Joseph McKenna

“ By acquiescing in the regulations of rates ever since 1880 the company is estopped from claiming equitable relief, and is guilty of laches; (7) water rates established by the ordinance are not shown to be lower than those charged in 1868, or if lower, that the revenue of the company is reduced; (8) if the ordinance is invalid, it is void on its face, and there is therefore no cloud on the company's title; (9) the company violated the contract by taking water from the Los Angeles river, and therefore is not entitled to specific performance.
We all consider these contentions in their order. ”

“ It is incredible that the city should have demanded statements from the company yearly, have passed ordinances yearly, and provoked and endured an expensive litigation to establish rates higher than or the same as those which already existed. ”

“ At the time of the contract it would have taken many times 10 inches under a 4-inch pressure to furnish water for domestic purposes to even the few thousand people who were then inhabitants of the city; and much more than that amount was necessary to supply free water under the contract; and a solemn covenant to supply a growing city with sufficient water for domestic and municipal purposes for thirty years from a flow of 10 inches under a 4-inch pressure would have been absurd. ”

“ The rates of compensation for use of water to be collected by any person, company, or corporation in said city shall be fixed annually by ordinance, and shall continue in force for one year, and no longer. Such ordinance shall be passed in the month of February of each year, and take effect on the 1st day of July thereafter. Should the council fail to pass the necessary ordinance fixing the water rates within the time hereinbefore prescribed, it shall be subject to peremptory processes to compel action at the suit of any party interested.' Stat. ”

“ The contract only purports to bind the city in its corporate capacity,-the city as landlord and owner, and not as a governmental agent of the state; (2) the city did not have power to bind the state; (3) the provision of the contract, restraining the city from granting any other franchise, if it created an exclusive franchise, invalidated the whole contract; (4) the act of 1870, purporting to ratify the contract of 1868, is unconstitutional and void; (5) the water company has no power under its charter to collect water rates, except as prescribed by the Constitution and statutes of the state ”

“ Acquiescence in a regulation which, all things considered, may not have been injurious, does not preclude a contest of that which is injurious. It must be remembered that the contract did not forbid all regulation, but only regulation beyond a certain limit. ”

“ The plaintiff had already reserved a sum to be paid by defendant for the privilege of vending water for domestic purposes, and it could not change its contract in the manner proposed. The privileges granted by the lease and the ordinance of 1868 were already vested in the defendant as strongly as they could be by a license under the ordinance of 1879. A license is a grant of permission or authority. The defendant already had permission and authority granted by ordinance and ratified by the legislature. ”

“ We understand the argument to be that the power, if not expressly given will not be presumed unless necessarily or fairly implied in or incident to other powers expressly given,-not simply convenient, but indispensable to them. In other words, the rule of strict construction is invoked against the grant of such power to the city. ”

“ To meet the increased demands upon it for water under said contract, said company has, among other things, purchased the system known as the 'Beaudry System of Waterworks,' and also certain water rights in the Arroyo Seco, and conducted water from the Arroyo Seco into the city on the east side of the Los Angeles river, and has been furnishing the inhabitants of that portion of the city with water from said system, and also acquired the stock of the corporation known as the East Side Spring Water Company,-the same mentioned in paragraph 10 of the complaint. ”

“ Cal. 1881, p. 54.
'In the year 1888 the electors of the city of Los Angeles, pursuant to provisions of the Constitution of said state authorizing them so to do, adopted a charter for said city, which charter was, under the provisions of said Constitution, submitted to the legislature of said state for its approval, ratification, and adoption, and the said charter was, on the 31st day of January, 1889, adopted by said legislature, and thereupon became and ever since has been the charter of the said city of Los Angeles ”

“ It seems to me too plain to require argument, that the purchase by the plaintiff was strictly and directly within its powers, and contributed necessarily and directly to its objects and purposes.' But the learned commissioner who delivered the opinion also said: 'If any connection could be traced between the plaintiff and the passage of the special act of 1872, or it appeared that the act was obtained for the purpose of evading the constitutional inhibition, I could see how the case of San Francisco v. ”