Kahn v. East Bay Municipal Utility District

notice of its intended decision denying the petition. After a delayed settlement of findings, judgment was entered. Petitioner’s motion for new trial was denied, and this appeal ensued. The record reflects the following facts.

On April 2, 1969, two of the district directors, who constituted the finance committee, filed a memorandum containing a summary of a “Recommended Financing Plan” for the five-year period from July 1, 1969, through June 30, 1974, which had been prepared by the finance department of the district. The plan recommended: (1) Continuation of the current basic tax rate of 16.3 cents; (2) borrowing for selected projects in an amount then estimated at $21.6 million; and (3) adoption of a new water rate structure to become effective November 1, 1969, to provide an overall 18 percent increase in water revenue.

The plan in its financial forecast for the five-year period noted that there presently existed a $25.1 million surplus at existing water rates, after providing for operations and debt service, and that the total construction program of $66.9 million left the sum of $4i.8 million needed to carry out the construction program in full. The plan recommended financing this amount by borrowing $21.6 million, increasing the water revenues by 18 percent to raise $17 million and leaving $3.2 million unprovided for.

In a section labeled “Tax Rate” the summary noted: “At the informal direction of the Board of Directors, the District staff conducted a study of an appropriate relationship between water and tax revenues. Based on the principle that the portion of the total District costs applicable to fire protection should be borne by property owners (taxpayers) rather than water consumers, they determined the percentage of water and tax revenue which should be obtained from each of those sources.” (Italics added.)

In a section labeled “Water Revenue Increase” the plan noted: “We recommend an 18% increase in water revenue, which is estimated will provide an additional $17 million during the five-year period. As shown in the financial forecast on the preceding page, this new revenue plus the $21.6 million of borrowed funds should adequately provide the additional financing required. It may be noted that $3.2 million, which is 10% of the estimated construction by contract, is not provided. We believe that this is a reasonable approach based on past experience of actual, as compared to programmed, expenditures.”

The finance committee stated, “We have asked the staff to proceed with the development of a suggested rate structure to accomplish the desired revenue increase, and to indicate how various classes of customers would

be affected. We expect to recommend these rates to the Board in September.”

On September 16, 1969, the general manager of respondent utility district filed with the board a report and recommendation for the 1970-1974 fiscal years to the effect that the total financing required was $45.8 million. He recommended that approximately $23.3 million be borrowed and $22.5 million obtained by increased water revenues, and noted this was 24 percent more revenue than would be realized under the existing rates.

The report noted, “As to increased District water rates, it may be noted that this will be the first instance of an increase in water rates in District history, and the first rate revision of any kind since 1953 when water rates were reduced.” It continued, “The District staff has developed a revised water rate structure designed to produce the needed additional revenue of $22.5 million during'the period ending June 30, 1974. It is recommended that the new rates be made effective with meter reading periods commencing on and after November 1, 1969.

“The recommended rate structure is based on a method currently employed by the California Public Utilities Commission in prescribing rates for water utilities. The basic purpose of this Commission technique is to set water rates which require the water user to pay for the cost of serving that user.

“The application of the Public Utilities Commission technique would result in a rate structure so materially different from the District’s existing rate structure that, in our view, it should be adopted in stages. Therefore the rate structure recommended for adoption at this time is the average of the existing rates increased by an across-the-board uniform percentage and the rates determined by the P.U.C. method.”

A public hearing upon this report and recommendation of the general manager was held on October 14, 1969, and various persons, including petitioner, appeared and were heard by the board. Some argued that the proposed rate increase was too high; some argued that the present increase was all right, but future increases would not be; and petitioner argued that the rate increases were too low. After hearing the objections the board overruled and denied them and by resolution No. 24976, the report and recommendation of the general manager was accepted and approved as filed, and the recommended rates and charges Were made effective November 1, 1969.

Approximately nine months later, on August 25, 1970, the board of directors enacted resolution No. 25366. They found that the revenues of

the district would not be sufficient to pay its expenses, and therefore, imposed an ad valorem property tax on all property within the district for the fiscal year beginning July 1, 1970, and ending June 30, 1971. The rate of tax was fixed at 14.7 cents per $100 assessed valuation on property located in Alameda County, and 15.6 cents per $100 of assessed valuation on property in Contra Costa County. A copy of the resolution establishing the tax rates was transmitted to the two counties on August 26, 1970, and one week later petitioner commenced this action.

