ficient that the deed recited the fact that this statement was contained in the certificate." Under the case just cited it would clearly have been sufficient if the deed had repeated the recital of the certificate. It did not do this, merely reciting, as has already been stated, that the certificate set forth "the time when the purchaser would be entitled to a deed." We think, however, that the reasoning in Hewes v. McLellan justifies the con | tion 47 as amended it appeared that the evidence had been taken before the Constitution and that the matter had been submitted and the had confirmed the amendment to that section, commission's decision made after such confirmation, and that the petitioner had waived any ob jection which might have been urged before such amendment. Held, that the court would consider the case on the theory that the commission, from the beginning, was authorized to entertain the proceeding. [Ed. Note. For other cases, see Eminent Do 3. CONSTITUTIONAL LAW 62 · "JUDICIAL POWER" DELEGATION CONSTITUTIONAL AND STATUTORY PROVISIONS. clusion that this was a substantial compli-main, Cent. Dig. §§ 681-686; Dec. Dig. the one before us. The judgment is affirmed. We concur: SHAW, J.; LAWLOR, J. MARIN WATER & POWER CO. v. RAIL- 1. EMINENT DOMAIN 71-REGULATION AS Const. art. 12, § 23, gives the Railroad Commission such jurisdiction to regulate public utilities, etc., as shall be conferred by the Legislature, and declares the legislative power to confer jurisdiction on the commission plenary. Section 22 declares the authority of the Legislature to give the commission such powers to be unlimited by any provision of the Constitution. Section 14, art. 1, provides that, when private property is taken for public use, the owner's compensation shall be fixed by a jury, unless a jury is waived. Article 12, § 23a (adopted November 3, 1914), declares the commission to have such power to fix the compensation to be paid for property of any public utility acquired by certain public corporations as the Legislature may confer upon it, and that the legislative power shall be plenary. Held, that Public Utilities Act (St. 1911, Ex. Sess. p. 18) § 47, as amended (St. 1913, p. 684), empowering the commission on petition of any water district intending to take by eminent domain the property of any existing public utility to fix the compensation, is valid. INGS-WAIVER-EFFECT. Under Public Utilities Act, § 47, as amendsion to fix compensation to be paid owners of ed in 1913, authorizing the Railroad Commispublic utility property condemned by a municipal water district, etc., the commission is given domain proceedings establishes the right to the judicial powers, as its determination in eminent owners to receive and the obligation of the public corporation to pay some fixed compensation for the property taken; "judicial power" being the power to determine what shall be adjudged or decreed between the parties and with whom is the right of the case; determination of the rights of the individual under the existing laws; the ascertainment of existing rights; the determination of controversies between parties; the power to investigate, declare, and enforce liabilities as they stand on present or past facts and under the laws supposed already to exist. [Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. §§ 94-102; Dec. Dig. ~62. For other definitions, see Words and Phrases, First and Second Series, Judicial Power.] 4. EMINENT DOMAIN 264. REVIEW-CER TIORARI-WRIT-SCOPE-STATUTE. Const. art. 6, § 4, gives the Supreme Court Proc. § 1068, provides that the writ of review power to issue writs of certiorari. Code Civ. may be granted when an inferior board, etc., has exceeded its jurisdiction, and there is no appeal 47, as amended in 1913, gives the Railroad or any adequate remedy. Public Utilities Act, § Commission judicial powers in fixing compensation in eminent domain proceedings, and section 67 provides that the review shall extend only to the question whether the commission from review questions of fact. Held that, when has legally pursued its authority, and excludes a finding or conclusion of fact is based on unmere question of law reviewable if it goes to the contradicted evidence, its accuracy is usually a jurisdiction. [Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. §§ 688, 689; Dec. Dig. 264.] MISSION-POWER TO CALL WITNESSES-EX- In a proceeding under Public Utilities Act, § 47, as amended in 1913, to have the Railroad party. [Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. §§ 180-187; Dec. Dig. ~71.] 2. EMINENT DOMAIN 262-REGULATION OF Commission fix the compensation of lands, PUBLIC UTILITIES REVIEW OF PROCEED-rights, etc., of a public utility intended to be Public Utilities Act, § 47, as amended in acquired by eminent domain by a public water 1913, valid after Const. art. 12, § 23a (adopted had power to call and examine witnesses in furdistrict, the commission, as a judicial tribunal, November 3, 1914), gave the Railroad Commis-therance of justice and against the will of either sion power to fix the compensation payable to the owner of any public utility property taken by a municipal water district, etc., in eminent domain proceedings, and section 70 provided that, if the owner whose property is sought to be taken does not file an acceptance of the compensation fixed by the commission, the corporation seeking to condemn must commence an eminent domain proceeding, in which the compensation so fixed shall be conclusive. On a proceeding in certiorari or review instituted under sec [Ed. Note. For other cases, see Eminent Domain, Cent. Dig. §§ 585-589; Dec. Dig. 231.] 