Frost v. City of Los Angeles

This is an action to enjoin the city of Los Angeles and certain officers constituting its board of public service from continuing to supply water from the Los Angeles aqueduct to its inhabitants for domestic uses. The court, after an elaborate trial, gave findings and judgment for the defendants. The plaintiff appeals.

The complaint sets forth that the city has constructed an aqueduct whereby it carries water from the Owens Eiver, in the counties of Mono and Inyo, for a distance of two hundred miles to Los Angeles, and there distributes the same for domestic use to its inhabitants, including the plaintiff and his family; that said water is polluted and unfit for human consumption and that the city is so furnishing it without having obtained any permit to do so from the board of health of the state of California. The claim of the plaintiff is twofold. First, that the supplying of unfit water, such as that described, for domestic use, is per se a public nuisance, and, second, that the city is without authority to furnish any kind of water for public use unless it has.first obtained a permit . from the state board of health. For the latter point plaintiff relies on the statute providing that the continuation of such supply may be enjoined at the suit of any person who receives water of that character for domestic use from the person sought to be enjoined. (Stats. 1913, p. 793.) ■

The court expressly found that the water furnished and supplied by the city through its aqueduct and distributing system “is safe, wholesome, sanitary, healthful, potable, and fit for human consumption,” and, further, that the city was not supplying to the plaintiff for domestic or other uses any water that was not fit for human consumption. These findings are fully supported by the great preponderance of the evidence. Indeed, it may be said that the evidence to the contrary is so inconsiderable that there is no serious conflict.

In view of these findings it is clear that the court was justified in refusing to grant any relief based upon the theory that the plaintiff as a private individual was maintaining an action to abate or enjoin a condition which constituted a public nuisance. “A private person may maintain an action for a public nuisance, if it is specially injurious to himself, but not otherwise.” (Civ. Code, sec. 3493.) [1] To entitle a party to sue to enjoin a public nuisance he must allege and prove facts showing that it causes special injury to him

The only foundation upon which the plaintiff can sustain his action is found in the act of 1913, aforesaid. This act makes it unlawful for any person or corporation, private or municipal, to furnish water to any person, for domestic uses, “which is polluted or dangerous to health.” It requires any person or corporation desiring to furnish water for domestic use, or, being already engaged in that business, who desires to continue so doing, to apply to the state board of health for permission to do so; directs that an investigation of the plant and water supply may be made and that hearings may be had at the expense of the petitioner, whereupon if the board finds that the ‘water to be furnished is of a character which does not endanger the lives or health of human beings, and that it is, under all the circumstances and conditions, the purest and most healthful water obtainable or securable, it shall grant permission for such applicant to furnish, or continue to furnish, such water. The clause upon which the right of the plaintiff to maintain this action depends is, in effect, that any person or corporation whose supply of water for human consumption or domestic use is taken or received from any person or corporation, municipal or private, engaged in such water furnishing business without having an unrevoked permit to do so as provided in the act, may maintain an action to enjoin such water furnishing person or corporation from furnishing or continuing to furnish water for such purposes, or that it or he may be enjoined at the suit of the state board of health in the same manner.

The respondent contends that this act is unconstitutional so far as it applies to Los Angeles, and also that it is unconstitutional on general grounds as an unreasonable exercise of the police power.

[2] We are of the opinion that the statute of 1913, so far as it provides for the injunction aforesaid, is unconstitutional because it authorizes an unreasonable exercise of the police power of the state. It provides that every person, private corporation, or municipality engaged in furnishing water for human consumption and having over 250 service connections,

The act gives the board no discretion. No matter how pure and healthful, short of absolute perfection, the water supply may be, nevertheless, if better water can be obtained by any expenditure of money and effort of which the purveyor to the public use is capable, the permit must be refused; the board has no power to grant any permission; the continuance of the water service at once becomes a public nuisance; it is the bounden duty of the proper state officials to immediately stop it, and any consumer forthwith is invested with the right and power to maintain an action to enjoin the continuance of such water service.

It seems obvious from the mere statement of the case that such a law, at least so far as it applies to a water service already in operation, must be held to be unreasonable and

[3] The legislature is possessed of the entire police power of the state, except as its power is limited by the provisions of the constitution. But it cannot, under the guise of the police power, unreasonably interfere with a lawful and useful occupation or business which is not inherently, or because of the manner in which it is carried on, injurious to persons or property, or to the public health, convenience, comfort, safety, or morals. (Ex parte Whitwell, 98 Cal. 73 , 81, [ 35 Am. St. Rep. 152 , 19 L. R. A. 727 , 32 Pac. 870 ]; Ex parte Sing Lee, 96 Cal. 354 , [ 31 Am. St. Rep. 218 , 24 L. R. A. 195 , 31 Pac. 245 ]; Los Angeles v. Hollywood Cem. Assn., 124 Cal. 349 , [ 71 Am. St. Rep. 75 , 57 Pac. 153 ]; Ex parte McCapes, 157 Cal. 29 , [ 106 Pac. 229 ]; In re Dart, 172 Cal. 59 , [Ann. Cas. 1917D, 1122, L. R.

[5] The subsequent policy of the legislature indicates that it was of the opinion that this particular prohibition of the law was invalid. The legislature of 1915 amended the law [Stats. 1915, p. 1282] by eliminating the clause providing that no permit shall be granted unless the water being furnished

[6] The appellant answers the objections to this clause of the law by the suggestion that if it should be found unconstitutional, that clause can be eliminated without destroying the entire section and that without it the statute is valid and enforceable. This point is without merit. It cannot be supposed that the state board would issue a permit in the face of such an imperative mandate against it or that any municipality or person in the state would expect to be able to obtain a permit from a state board which was forbidden to issue it under the circumstances existing. To direct that an injunction should issue under such circumstances because by eliminating a material portion of the law it could be made valid would be in the nature of judicial legislation of a retroactive character.

There is another reason which fully justifies the affirmance of the judgment. We have said that a private person cannot maintain an action to enjoin a public nuisance unless it is specially injurious to himself. The plaintiff in this case is taken out of the operation of this rule solely because of the permission given to him by the state in this act to maintain this action on its behalf, without showing special injury to himself. The state may, of course, grant this permission to any citizen to act in its behalf. But it must be presumed that the legislature did not intend to change in any other respect the principles of equity regarding injunctions, and consequently that when a citizen applies to a court of equity for relief, under such authority, his rights are no greater with respect to the merits of the ease and the duty of a court of equity to grant relief, than in any other action of equitable cognizance. The general principles of equity governing the issuance of in

In this case the right of the plaintiff, such as it is, is wholly technical and unsubstantial, and to enforce it would produce very great mischief, both public and private, not only to himself, but to many of his fellow-citizens within the city, and to the municipality as well. The court in its discretion was fully authorized to deny the injunction under such circumstances.

The judgment is affirmed.,

Olney, J., Wilbur, J., Lennon, J., Melvin, J., Angellotti., C. J., and Lawlor, J., concurred.