Petitioner predicates his action on the general proposition expressed in Manjares v. Newton (1966) 64 Cal.2d 365 [ 49 Cal.Rptr. 805 , 411 P.2d 901 ], as follows: “That mandate will lie whenever an administrative board has abused its discretion is a rule so well established as to be beyond question.” (64 Cal.2d at p. 370. See also Sanders v. City of Los Angeles (1970) 3 Cal.3d 252 , 261 [ 90 Cal.Rptr. 169 , 475 P.2d 201 ]; Walker v. County of Los Angeles (1961) 55 Cal.2d 626 , 639 [ 12 Cal.Rptr. 671 , 361 P.2d 247 ]; City and County of S.F. v. Boyd (1943) 22 Cal.2d 685 , 690 [ 140 P.2d 666 ]; and McLeod v. Board of Pension Commissioners (1970) 14 Cal.App.3d 23 , 27 [ 94 Cal.Rptr. 58 ].) He contends that the provisions of section 12809 (fn. 1 above) require the district to fix rates and charges for water which will render the district self-supporting, that the board failed to perform a duty imposed by law by setting the rates too low, and that the resulting tax is therefore illegal.

The trial court found that petitioner had an adequate remedy at law for the recovery of his taxes, and that he failed to avail himself of it. Sections 5136-5138 of the Revenue and Taxation Code provide for the payment of taxes under protest and for actions to recover such sums. Sections 5096 and 5099 authorize the refund of taxes which are found to be erroneously or illegally collected. It is generally held that these provisions preclude any attack on the legality of a tax by way of a writ of mandamus because the legal remedy of paying the tax under protest and seeking a refund is adequate. (See Star-Kist Foods, Inc. v. Quinn (1960) 54 Cal.2d 507 , 511-512 [ 6 Cal.Rptr. 545 , 354 P.2d 1 ]; Security-First Nat. Bk. v. Bd. of Supervisors (1950) 35 Cal.2d 323 , 327 [ 217 P.2d 948 ]; Vista In. Dist. v. Board of Supervisors (1948) 32 Cal.2d 477 , 478 [ 196 P.2d 926 ]; Sherman v. Quinn (1948) 31 Cal.2d 661 , 665 [ 192 P.2d 17 ]; Tivens v. Assessment Appeals Bd. (1973) 31 Cal.App.3d 945 , 947-948 [ 107 Cal.Rptr. 679 ]; and Jillson v. Board of Supervisors (1963) 221 Cal.App.2d 192 , 194-195 [ 34 Cal.Rptr. 419 ]. Cf. Lockhart v. Wolden (1941) 17 Cal.2d 628 , 633 [ 111 P.2d 319 ]; Eisley v. Mohan (1948) 31 Cal.2d 637 , 640-642 [ 192 P.2d 5 ];

and People v. Superior Court (1970) 13 Cal.App.3d 672 , 676 [ 91 Cal.Rptr. 651 ].) In Sherman v. Quinn, supra, the court stated, “. . . an adequate procedure is provided by statute whereby taxes erroneously levied and collected may be refunded, together with interest therein, upon a claim therefor. [Citations.]” (31 Cal.2d at p. 665.) The court also observed, “ ‘The prompt payment of taxes is always important to the public welfare. It may be vital to the existence of a government. The idea that every taxpayer is entitled to the delays of litigation is unreason.’ (Springer v. United States, 102 U.S. 586 , 594 . . . , cited with approval in People v. Skinner, 18 Cal.2d 349 , 355 . ..)” (Id.)

Petitioner seeks to avoid the effect of the foregoing decisions on several grounds. He points out that no action at law will lie to force the district to increase its water charges and rates as he contends the statute requires it should, and that therefore the interrelation between the water rates and the tax rates warrants an action by application for an extraordinary writ. Secondly, he contends that the limiting doctrine does not apply where the entire levy is invalid, and that a class action will be entertained, when, as here, the amount involved with each taxpayer is small.

In Lockhart v. Wolden, supra, an assessment which disregarded the right of a woman to a veteran’s constitutionally provided exemption was ordered canceled on a petition for writ of mandamus. The court opined that the legal remedy was inadequate because at that time no interest could be recovered in an action for refund of a wrongfully collected tax. (17 Cal. 2d at p. 633.) In Star-Kist Foods, Inc. v. Quinn, supra, however, the court clearly indicated that the Lockhart case should not be followed since interest could be recovered under provisions subsequently enacted in section 5141 of the Revenue and Taxation Code (54 Cal.2d at p. 512).

