Stephen Johnson Field

“ The necessity or expediency of the appropriation is not a matter for judicial inquiry. The supplying of pure water to a city and its inhabitants is a matter of public concern. The taking of water held by private parties for that purpose is an appropriation of it for a public use; and the same conditions for its lawful appropriation must be followed as when property of a different character is thus taken. There must be the just compensation for it to the owner, and the impartial tribunal to appraise its value and determine the amount of the compensation. ”

“ Interested as its members are, as consumers of the water, as agents of the city, also a large consumer, and elected by constituents, every one of whom is a daily consumer, it is wanting in every essential particular to render it, in a legal sense, an impartial tribunal. If, therefore, as I have attempted to show, and I think have shown, the water of the plaintiff is its property, and when it is taken under the law of the state for public use, the plaintiff is entitled to just compensation, that board is incompetent to act in determining what that compensation shall be. ”

“ Watever may be the differences of opinion as to the ownership of running waters, or of waters of navigable streams, or of lakes, it has never been doubted that water collected by individual agency, from the roof of one's house, or in hogsheads, barrels, or reservoirs, as it descends from the clouds, is as much private property as anything else that is reduced to possession which otherwise would be lost to the uses of man. ”

“ Admitting for the argument that the meaning of the provision is only that the company shall have an impartial tribunal, and not necessarily the one created as designated, it seems to me to be plain that such new tribunal cannot consist of the city authorities, against whose exclusive control the original contract expressly stipulated. Placing the regulation of rates with them is not furnishing another tribunal equally impartial with the one mentioned. From the very nature of its creation and its relation to others, the board of supervisors, an elective body, cannot be impartial. ”

“ Private corporations, by the constitution of California, can be formed only under general laws, but all that is embraced by a general law of that character may not necessarily be a part of the contract of incorporation of parties forming themselves into a corporate body under it. It may refer to matters having no relation to corporate bodies, such as rules of evidence, forms of procedure, or descent of property; and it may contain contracts for specific work by the corporation created. ”

“ And yet this body, which, without any imputation upon the personal integrity of its members, but out of regard to the common weakness of humanity, the community will not trust in other matters without guards against its improvidence, and which is exposed to every influence which can warp its judgment and pervert its action, is allowed almost unlimited control over the property of the plaintiff and the compensation to be paid for it, and respecting which the plaintiff is not permitted to be heard except as a matter of favor. ”

“ With it, every plant will thrive, even in the sand, and shrubs and trees will grow in great luxuriance. The absence of water from them for even a few months will cause the plants and shrubs to droop, wither, and perish. The public squares of the city are numerous, and the park-termed the 'Golden Gate Park,' because it is near the entrance of the bay which is termed the 'Golden Gate'-covers more than a mile square of these sand hills. On these squares and this park the constant use of water from the reservoirs of the plaintiff is necessary to keep the grasses, plants, and shrubs alive. ”

“ Whatever power the state may possess over corporations in their creation or in passing or amending the laws under which they are formed and altered, it cannot withdraw them from the guaranties of the federal constitution. As I said on another occasion: 'The state cannot impose the condition that the corporation shall not resort to the courts of law for the redress of injuries or the protection of its property ”

“ Behind the artificial body created by the legislature stand the corporators, natural persons, who have united their means to accomplish an object beyond their individual resources, and who are as much entitled, under the guaranties of the constitution, to be secured in the possession and use of their property thus held as before they had associated themselves together. ”

“ The influence thus exerted to warp the judgment of the members and change the character of the body from that of an impartial tribunal to one acting in the interest of its constituents, every practical man dealing with the corporation would appreciate and act upon. All the influences usually brought to bear at elections to secure the choice of those who will carry out the wishes of the voters, we should expect to see applied to secure the election of candidates thus empowered to fix the price of the article which the voters daily consume. ”

“ Any five or more persons in California can, at any time, form themselves into a corporation to bring water into the city and county of San Francisco on the same terms with the plaintiff; and such new corporation can, in the same way, form reservoirs in the ravines in the hills and collect water for sale, or bring water from the mountain lakes. ”

“ If, in the light of these decisions, we turn to the board of supervisors of San Francisco, it would seem impossible for us to hesitate in declaring that in no respect can it be deemed an impartial tribunal, however honest its members may personally be, to determine the compensation which the owners of the water delivered to the city and its inhabitants should receive. ”

“ But whatever property the corporation acquires in the exercise of the capacities conferred, it holds under the same guaranties which protect the property of individuals from spoliation. It cannot be taken for public use without compensation ”

“ Referring to the provision of article 29 of the declaration of rights of that state, 'that it is the right of every citizen to be tried by judges as fair, impartial, and independent as the lot of humanity will admit,' the court said: 'The provision rests upon a principle so obviously just and so necessary for the protection of the citizen against injustice that no argument is necessary to sustain it, but it must be accepted as an elementary truth. ”

“ It is difficult to understand how any just man, carefully considering what has been thus stated, can hold that the board constitutes an impartial tribunal such as the law of 1858 assured the plaintiff, as an inducement for its large expenditures, it should always have to determine what rates are reasonable. ”

“ Objections are often made in the courts of law to the reports of commissioners of appraisement, upon application to set them aside, on the ground that the members have been improperly influenced by others, and have allowed their judgment to be warped by solicitations, or by prejudice or partisanship, and when such objections have been sustained by proper proofs the reports have been adjudged invalid. ”

“ When the general character of the decision in the Dartmouth College Case became known, the states acted very generally upon the suggestion of Judge STORY, and few charters were subsequently granted without a clause reserving to the legislature the power to alter or repeal them. In some instances a general law was enacted, declaring that all corporations subsequently created should be subject to this reserved power; and in some cases, where a new constitution was adopted by a state, a clause of similar import was inserted. ”

“ There are other uses for a much larger supply of water. The city is situated at the upper and of a peninsula whose width is only a little over six miles. The land there consists principally of a succession of sand hills, and the daily breezes of the ocean keep the sand in almost constant motion, except where vegetation has fixed its roots. ”

“ To such a declaration no one can reasonably object, and, if carried out with the observance of the rules which govern in other cases where private property is taken for public use, no legal obstacle can be raised to its enforcement. ”

“ Whatever the state may do even with the creations of its own will, it must do in subordination to the inhibitions of the federal constitation. It may confer by its general laws upon corporations certain capacities of doing business, and of having perpetual succession in its members. ”

“ And what we might thus expect has occurred at every election since the new constitution went into effect. A suit was recently brought by the plaintiff in the circuit court of the United States for the district of California against the mayor and supervisors of San Francisco to enjoin the passage of an ordinance, then proposed, to fix the price of its water under this new constitution. ”

“ So that language employed with respect to regulating compensation for the use of articles of a durable character, such as vehicles, cars, and roads, is inappropriate and misleading when applied to water used for domestic purposes, or for sprinkling streets, extinguishing fires, flushing sewers, and irrigating parks. ”

“ The company acquired the lands within this ravine and on its sides, amounting, as represented by counsel, to 18,000 acres, and erected in it heavy walls at long distances apart, thus making great reservoirs, into which the water was collected until lakes were formed extending several miles in length. ”