. 
 
 That proposition is very thoroughly discussed 
 by the learned Judge of the District Court who 
 decided this case. His opinion is in the record, 
 and the authorities there cited. 
 
 I have a large number of additional authorities 
 which were not cited by the Judge of the Dis- 
 trict Court, which I will not take up time now to 
 examine and comment on. With the permission 
 of the Court I may add them to my brief. 
 
 The matter is very thoroughly discussed in a 
 case cited, where the opinion was delivered by 
 Judge Field. It is in the 2d Wallace. When a 
 perfect right of action has accrued on a contract 
 which is authorized by a statute, neither the 
 contract nor a suit pending for its enforce- 
 ment will be affected by the repeal of the stat-
 
 115 
 
 ute. Of course, if 1 am correct in my propo- 
 sition as laid down here, there could be no 
 repeal of the decision of the Board, of its own 
 motion, after these proceedings were introduced. 
 After the judgment of the Court had been acted 
 upon by the parties, and an account, in pursuance 
 of that judgment, had been approved and allowed, 
 no appeal of this kind can affect the question. 
 
 Where these questions generally come up they 
 are questions arising on State legislation. Where 
 a Legislature undertakes to repeal a former stat- 
 ute, the question arises as to how far private 
 rights are affected by the exercise of legislative 
 power in a given case. There is a question as to 
 how far a Legislature could repeal previous legis- 
 lation under which rights have grown up. But I 
 never heard of a case before where it was at- 
 tempted to be asserted that an inferior corporate 
 body or board could, upon their own motion or 
 resolution, change the effect of their contract or 
 liability to third persons, whether that contract 
 was express or implied ; and especially where the 
 contract had assumed and taken the form of a 
 judgment, it, as we contend, is conclusive of the 
 rights of the parties. In this case at bar here, 
 the property of the plaintiff has been devoted to 
 the uses of the city for a very long period of 
 time, and this has been done with the knowledge, 
 and with the assent, and upon the order of the 
 government of the city and all its authorities. A 
 claim is presented for this property. This Board 
 take up the account, they pass upon it judicially, 
 and allow a claim, and order it paid. And now, 
 when a case comes here involving the question as
 
 116 
 
 to whether the officer, whose duty it is to enter 
 the approved account in his book, shall perform 
 his prescribed service, it is alleged that the Board 
 has repealed the resolution and judgment by 
 which the claim was allowed, and that, therefore, 
 this officer can't take any action upon it. It 
 seems to me that the proposition is absurd upon 
 its face. 
 
 There is another proposition involved here that 
 is very much discussed in some four or five cases 
 by our Supreme Court, in relation to implied con- 
 tracts and the liability of corporations, and muni- 
 cipal corporations as well with reference to im- 
 plied contracts. In such a case as this, the law 
 implies liability on the part of the city to pay for 
 such property. In the case of executory con- 
 tracts, the rule would be different. 
 
 These matters are fully discussed by our Supreme 
 Court in the cases of the Gas Company vs. San 
 Francisco, 9th Gal., 469; Argenti vs. City of San 
 Francisco, 16th Cal., 282; Pixley vs. Western 
 Pacific R. R. Co., 33d Cal., page 33; McCracken 
 vs. City of San Francisco, 16th Cal., 631; and in 
 Dillon on Municipal Corporations, sections 383 
 and 4, and notes. 
 
 I have gathered these cases here together. They 
 hold clearly that municipal corporations stand 
 upon no higher plane than the ordinary corpora- 
 tions; that both are, like individuals, subject to 
 the rules of justice; and contracts are implied 
 under the same circumstances in all of them. If 
 the city obtained the money of theirs, it is her 
 duty to refund not from any contract, but from 
 the general obligation to do justice which binds
 
 117 
 
 all persons, whether natural or artificial. If she 
 obtained other property which does not belong to 
 her, it is her duty to restore it; or, if used by her, 
 to render an equivalent in due manner from the 
 like general obligation. In these cases she does 
 not, in fact, make any promise on the subject; 
 but the law, which always intends justice, implies 
 one, and her liability, thus arising, is said to be 
 a liability upon an implied contract, and it is 
 no answer to a claim resting upon a contract of 
 this kind to say that no ordinance has been passed 
 upon the subject, or that the liability of the city 
 is void when it exceeds the limit of the charter. 
 
 The obligation is imposed by the general law, 
 and is independent of any ordinance and the re- 
 straining clauses of the charter. This is the law 
 as stated in Argenti vs. the City of San Francisco, 
 pages 282 and 283. 
 
 Now this reasoning would apply very strongly 
 to the case which is before the Court. 
 
 I look upon all these provisions these minu- 
 tiae requisitions of the Consolidation Act, as to 
 the form of the accounts and the indorsement of 
 their numbers upon them, etc. as simply di- 
 rectory to the officers; that they do not affect the 
 merits of a claim against the city. The Board 
 act judicially, under the power given to them to 
 pass upon all such claims and accounts, and have 
 the endowed right to dispose of them as they see 
 fit, and I hold that their decision is conclusive, 
 without respect to any attention to mere punc- 
 tilios of appearance in the premises. Their au- 
 thority, and the conclusiveness of their action, 
 does not depend upon compliance with every
 
 118 
 
 technical rule or proceedings. But under their 
 general judicial power to approve and dispose of 
 claims which come before them, they act in a 
 final and binding manner. If the Board does not 
 comply with all the minute particulars of forms 
 which may in any instance be prescribed, that 
 does not in any manner affect the validity of 
 their action or its conclusiveness in the premises. 
 And no officer can go behind that action, and say 
 that certain little requisites have not been com- 
 plied with that certain publications have not 
 been had that certain indorsements have not 
 been made on a particular bill or claim. If the 
 Board does not resort to technical modes of de- 
 feating an honest claim, but, i.n the pursuance of 
 its undoubted powers, approves and allows and 
 orders paid our claims, the subordinate officers, 
 having but a ministerial duty to perform, can't 
 get behind the action of the Board and refuse to 
 perform their duties in carrying out the decision 
 of the Board, which they have declared to be 
 final. You can no more go behind the action of 
 the Board of Supervisors, in such a case as this, 
 in the manner which has been attempted here, 
 than you can go behind the judgment of the 
 District Court or of the Supreme Court, on the 
 ground of some technical informalities in the 
 clerical record of the proceedings of these tri- 
 bunals. 
 
 These are matters over which they have juris- 
 diction, and nobody can gainsay that fact. Apart 
 from this question in relation to furnishing water 
 free, they have jurisdiction over the whole subject 
 matter. It is submitted to them, and they are
 
 119 
 
 created by the law the special judicial tribunal to 
 pass upon all these things; and when they have 
 done so, the mouth of the subordinate officer is 
 closed. 
 
 Now, I do not propose to go into a number of 
 these, questions collateral questions and side 
 issues which have been discussed so much. I 
 think I have taken up the main propositions and 
 considered them. I have stated all I desire to say 
 upon them. 
 
 The briefs will contain the authorities upon 
 these matters which I have discussed ; and now I 
 shall, as far as I am concerned, submit the case 
 upon what I have said.
 
 8 1 5
 
 UNIVERSITY OF CALIFORNIA AT LOS ANGELES 
 
 THE UNIVERSITY LIBRARY 
 This book is DUE on the last date stamped below
 
 _. ,, 
 
 S25H6 Spring Valley 
 lyi 1 ouuijjony 
 and County of 
 
 San Francisco. 
 
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 225 
 S25H6 
 cop.l