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This section has no parallel in the Constitution of 1849. Mr. Justice Henshaw says, in San Francisco etc. Ry. v. San Francisco, 26 Cal. Dec. 104, that the end sought to be attained was a just and uniform method of taxation for railroads operated in more than one county. "The section, as originally introduced, provided for the assessment of all railroad property by the board of equalization, but was amended so as to provide only for such assessment where the road was operated in more than one county.
This section is cited as to the assessment of railroad property in the following cases: People v. Sacramento Co., 59 Cal. 325; San Francisco etc. R. R. Co. v. State Board, 60 Cal. 28; C. P. Co. v. Board of Equalization, 60 Cal. 58; San Francisco v. C. P. R. R. Co., 63 Cal. 469, 49 Am. Rep. 98; People v. Central Pacific R. R. Co., 83 Cal. 401, 23 Pac. 303; People v. C. P. Co., 105 Cal. 591, 38 Pac. 905; San Diego Co. v. Riverside Co., 125 Cal. 499, 58 Pac. 81; Germania Trust Co. v. San Francisco Co., 128 Cal. 593, 61 Pac. 178; San Francisco & S. M. Ry. Co. v. Scott, 26 Cal. Dec. 103.
Situs of Railroad Property. This section is self-executing. (San Francisco etc. R. R. Co. v. State Board, 60 Cal. 12.)
It has no relation to the assessment of the property of railroad corporations operated in more than one county. (Central Pac. R. R. Co. v. Board of Equalization, 60 Cal. 35.)
Boards of supervisors of the several counties, through which ruz railroads operated in more than one county, have no jurisdiction to raise or lower the assessment placed upon the property of such roads by the board of equalization. (People v. Sacramento County, 59 Cal. 321.)
This section does not in terms require the assessed value of the franchise, roadway, roalbed, rails, and rolling stock, to be separately apportioned. (San Francisco etc. R. R. Co. v. State Board, 60 Cal. 12.)
Steamers used by a railroad company in transporting its freightcars across the bay of San Francisco are not included in the property mentioned in this section, and should be assessed by the local as. sessors, and not by the state board of equalization. (San Francisco vi Central Pac. R. R. Co., 63 Cal. 467, 49 Am. Rep. 98; State v. C. F. R. R. Co., 127 U. S. 1, 8 Sup. Ct. Rep. 1073.)
A law providing for the assessment and collection of taxes upon railroads operating in more than one county is valid. (People v.
Central Pac. R. R. Co., 105 Cal. 576, 38 Pac. 905; People v. Central Pac. R. R. Co., 83 Cal. 393, 23 Pac. 303, overruled.)
In making a reassessment of railroad taxes, to take the place of an invalid assessment of a previous year, it is the duty of the board to make the apportionment to the counties as they existed at tho time of the invalid assessment, and not at the time of the reassessment. (San Diego County v. Riverside County, 125 Cal. 495, 58 Pac. 81.)
Railroad property not specified in this section is assessed for taxation by the local assessor of the county, town, or other taxing district where situated. (Germania Trust Co. v. San Francisco, 128 Cal. 589, 61 Pac. 178.)
The word “railroads'' as used in this section does not include street railroads. (S. F. & S. M. Ry. Co. v. Scott, decided Feb. 16, 1904.)
Fences are not part of the roadway assessable by board of equal. ization, but are improvements assessable only by the local authori. ties of the county in which they are situated. (Santa Clara Co. v. S. P. R. R. Co., 118 C. S. 394, 6 Sup. Ct. Rep. 1132.)
Rolling stock owned by a lessee and used by it in operating a leased line in more than one county in the state is properly assessed to the lessee. (Smith v. Rackliffe, 83 Fed. 983.)
§ 1. Use of water a public use-Water rates.
2. Right to collect rates—How exercised.
USE OF WATER A PUBLIC USE-WATER RATES.