In Lockhart the court also noted, “Though we recognize that the interest item upon this particular assessment is small, it becomes very substantial when the rights of taxpayers situated similarly to petitioner are taken into consideration. Any other procedure would involve a multiplicity of suits, for the question as to the right to the exemption here claimed by petitioner applies to other women veterans in California—petitioner alleges there are approximately two thousand—in the same way as to petitioner. Thus this situation appears to be of considerable public importance, and the fact that complete and final relief may be given to this group of taxpayers by the issuance of a single writ further fortifies petitioner’s argument supporting the propriety of this particular proceeding.” (17 Cal.2d at p. 633.) Petitioner asserts that this language has not been overruled and authorizes the use of a writ of mandamus in this case where a vast group of taxpayers

is affected. (Cf. Knoff v. City etc. of San Francisco (1969) 1 Cal.App.3d 184 , 199 [ 81 Cal.Rptr. 683 ]; and People v. Superior Court, supra, 13 Cal.App.3d 672 , 676.) He contends that the recognition of the benefits of class litigation (see Vasquez v. Superior Court (1971) 4 Cal.3d 800 , 807-810 [ 94 Cal.Rptr. 796 , 484 P.2d 964 ]; and Beckstead v. Superior Court (1971) 21 Cal.App.3d 780 , 783-784 [ 98 Cal.Rptr. 779 ]), and the extension of the right of a taxpayer to bring an action to restrain illegal expenditures or other illegal action by a governmental body (see Code Civ. Proc., § 526a; Blair v. Pitchess (1971) 5 Cal.3d 258 , 267-269 [ 96 Cal.Rptr. 42 , 486 P.2d 1242 , 45 A.L.R.3d 1206 ]; Knoff v. City etc. of San Francisco, supra, 1 Cal.App.3d 184 , 198-199; Lagiss v. County of Contra Costa (1963) 223 Cal.App.2d 77 , 92 [ 35 Cal.Rptr. 450 ]; and Schaefer v. Berinstein (1956) 140 Cal.App.2d 278 , 289 [ 295 P.2d 113 ]), demonstrate that the action for a writ of mandamus should be entertained in this case.

It is unnecessary to determine to what extent an exception should be made to the general rule that the existence of an action at law to recover a refund precludes resort to an extraordinary writ to attack the alleged illegal or erroneous levy of a tax. The public policy in preserving the fiscal integrity of the government so it will not grind to a halt is strong. In this case, however, the taxpayer did not seek to deprive the district of its revenues. In one action he was attempting to secure an order directing the district to secure the necessary funds in the manner he contends the law provides. For this reason, the interrelation of the tax rate and the rates for charges for water, the petition properly should have been maintained.

The record reflects that after the action was commenced the taxes were collected and paid over to the district. At the time of trial it would have been impossible to delete or cancel the levy for the 1970-1971 fiscal year. In Treber v. Superior Court (1968) 68 Cal.2d 128 , the court concluded: “. . . it has been judicially established that the applicant for a writ of mandate must also show that the respondent has a present duty to perform the act he seeks to compel. [Citation.] Although this rule is most commonly invoked in denying an application to compel the performance of future acts [citations], it is equally applicable to acts which it is too late to perform [citation]. Thus mandate does not lie when the respondent no longer has the legal authority to discharge the alleged duty because the time for doing so, as specified by statute or ordinance, has expired. [Citations.]” (68 Cal.2d at p. 134. See also Stracke v. Farquar (1942) 20 Cal.2d 82 [ 124 P.2d 9 ]; Rice v. McClellan (1927) 202 Cal. 650 , 654 [ 262 P.

1092 ]; 5 Witkin, Cal. Procedure (2d ed. 1971) Extraordinary Writs, § 67, pp. 3845-3846; and Cal. Civil Writs (Cont.Ed.Bar 1970, No. 47) p. 77.)

Petitioner urges that the foregoing precedent should not be deemed controlling because the court in this action could order the district to refund the alleged illegally levied and collected taxes to the taxpayers within the district. The respondents contend that the sums collected have been consumed by expenses occurred in the operations of the district. Petitioner asserts that so far as the record is concerned, the district ended up its operations for the fiscal year 1970-1971 with a sum approximately equal to that allegedly erroneously collected from the taxpayers, and that, in any event, the court could order an increase in rates to pay the tax refunds and thereby place the burden of the operations on the users where it should be under applicable law.

