The opinion
¡Rhodes, J., concurring specially:
I concur in the judgment, and also in that portion of the opinion of Mr. Justice McKinstry which is devoted to the discussion of the writ of prohibition, except in so far as it holds the writ to be a prerogative writ. In my opinion, it is a statutory writ. Its scope, purpose, and the class of cases in which *126 it may issue, are defined and prescribed b/ tho Code. When a party presents a proper case he is entitled to the writ, and the Courts have no right to deny him that remedy, in the exercise of some undefinable judicial discretion, when no valid legal objection is presented.
I am not prepared, in this case, to express an opinion upon the construction to be given to the words “ and shall furnish water to such city and county, or city, or town, in case of fire, or other great necessity, free of charge.”
The determination that the writ would not lie is a final disposition of the action, and the announcement of conclusions upon other questions discussed by counsel would amount to mere dicta. Nor am I satisfied that, as between the plaintiff and the city, the construction of the words above cited was not conclusively settled by the judgment in San Francisco v. Spring Valley, 48 Cal. 493 .
For these reasons I decline to express any opinion upon the questions discussed by Mr. Justice McKinstrt, other than those relating to the writ.
Mr. Chief Justice Wallace, having been of counsel for the City and County of San Francisco in the litigation between it and the water company, declined to express an opinion in this case.