This is a bill in equity brought in the circuit court against the board of supervisors of San Diego county and others for the purpose of having certain water rates which have been fixed by the board, declared void. It is alleged that the rates are so low as to amount to a taking of the plaintiff's property without due process of law. The circuit court decided that it did not appear that the rates would have that effect, and dismissed the bill, whereupon the plaintiff appealed to this court.
By a statute of California approved March 12, 1885, the board of supervisors of the counties are to fix the maximum water rates in cases like the present. They are authorized to proceed to a hearing upon a petition of twenty-five inhabitants who are taxpayers, and the rates when fixed are to be binding for not less than one year. Subject to that limitation they may be re-established or abrogated upon a similar petition, or a petition of the water company subjected to the regulation. The rate was fixed in this case upon a petition of twenty-five taxpayers. The present bill made the petitioners parties, as well as the board, and alleged that they were not water takers, but were induced to petition by the consumers, in order that the latter might not admit that any rates other than those originally fixed by the company could be established by anyone. The petitioners, after a demurrer by them to the bill was overruled, failed to answer, and the bill was taken pro confesso as against them. On these facts, before coming to the merits, the appellant contends that this bill should not be dismissed. It says that the only parties in interest have made default, and that the ordinance regulating the rates was procured by a fraud upon the supervisors, with the consequence, we suppose it to be intended, that the ordinance should be set aside on that ground without going further into the case.
The preliminary objections may be disposed of in a few words. The default of the petitioner is relied upon as the ground of expressions in one or two cases here and elsewhere, that the duties of the supervisors are judicial in their nature. Spring Valley Waterworks v. Schottler, 110 U.S. 347, 354, 28 L. ed. 173, 176, 4 Sup. Ct. Rep. 48; Jacobs v. San Francisco, 100 Cal. 121, 130, 34 Pac. 630. The conclusion drawn is that when the original plaintiffs disappear, the case is at an end. We need not stop to consider to what extent or for what purposes the proceedings before the supervisors properly may be termed judicial. See, further, San Diego Land & Town Co. v. National City, 174 U.S. 739, 750, 43 L. ed. 1154, 1159, 19 Sup. Ct. Rep. 804; Cambridge v. Railroad Comrs. 153 Mass. 161, 171, 26 N. E. 241. It is obvious that they are not so in such a sense as to do the appellant any good. The petitioners did not complain of injury to any private interest of theirs. They had none. They appeared on behalf of the public only, and asked purely legislative action in the form of a general rule for the future to govern the public at large. San Diego Land & Town Co. v. National City, 43 L. ed. 1154, 1159, 19 Sup. Ct. Rep. 804; Spring Valley Waterworks v. San Francisco, 82 Cal. 286, 6 L. R. A. 756, 22 Pac. 910, 1046; Smith v. Strother, 68 Cal. 194, 8 Pac. 852; Janvrin, Petitioner, 174 Mass. 514, 47 L. R. A. 319, 55 N. E. 381. As soon as such a rule was established, if not as soon as a hearing was begun, the petitioners were merged in the public affected by the rule. The present bill is an independent proceeding to have the ordinance declared void. In such a case the body making the regulation is the usual, proper, and sufficient party respondent, and the default of those who set the original proceedings in motion is immaterial, so long as it defends the case.
The charge that there was a fraud practised on the board hardly deserves mention, except for the undue warmth with which it has been pressed. There are no allegations in the bill sufficient to open the question. The board is here adhering to and defending its action, professing still to be satisfied. There is no indication of fraud or attempt at fraud. The course adopted was adopted for reasons which appear on the face of the bill, the situation was made plain at the hearing before the supervisors, and we see no evidence that the parties did more than exercise their legal rights.