6. EMINENT DOMAIN 231-RAILROAD COMMISSION POWERS RECEIVING TESTIMONY. In such proceeding the Railroad Commission, after such witness was examined and crossexamined as to his knowledge on the subject, he having viewed and examined all the prop For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes erty carefully and made exhaustive inquiries regarding the previous sales of similar property in the vicinity, and of the different uses to which the properties in question were adapted, did not exceed its authority in considering his testimony, together with other evidence bearing on the question of use and value. [Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. §§ 585-589; Dec. Dig. 231.] 7. EMINENT DOMAIN 231-COMPENSATION -EVIDENCE-METHOD OF VALUATION. In such proceeding, where it appeared that the land belonging to the public utility from which water might be obtained was so situated that the annual rainfall thereon might be conveniently collected, stored on the land, and thence distributed to consumers, and there was evidence as to the average rainfall upon such lands, the quantity which could be annually collected and stored, and the selling price, a witness' method of valuing the land without giving the advantage of water storage a sepa rate value, but merely adding it to the land value and reporting it all as one item, where the commission gave additional value to the land on such ground, the refusal to require the witness to state its separate value or to give it a separate value, while erroneous, did not deprive the commission of jurisdiction or make its award invalid. [Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. 88 585-589; Dec. Dig. 231.] 8. EMINENT DOMAIN 234-WATER RIGHTS -ELEMENTS OF DAMAGES. of the parties and the subject-matter, the same presumptions as to subsequent proceedings apply as with respect to courts of general jurisdiction, and subsequent irregularities do not make its judgments void. [Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. §§ 585-589; Dec. Dig. 231.] In Bank. Proceeding in certiorari or review by the Marin Water & Power Company, instituted under the provisions of the Public Utilities Act as amended in 1913, against the Railroad Commission of the State of California. Proceedings and determination of the Commission affirmed. Lilienthal, McKinstry & Raymond, of San Francisco, for petitioner. Douglas Brookman, of San Francisco (Max Thelen, of San Francisco, of counsel), for respondent. SHAW, J. This is a proceeding in certiorari or review, instituted under the provisions of section 47 of the Public Utilities Act as amended in 1913 (Stats. 1913, p. 684), and of section 67 of said act. Section 47 originally gave the Railroad Commission power to ascertain the value of the property of public utilities and to make revaluations thereof from time to time, but for purposes of regulation only. The amendment of 1913 empowers the commission, on petition of any county, municipal corporation, or municipal water district which intends to acquire, under eminent domain proceedings, or otherwise, the property of any existing public utility, or any part or portion thereof, to fix and determine the just compensation to be paid for such property in such condemnation proceedings. The commission is also empowered to fix and determine such value upon the filing of a petition stating that such county, municipal corpora231-COMPENSATION tion, or district intends to submit to the vot In such proceeding the claim that by means of additional dams the amount of water stored on the land annually could be greatly increased, that such possibilities increased the value of the property, and that the commission allowed nothing therefor was not sustained by a record showing that, while the commission refused to make a separate statement of the value of such possibilities, it did allow a value for the potential storage of storm water on the land by giving the land a present additional value because of such fact. [Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. §§ 592-600, 603; Dec. Dig. 234.] 9. EMINENT DOMAIN -VALUE-METHOD. In such proceeding the valuation of the property by the commission, corresponding with the values fixed by a certain witness called by the commission, who had been examined and cross-examined by the parties, was proper, as the commission was not bound to limit itself to the testimony of witnesses offered by the parties, but might take the other evidence produced at the hearing. ers thereof a proposition to acquire the property of any existing public utility or any part thereof. On May 20, 1914, the Marin municipal water district, a public corporation created under the act of May 1, 1911, and the amendment of December 24, 1911 (Stats. 1911, p. 1290; Spec. Sess. 1911, p. 92), filed with the commission a petition under the provisions of section 47, asking the commission to fix by said district for all the lands, property, and determine the compensation to be paid WATER AND POWER COMPANY-METHOD OF COMPENSATION IRREGULARITY PUBLIC and rights of the petitioner, Marin Water & UTILITY ACT. [Ed. Note. For other cases, see Eminent Domain, Cent. Dig. §§ 585-589; Dec. Dig. 231.] 