Sec. 1, Art. XIV. The use of all water now appropriated, or that may hereafter be appropriated, for sale, rental, or distribution, is hereby declared to be a public use, and subject to the regulation and control of the state, in the manner to be
prescribed by law; provided that the rates or compensation to be collected by any person, company, or corporation in this state for the use of water supplied to any city and county, or city or town, or the inhabitants thereof, shall be fixed, annually, by the board of supervisors, or city and county, or city or town council, or other governing body of such city and county, or city or town, by ordinance or otherwise, in the manner that other ordinances or legislative acts or resolutions are passed by such body, and shall continue in force for one year and no longer. Such ordinances or resolutions shall be passed in the month of February of each year, and take effect on the first day of July
thereafter. Any board or body failing to pass the necessary ordinances or resolutions fixing water rates, where necessary, within such time, shall be subject to peremptory process to compel action at the suit of any party interested, and shall be liable to such further processes and penalties as the legislature may prescribe. Any person, company, or corporation collecting water rates in any city and county, or city or town in this state, otherwise than as so established, shall forfeit the franchises and waterworks of such person, company, or corporation to the city and county, or city or town where the same are collected, for the public use.
For use of streets by water companies, see section 19, article XI, ante.
There is no parallel provision in the Constitution of 1849. To enforce the provisions of this section the legislature has passed the act of March 26, 1880 (Stats. 1880, p. 16), for the fixing of rates for water sold for irrigating purposes; the act of March 7, 1881 (Stats. 1881, p. 54), for the fixing of rates for water supplied to municipalities, and the act of March 12, 1885 (Stats. 1885, p. 95), to regulate and control the sale, rental and distribution of appropriated water in this state other than in any city, city and county, or town therein, and to secure the rights of way for the conveyance of such water to the places of use.
San Francisco etc. Factory v. Brickwedel, 60 Cal. 169; S. V. W. W. v. S. F., 61 Cal. 4; S. V. W. W. v. S. F., 61 Cal. 25; People v. Stephens, 62 Cal. 232; McFadden v. Los Angeles, 74 Cal. 571, 16 Pac. 397; S. V. W. W. v. S. F., 82 Cal. 286, 16 Am. St. Rep. 116, 22 Pac. 910, 1046; Sheward v. Citizens' Water Co., 90 Cal. 635, 27 Pac. 439; Jacobs v. Supervisors, 100 Cal. 125, 34 Pac. 630; People v. Elk etc. Co., 107 Cal. 221, 48 Am. St. Rep. 125, 40 Pac. 531; Merril v. Southside Irr. Co., 112 Cal. 426, 44 Pac. 720; San Diego Water Co. v. San Diego, 118 Cal. 556, 22 Am. St. Rep. 261, 50 Pac. 633; Fitch v. Su. pervisors, 122 Cal. 286, 54 Pac. 901; Fresno Canal etc. Co. v. Park, 129 Cal. 441, 62 Pac. 87; Crow v. San Joaquin etc. Irr. Co., 130 Cal. 309, 62 Pac. 562, 1058.
Construction of Section. The provisions of this section are both self-executing and mandatory. (Spring Valley W. W. v. San Fran. cisco, 61 Cal. 18.)
The meaning of this section, which declares that “the use of all water appropriated for sale, rental, or distribution," is a public use, cannot be so broadened as to cover the proposition that all water which is distributed among a number of persons is from that fact alone to be considered as devoted to a public use. (Hildreth v. Montecito Water Co., 139 Cal. 22.)
A public use must be for the general public, or some portion of it, in common, and not a use by or for particular individuals, or for the benefit of certain estates. The right of an individual to a public use of water is in the nature of a public right, possessed by reason of his status as a person of the class for whose benefit the water is appropriated or dedicated. (Hildreth v. Montecito Water Co., 139 Cal. 22.)
Where a number of persons owning land are each entitled to take water from a common source, for use upon their respective tracts, the water right of each is individual and several, and must be considered as private property, and not the subject of public use, and if such persons form a corporation for the diversion and distribution of the water, reserving their several rights in the water, they do not dedicate the water to public use; but the corporation becomes merely their agent, and the water remains in individual ownership and private use as before. (Hildreth v. Montecito Water Co., 139 Cal. 22.)
