The opinion
SHAW, J., concurring:
I concur in the judgment, but I do not think it is necessary to consider all the questions discussed in the opinion of Justice Melvin. I base my concurrence upon the following propositions. I think it sufficiently appears that the Marin Water and Power Company was a public service corporation, engaged in selling water to the public. It does not follow, however, that all of the water it owned was actually applied to public use or ever had been so applied. The water which it agreed to sell and deliver to the town of Sausalito by the contract sued on, was water which had not been previously used, either by the said company or by the public. If it had appeared that some rate-fixing authority having power in that behalf had fixed rates to be charged by the Marin Water and Power Company for sales of water by it to public use, it may be that a contract between the company and a purchaser for the sale of water at a different rate would be, to that extent, inoperative. But in this
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case no rate-fixing power having jurisdiction to fix rates for that company had ever exercised such power, and no rates at which that company should sell this water had been fixed. In this situation, the company clearly had the right to fix its own rates and make agreements with others for the sale of its water upon such rates, and such contracts would be binding upon both parties, at least until the proper authority had fixed a different rate.
(Fresno C. & I. Co.
v.
Park,
139 Cal. 437 ; [ 62 Pac. 87 ] ;
Stanislaus Water Co.,
v.
Bachman,
152 Cal. 730 , [15 L. R. A. (N. S.) 359, 93 Pac. 858 ].) This being an action to recover the amount due on such a contract for the sale of the water at a rate fixed by the parties, and no governmental authority having fixed a different rate, there can be no legal objection to the validity of the agreement which is available as a defense to the claim for payment of the price agreed upon. If the Marin Water and Power Company was not a public service corporation, or had not dedicated the water which was the subject of this particular sale to any public use, there can be no question but that the contract under consideration would be valid and enforceable. In either case, therefore, I think the contract was valid and that the plaintiff was entitled to recover the amount due under it.
What the effect would be if a rate were fixed by competent authority for the government of said company in its supply to consumers, is a question not here involved. Nor does the question arise whether the town of Sausalito could, by ordinance, fix rates for the Marin Water and Power Company different from those fixed by this contract. It has not fixed such rates. It is not seriously disputed that the town may control the rates to be charged by it to its inhabitants for this water so long as it does not thereby prevent the enforcement of this contract. What would be the result if such rates were too small to enable it to pay the sums due the company is another question not here involved. The possibility that it may do this is no defense to an action for water already furnished, nor does it make the contract invalid as against public policy. In my opinion none of these questions need be decided in this case. The case, as presented, is the very simple and ordinary case of an action to recover a sum due upon a contract as the purchase price of property sold and delivered in pursuance thereof.
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For these reasons I think the plaintiff was entitled to recover and that the judgment should be reversed.
Sloss, J. concurred.