10. EMINENT DOMAIN 231-PROPERTY OF Power Company, connected with its business Under Public Utility Act, § 47, as amended of selling water for domestic and other uses in 1913, requiring the Railroad Commission to fix the compensation to be paid for property of in Marin county. Such proceedings were had a public utility in accordance with section 70, thereon that the commission heard the eviwhich provides that it shall file its findings of dence of the respective parties and made a fact upon all matters as to which evidence was final determination as to the value of the introduced which in its judgment had any bearing on the value of the property, the commis- property in question, which decision became sion's failure to find separately the value of each final on May 10, 1915. This proceeding was separate parcel of the property, while an ir-begun within the time allowed by the Public regularity, did not cause a loss of jurisdiction or make the proceeding void, as, when a court Utilities Act for the review of said deof limited jurisdiction has acquired jurisdiction | cision. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes [1] At the time of the enactment of the amendment of section 47 aforesaid, and at the time of the filing of the petition to the Railroad Commission and the hearing of the evidence thereon, the Constitution, by section 23, art. 12, provided that: "The Railroad Commission shall have and exercise such power and jurisdiction to supervise and regulate public utilities, in the state of California, and to fix the rates to be charged for commodities furnished, or services rendered by the public utilities as shall be conferred upon it by the Legislature, and the right of the Legislature to confer powers upon the Railroad Commission respecting public utilities is hereby declared to be plenary and to be unlimited by any provision of this Constitution." ceeding. tioner now expressly waives any objection that might be urged because of the enactment of said amendment of section 47 before the amendment of the Constitution. This, of course, includes all objections on the ground that the proceeding was begun and the evidence taken therein before the commission was authorized to act in such matters, if such objection would otherwise lie. We have no doubt that the petitioner may effectually waive a matter of that character. As this would make the adjudication of the commission valid, so far as such objections are concerned, it is unnecessary for us here to express any opinion as to the soundness Section 22 of the article also provided that of the objections, or as to the effect, in this the authority of the Legislature to give the particular, of the several amendments to the commission powers of the same kind or dif- Constitution above mentioned. We proceed, ferent from those conferred upon it therein therefore, to consider the case upon the the"is expressly declared to be plenary and un-ory that the commission, from the beginning, limited by any provision of this Constitu- had lawful authority to entertain the protion." Section 14 of article 1 provides that, when private property is taken for public use, the compensation to the owner shall be fixed by a jury, unless a jury is waived. So far as private property belonging to public utilities is concerned, this statute purports to abrogate the guaranty of section 14. The proposition that the above clauses of sections 22 and 23 were intended to authorize the Legislature, by the simple device of giving additional powers to the Railroad Commission to nullify all the other constitutional guaranties for the protection of persons and property is certainly startling. It may well be doubted if the people understood that they were thus investing the Legislature with all the powers of state. If this proposition | arose, the question whether the rule of ejusdem generis would require a different construction would be presented. But after the enactment of said amendment to section 47 the Constitution itself was amended by the adoption on November 3, 1914, of section 23a of article 12, declaring that the Railroad Commission should have such power to fix the just compensation to be paid for the property of any public utility, when it is sought to be acquired by any of the public corporations above named, as the Legislature should confer upon it, that "the right of the Legislature to confer such powers upon the Railroad Commission is hereby declared to be plenary and to be unlimited by any provision of this Constitution," and that "all acts of the Legislature heretofore adopted, which are in accordance herewith, are hereby confirmed and declared valid." This, of course, removes all doubt of the present validity of the said amendment of section 47. Section 47 of the Public Utilities Act, as amended, after giving to the Railroad Commission power to “fix and determine the just compensation that should be paid to the owner" of the public utility property, the procedure to be as provided in section 70 of the act, also provides that, if the owner whose property is thus sought does not, within 20 days after the commission has certified its findings as to such compensation, file with the commission an agreement to accept for the property the amount so fixed, the public corporation at whose instance such compensation was fixed must, within 60 days after the filing of such findings, commence a proceeding in eminent domain for the condemnation of such property for its use. Similar provisions are made for the case where the public corporation in its petition states its intention to submit such proposition to the voters. It further provides that the compensation so fixed by the