In support of his- views, the petitioner relies upon an analogy to section 4986 of the Revenue and Taxation Code which since 1970 (Stats. 1970, ch. 129, § 3, p. 357) has empowered a board of supervisors to cancel an erroneous assessment whether the taxes have been collected or not. He also refers to City of Los Angeles v. Public Utilities Commission (1972) 7 Cal. 3d 331 [ 102 Cal.Rptr. 313 , 497 P.2d 785 ], in which the reviewing court, on finding a rate increase invalid, ordered the utility to refund the increased amounts collected to its customers (7 Cal.3d at p. 359). In this case, however, it is too late to unscramble the eggs. There is no true surplus from the total amount collected by taxes and water charges for the overall long run operations of the district. Petitioner has conceded, “Respondent is correct insofar as it has no authority to alter retrospectively the 1970-1971 water rates, or to adjust the tax rates for fiscal year 1970-1971.” Any attempt to readjust at this time by increase in the water rates would not insure that the 1970-1971 users, who enjoyed lower rates by reason of the tax revenues, would pay. It would be current consumers who would be penalized. It is concluded that the matter is moot insofar as awarding tangible relief to the petitioner, and those he purports to represent, is concerned.

On the other hand, petitioner is on firmer ground when he seeks to preserve jurisdiction because the matter involves the construction of a statute of statewide import, because the question of the extent to which taxes may be resorted to for the support of the operations of a municipal utility district is an ongoing one, because the respective rights and obligations of the consumers and property owners within such districts are involved, and because a failure to resolve the substantive questions presented in this action will but lead to further litigation. Under these circumstances

the proceedings should not be dismissed but should be adjudicated on the merits. (See Ballard v. Anderson (1971) 4 Cal.3d 873 , 876-877 [ 95 Cal.Rptr. 1 , 484 P.2d 1345 , 42 A.L.R.3d 1392 ]; Diamond v. Bland (1970) 3 Cal.3d 653 , 657 [ 91 Cal.Rptr. 501 , 477 P.2d 733 ] [cert. den. (1971) 402 U.S. 988 ( 29 L.Ed.2d 153 , 91 S.Ct. 1661 ), reh. den. (1971) 404 U.S. 874 ( 30 L.Ed.2d 120 , 92 S.Ct. 27 )]; and Kirstowsky v. Superior Court (1956) 143 Cal.App.2d 745 , 749 [ 300 P.2d 163 ].) It is, therefore, concluded that the proceedings should not be dismissed because they are moot.

I

n exercising its rate-making power under section 12809 the board was acting in a legislative capacity. “ ‘A legislative act is said to be one which predetermines what the law shall be for the regulation of future cases falling under its provisions, while a judicial act is a determination of what the law is in relation to some existing thing done or happened.’ (Wulzen v. Board of Supervisors, 101 Cal. 15 , 24 . . .) The fixing or refixing of rates for a public service is legislative, or at least quasi legislative. [Citations.]” (City Council v. Superior Court (1960) 179 Cal.App.2d 389 , 393 [ 3 Cal.Rptr. 796 ]. See also Wilson v. Hidden Valley Mun. Water Dist. (1967) 256 Cal.App.2d 271 , 286-288 [ 63 Cal.Rptr. 889 ].) The parties agree that the legislative action of a local agency is subject to review to determine whether the agency’s action has been arbitrary, capricious, entirely lacking in evidentiary support, or otherwise unlawful. (Pitts v. Perluss (1962) 58 Cal.2d 824 , 833 [ 27 Cal.Rptr. 19 , 377 P.2d 83 ], See also Bixby v. Pierno (1971) 4 Cal.3d 130 , 137, fn. 2 [ 93 Cal.Rptr. 234 , 481 P.2d 242 ]; Wilson v. Hidden Valley Mun. Water Dist., supra, at p. 286; Bowles v. Antonetti (1966) 241 Cal.App.2d 283 , 286-287 [ 50 Cal.Rptr. 370 ]; Emby Foods, Inc. v. Paul (1964) 230 Cal.App.2d 687 , 694 [ 41 Cal.Rptr. 365 ]; and Brock v. Superior Court (1952) 109 Cal.App.2d 594 , 605 [ 241 P.2d 283 ].)