The provision of this section that a person or company collecting water rates “otherwise than so established,” shall forfeit its franchises and property, is to be construed as meaning contrary to, or in violation of, established rates. The law abhors a forfeiture, and it will not be declared, if the language admits of a fair and reasonable construction to the contrary. (Contra Costa Water Co. v. Breed, 139 Cal. 432.)
The section applies to a foreign corporation coming into California and acquiring water rights. (San Diego etc. Co. v. National City, 74 Fed. 79.)
All the provisions of the Constitution in regard to water in municipalities must be taken and read together, and effect given to each of them. They must receive a practical common-sense construction, and be considered with reference to the prior state of the law, and the mischief intended to be remedied. (People v. Stephens, 62 Cal. 209.)
Prior to the adoption of the Constitution of 1879, the right of laying pipes in the streets of any incorporated city or town for the purpose of supplying the inhabitants thereof with water lay only in grant from the legislature. (People v. Stephens, 62 Cal. 209.)
This section does not apply to a case of a corporation which acquires and holds water solely for the use of its stockholders. (McFadden v. Los Angeles, 74 Cal. 571, 16 Pac. 397.)
This section has no reference to water furnished by a municipality itself, but refers to the rates to be collected for water authorized by section 19, article XI, of the Constitution, to be introduced into cities by individuals or companies incorporated for that purpose. (People v. Stephens, 62 Cal. 209.)
By this section water is declared to be a public use, subject to the control and regulation of the legislature in the manner prescribed by statute, such regulation, however, being subject to certain con. stitutional provisions, and among them the provision in respect to rates. (People v. Stephens, 62 Cal. 209.)
Under this section the use of water for sale is a public use, and the price at which it shall be sold is a matter within the power of the board of supervisors to determine. (Spring Valley W. W. v. San Francisco, 82 Cal. 286, 16 Am. St. Rep. 116, 22 Pac. 910, 1046.)
This section was not intended to appropriate water for the use of the public without compensation. (People v. Elk etc. Co., 107 Cal. 221, 48 Am. St. Rep. 125, 40 Pac. 531.)
When water is designated, set apart, and devoted to purposes of sale, rental, or distribution, it is “appropriated” within the mean. ing of this section, without reference to the mode of its acquisition. (Merrill v. Southside Irr. Co., 112 Cal. 426, 44 Pac. 720.)
Under this section it is made the duty of a water company supply. ing water for distribution to furnish water upon tender of the established rates, and no other duty than such tender can be lawfully prescribed or imposed by such company as a condition for supplying water as required by law. (Crow v. San Joaquin ete. Irr. Co., 130 (al. 309, 62 Pac. 562, 1058.).
An agreement by a consumer, upon being furnished water upon credit, that no water need be furnished him in succeeding years un. til such water is paid for, is without consideration, it being the duty of the company to furnish him the water, whether he made such agreement or not. (Crow v. San Joaquin etc. Irr. Co., 130 Cal. 309, 62 Pac. 562, Beatty, C. J., and McFarland, J., dissenting.)
A person engaged in furnishing water to the inhabitants of a city, under a franchise permitting him to lay pipes through the streets, cannot, without reasonable cause, shut off the water from one of such inhabitants, who is using the same at a fixed rate. (Mc. Crary v. Beaudry, 67 Cal. 120, 7 Pac. 264.)
It was the duty of the legislature to enact all needful laws to carry this section into effect; but the failure of the legislature to enact such laws could not prevent the establishment of the rates required to be established by the Constitution. (People v. Stephens, 62 Cal. 209.)
The provision of the act of 1858, requiring water companies to fur. nish water free of charge to cities and counties, was abrogated by this section. (Spring Valley W. W. v. San Francisco, 61 Cal. 18.)