commission shall be conclusive as to the amount to be allowed for the property in the proceeding in eminent domain begun pursuant thereto, leaving the court therein to decide only the remaining material issues. [3] The first proposition to which the petitioner here directs our attention is that, in making this determination as to compensation, the commission exercises judicial power. To this counsel for the other parties and for the commission make no answer. They apparently concede it. We have no doubt that this is correct. The judicial function is to "declare the law and define the rights of the parties under it." Frasher v. Rader, 124 Cal. 133, 56 Pac. 797. To determine "what [2] The proceedings here under review shall be adjudged or decreed between the were begun, it must be noted, and substan- parties, and with whom is the right of the tially all the evidence was taken therein, be- case, is judicial action.” Rhode Island v. fore the Constitution had confirmed said Massachusetts, 37 U. S. (12 Pet.) 718, 9 L. amendment to section 47. But the matter | Ed. 1233. "A determination of the rights of was submitted to the commission, and the de- an individual under the existing laws” is cision was made thereon after said confir- an exercise of judicial power. Quinchard v. mation. In this condition of the case the peti- Board, 113 Cal. 669, 45 Pac. 856. An essen tial element of judicial power, distinguishing | mission had exceeded its authority. Section it from legislative power, is that it requires 47, however, refers to section 67 of the Public "the ascertainment of existing rights." Peo- Utilities Act. ple ex rel. Dean v. Board of Supr's of Contra Section 67 provides that the review thereby Costa County, 122 Cal. 424, 55 Pac. 131. "It authorized shall not extend further than to is not to be disputed that, as a general prop- determine whether the commission "has regosition, the judicial function is the deter- ularly pursued its authority," but adds that mination of controversies between parties." the review may include the question whether Title, etc., Co. v. Kerrigan, 150 Cal. 319, 88 the decision of the commission "violates any Pac. 356, 8 L. R. A. (N. S.) 682, 119 Am. right of the petitioner under the ConstituSt. Rep. 199, 11 Ann. Cas. 465. See, also, tions" of California and the United States, Robinson v. Kerrigan, 151 Cal. 47, 90 Pac. respectively. In view of our conclusions on 129, 121 Am. St. Rep. 90, 12 Ann. Cas. 829; the merits presently to be considered, we find Sinking Fund Cases, 99 U. S. 761, 25 L. Ed. it unnecessary to determine or discuss the 504; 23 Cyc. 1620. "A judicial inquiry in- question whether this additional clause envestigates, declares, and enforces liabilities larges our powers in certiorari, upon which as they stand on present or past facts and the court has hitherto been equally divided. under laws supposed already to exist. That See Pacific T. & T. Co. v. Eshleman, 166 Cal. is its purpose and end." Prentis v. Atlantic, 651 and 692, 137 Pac. 1119, 50 L. R. A. (N. etc., Co., 211 U. S. 226, 29 Sup. Ct. 67, 53 S.) 652, Ann. Cas. 1915C, 822, for the opposL. Ed. 150. "The Legislature may determine ing views on this point. There is also a prowhat private property is needed for pub- vision excluding questions of fact from relic purposes; that is a question of a political view. Notwithstanding this, however, the and legislative character; but, when the tak- law remains that, when a finding or conclusion ing has been ordered, then the question of of fact is based on uncontradicted evidence, compensation is judicial. It does not rest its accuracy usually becomes a mere question with the public, taking the property, through Congress or the Legislature, its representative, to say what compensation shall be paid, or even what shall be the rule of compensation. The Constitution has declared that just compensation shall be paid, and the ascertainment of that is a judicial inquiry." Monongahela Navigation Co. V. United States, 148 U. S. 327, 13 Sup. Ct. 622, 37 L. Ed. 463. In the present case a controversy exists between the public corporation desir- request of the commission and against the will of the Marin Water & Power Company. ing the property and the private owners thereof conducting the public utility concern-It is now conceded that judicial tribunals ing the compensation to be paid to such have power to call and examine witnesses in owners for the property when it is taken by furtherance of justice and against the will the public corporation. The initiation of the proceeding before the commission necessarily raises that controversy, if it did not exist before, and presents it for decision. Its determination establishes the right and obligation of the parties, respectively, in the expected action in eminent domain, the right of the owners to receive and the obligation of the public corporation to pay the sum fixed as compensation for the property if it is taken. It comprises an essential part of the action; it conclusively determines one of the facts to be determined therein for the purposes of that action. It is, to that extent, as much an exercise of judicial power, as above defined, as is the judgment of the court in the action to condemn the property. [4] The functions of the commission being judicial, the Supreme Court would have had jurisdiction in certiorari to review its final decision in the proceedings without the express grant of such jurisdiction in the act itself. Const. art. 6, § 4; Code Civ. Proc. § 