Although section 12891 (see fn. 2) purports to give broad powers to tax, that power is not unlimited. In In re Williams (1934) 137 Cal.App. 444 [ 30 P.2d 591 ], the court struck down the levy of a license tax to provide funds for a public utility district. The court stated, “It plainly appears that no one of the subdivisions of section 30 [Stats. 1921, ch. 560, p. 906, at § 30, p. 918, precursor of § 16641] is intended to be an absolute grant of power in itself, but that each is intended to be taken in connection with the others and with the other sections of the act.” (137 Cal.App. at p. 446.) In levying the taxes involved here the board found, as is required by section 12892 (fn. 2 above), that the revenues from rates and charges would not be sufficient for any and all lawful purposes of the district. This finding

Therefore, the pronouncements found in In re Orosi Public Utility Dist. (1925) 196 Cal. 43 , at page 59 [ 235 P. 1004 ], or in similar cases under the Public Utility District Act, are not controlling in this case. The amendments of the Municipal Utility District Act indicate a different legislative intent. (See Lambert v. Conrad (1960) 185 Cal.App.2d 85 , 95 [ 8 Cal.Rptr. 56 ].)

Nor do the prevailing wage cases apply to the provisions involved in the fixing of the rates and charges at issue in this case. In Walker v. County of Los Angeles (1961) 55 Cal.2d 626 [ 12 Cal.Rptr. 671 , 361 P.2d 247 ] the court found an abuse of discretion because there had been a failure to comply with charter provisions requiring the county to ascertain the prevailing wages and salaries in private industry for the purpose of fixing the wage rates for county employees. (55 Cal.2d at pp. 633-636. See also Sanders v. City of Los Angeles, supra, 3 Cal.3d 252 , 262; and City and County of S.F. v. Boyd, supra, 22 Cal.2d 685 , 690.) The course provided by those beacons fails to furnish a path to the solution of this case because the mandate to fix rates and charges so that the revenues shall enable the utility to be self-supporting, unless the board finds the rates unreasonably high, is not, as contended by petitioner, a command to fix the rates and charges according to prevailing rates and charges for water.

From the foregoing it is clear that the statute did not require the board to fix rates consistent with prices for water generally prevalent in other areas. Nevertheless, petitioner is entitled to show that the board had no evidence before it that the rates and charges higher than those fixed in October 1969, would be unreasonably high. In the recommended financing plan dated April 2, 1969, which led to the rates fixed in October 1969 and the taxes levied in August 1970, it was proposed, as emphasized in the statement of facts above, that the portion of the total district costs applicable to fire protection should be borne by the taxpayers rather than the water consumers. Petitioner seizes upon this declaration as showing not only that the board disregarded comparable water prices, but also arbitrarily evaded the statutory mandate that the rates and charges- should be fixed so as to produce revenues which would make the district, so far as possible, self-supporting.

In San Leandro v. Railroad Commission (1920) 183 Cal. 229 [ 191

P. 1 ], the court upheld rulings of the commission which prohibited private utilities from including in their rate structure for consumers the costs of operating and maintaining facilities for emergency demands of the public such as for extinguishing fires and flushing sewers. It approved the practice of charging such costs to the municipalities themselves, who, in turn, would raise the necessary revenue by taxation. (See 183 Cal. at pp. 235-236.) Petitioner observes that that precedent, enunciated one year before the Legislature provided for the creation of municipal utility districts and in a case involving a private utility, cannot bind the parties here. The question, however, is not whether the district was bound to raise such costs by taxation directly, without billing the municipalities who enjoyed the existence of such facilities, but whether the board could consider that the inclusion of such costs in the general rates and charges to private consumers would make the latter rates and charges unreasonably high. It not only is not arbitrary nor capricious to so conclude, but it would be unreasonable, under petitioner’s theory of comparative rates, to require the district’s consumers to bear the costs of fire protection while at the same time permitting, if not ordering, the private water companies to indirectly collect such costs from the taxpayers through charges to the municipalities.

Petitioner also urges that the portion of the general manager’s report and recommendation quoted above demonstrates that the board was expressly digressing from the Public Utilities Commission policy “to set rates which require the water user to pay for the cost of serving that user,” and by the same token was violating the statutory mandate of self-sufficiency. The fact that the board accepted the recommendation that the rate structure be adjusted to the foregoing principle in stages does not necessarily indicate that an attempt to do so in one jump would not have resulted in rates that were unreasonably high for the district. It is true that the failure to follow the statutory mandate in the past should not excuse further dereliction. Yet on the other hand the board in its discretion could well determine that a violent change in the rate structure would create unreasonably high rates within the district itself and cause dislocations which would affect all consumers.

Finally it should be noted that the trial court found, “The record of the hearings of Respondent’s Board on the setting of Respondent’s water rates and the fixing of Respondent’s tax rates amply discloses that Respondent’s Board had substantial evidence before it to support its decision both as to the water rate and the tax rate.” In their answer respondents alleged that at the hearing on rates October 14, 1969, “the District’s General Manager presented evidence both oral and in writing concerning the recommendations for increased water rates heretofore filed with the Board,

including a discussion of rates charged by other water utilities. Petitioner appeared and testified, and eight other persons appeared, some of the latter protesting the proposed rate increase as being too high, others saying it was acceptable but that further increases would not be. Two letters by water consumers within the District were presented to the Board protesting the proposed rate increase as being too high, a copy of said letters being attached to this answer, labeled Exhibit ‘E’ and incorporated by reference. After a full, fair and complete hearing, the Board accepted and approved the Report and Recommendation of the General Manager, found that such rates were reasonable, and fixed and established said rates to be effective November 1, 1969.” If there was “a discussion of rates charged by other water utilities” the district cannot be charged with having ignored or disregarded comparative rates.

Code of Civil Procedure section 1091 provides, “On the trial, the applicant is not precluded by the return from any valid objection to its sufficiency, and may countervail it by proof either in direct denial or by way of avoidance.” Under this section it is held that the failure to controvert the factual allegations of the answer permits the trial court to accept them as true. (See California Portland Cement Co. v. State Bd. of Equalization (1967) 67 Cal.2d 578 , 582, fn. 5 [ 63 Cal.Rptr. 5 , 432 P.2d 700 ]; Hunt v. Mayor & Council of Riverside (1948) 31 Cal.2d 619 , 623 [ 191 P.2d 426 ]; Lotus Car Ltd. v. Municipal Court, supra, 263 Cal.App.2d 264 , 268-269; Most v. First Nat. Bank of San Diego (1966) 246 Cal.App. 2d 425 , 432 [ 54 Cal.Rptr. 669 ]; Day v. City of Los Angeles (1961) 189 Cal.App.2d 415 , 418 [ 11 Cal.Rptr. 325 ]; and Kimberlin v. L.A. City High School Dist. (1953) 115 Cal.App.2d 459 , 464 [ 252 P.2d 344 ].) As has already been noted, petitioner’s offer of proof concerning comparable rates was properly rejected because it attempted to introduce extrinsic evidence. Although the record shows that petitioner was present at the rate hearing, and in fact addressed the board to complain of the low rates, he did not at the trial offer to prove that the quoted allegations of the answers were false. The allegations therefore sustain the findings which petitioner now attacks.

Evidence Code section 664 provides in part: “It is presumed that official duty has been regularly performed. . . .” (See Lagiss v. County of Contra Costa, supra, 223 Cal.App.2d 77 , 95.) This presumption affects the burden of proof and placed the burden on the petitioner to show that such duty was not regularly performed. (See Evid. Code, §§ 605-606.) “When the right to enact a law depends upon the existence of a fact, the passage of the act implies, and the conclusive presumption is, that the Legislature performed its duty and ascertained the existence of the fact

before enacting and approving the law—a decision which the courts have no right to question or review. [Citations.]” (Porter v. City of Riverside, supra, 261 Cal.App.2d 832 , 836. See also Lagiss v. County of Contra Costa, supra, 223 Cal.App.2d at p. 95.)

This is not a case where there is “indisputable proof from the board’s own records that it did not in fact ascertain” that higher rates would be unreasonably high. (Cf. Walker v. County of Los Angeles, supra, 55 Cal. 2d 626 , 636.) Nor is it a case where any action taken—in fixing the rates and levying the taxes—“shows on its face or in its results an improper purpose, motive or intent.” (Cf. Trujillo v. City of Los Angeles (1969) 276 Cal.App.2d 333 , 338 [ 81 Cal.Rptr. 146 ].) Petitioner’s attempt to show bad faith, by comparing the results of the action fixing the rates with rates charged by other purveyors of water, founders because the vessel in which it is embarked—his interpretation of the statute—is not sustained by the law.

The judgment is affirmed.

Molinari, P. J., and Elkington, J., concurred.

A petition for a rehearing was denied September 23, 1974, and the opinion was modified to read as printed above. Appellant’s petition for a hearing by the Supreme Court was denied October 30, 1974.