1068. The jurisdiction derived from the Constitution and from the Code of Civil Procedure, under the well-established rules, could of law, and in that event the question may be reviewed if it goes to the jurisdiction. With this preliminary statement we proceed to consider the objections to the proceedings. the action of the commission in calling W. N. [5] At the hearing objection was made to Wells to testify as a witness on the subject of the values of the several properties. He was sworn and testified at the instance and of either party. No authorities are cited in [6] It is also contended that Wells was an incompetent witness on the subject, and hence that the commission went beyond its powers in considering his testimony. We think he was shown to be competent. He was regularly examined and cross-examined at great length as to his knowledge of the subject. IIis testimony showed that for the purpose of forming an opinion as to its value he had viewed and examined all the property with care and had made exhaustive inquiries regarding the previous sales of property of similar character in the vicinity and of the different uses to which the properties in ques lowed substantially the same course in arriving at his opinions that was adopted for that purpose by the expert value witnesses called by the petitioner. See Spring V. W. W. v. Drinkhouse, 92 Cal. 535, 28 Pac. 681; Vallejo, etc., Co. v. Reed Orchard Co., 169 Cal. 574, 147 Pac. 252. In our opinion, the commission did not exceed its authority in considering the testimony of such a witness together with the other evidence produced before it bearing on the question of use and value. In view of these conclusions, we find it unnecessary to consider how far the commission is bound by the rules of evidence and procedure in courts of law. It did not, in these particulars, transgress those rules. There [7] The principal objection to the testimony of Wells relates to his method of valuing the lands belonging to the petitioner from which water could be obtained. These lands are mountainous, and so situated that the annual rainfall thereon may be conveniently collected, stored on the land, and thence distributed and sold to consumers. was evidence tending to show the average annual rainfall upon these lands, the quantity thereof that could be annually collected and stored, and the selling price paid by the consumers. Wells did not give this advantage of water storage a separate value, but merely added it to the land value and reported it all as one item. The commission appears to have believed that separate values could not be given to the land and water respectively, basing its opinion upon the proposition that water which falls upon the ground as rain and runs off into the reservoir as surface water does not constitute a legal water right. We think this is no reason for saying that the two elements of value could not be separately estimated, or that there is any distinction in this respect between the added value to the land by reason of the water privilege from this cause and the added value which land may have by reason of a riparian right or a right appurtenant in a stream. Whether it is properly a water right or not is immaterial. The fact that water can annually be obtained therefrom for sale is the material element for consideration. Both the commission and the witness, however, did consider this element and gave the land additional value on that account. There can be no doubt that this element of the value of land is as much the property of the landowner as any other element which gives it value. So far as the commission appears to have held that it was not a property right, it was in error, but, inasmuch as it did give the additional value to the land, it is immaterial whether the commission, in allowing this element of value, styled it a technical water right, or a mere advantage of water storage giving additional value to the land. The refusal to give it a separate value would not deprive the commission of jurisdiction or make its award invalid. [8] The company claims that by means of additional dams the amount of water stored on its land annually could be greatly increased, that these possibilities of future advantage largely increased the value of the property, and that the commission did not allow anything therefor. We do not think this claim is sustained by the record. The commission refused to make a separate statement of the value of these future possibilities, but it appears that it did allow a value for the potential storage of storm water on the land by giving it a present additional value because of that fact. Although the expert witnesses for the petitioner adopted a different method, they practically arrived at the same result. They estimated the run-off and storage and probable expense of storage, distribution, and sale, the probable selling price, capitalized the net profit, and added the present value of the result to the value of the land as estimated apart from its value for water. While the values were larger than those given by the commission, the principle is the same in either case if the valua tion is honestly made. witnesses for the municipal water district It is not to be supposed, from what has been said, that the objections we have considered would, if well taken, operate to avoid the award of compensation. It may be that they are matters not going to the jurisdiction, and hence not reviewable in certiorari. We have preferred to consider them |
