The opinion
Paterson, J., dissenting.
I dissent. The legislative acts, upon which petitioner bases his demand for a writ of mandate herein, are fully set forth in Meyer v. Brown, 65 Cal. 584 .
The court did not in that case define the word “ revenue ” as used in the act of 1858. In this case the meaning of that word is the main question in the controversy.
By an act approved and which took effect May 20, 1861, section 35 was amended by adding the following provision: “ Provided, however, that all moneys received from water rents shall be applied, so far as may be necessary, to the payment of the current expenses of the water-works, exclusive of the salaries and fees of the officers thereof, and the balance, if any, shall be distributed as is hereinafter in this section provided.”
The act of April 25, 1863, repealed the act of April 24, 1858, consolidating the city and county governments, and the acts amendatory thereof, and emancipated the one from the other, and incorporated the “ city of Sacramento.” In section 26 of this act the *245 language of section 35 of the act of 1858 is used, except that the word “net” is inserted before the words “water rents,” and in section 27 it is provided that,—
“All revenues derived from the water-works shall be paid into a fund to be known as the ‘ water-works fund,’ and at the end of every three months, after the payment of all necessary expenses, including salaries, to carry on and keep in order the said water-works, it shall be the duty of the auditor to apportion the residue, if any there may be, in the same proportions as the other funds of the city, provided in section 26.” (Stats. 1863, p. 426.)
The court found that “from and after the twenty-fifth day of April, 1863, there has been apportioned to the interest and sinking fund only fifty-five per cent of the amount of moneys collected from water rents, which remained after the payment of all expenses, including salaries, to carry on and keep in order the water-works, as is provided for by the act of April 25, 1863, referred to in the pleadings in this cause.”
Assuming that the meaning of the word “ revenue ” must be gathered from the provisions of the act of 1858, it is by no means clear that it was intended to be there used in the sense claimed for it by appellant. “ Revenue ” and “ income ” are used interchangeably. Thus Bouvier defines “ revenue ” to be “ the income of the government arising from taxation, duties, and the like ” and defines “ income ” by saying, “the word ‘income’ means the gain which proceeds from property, labor, or business; it is applied particularly to individuals; the income of the government is usually called revenue.” Burrill says it is “ that which returns or is returned; a rent, income; amount of profit received from lands or other property.” He defines “income” to be, “in a strict sense, that which comes in or is received from any business or investment of capital without reference to the outgoing expenditures. In a looser sense, income is used as synonymous with profits.”
*246 Under a will which required the executor to pay the income of the estate to the widow during her life, Chief Justice Shaw decided that “the ‘income’ mentioned in the will must be considered the net income, after deducting the taxes, repairs, and ordinary current expenses attending the estate, from the gross receipts for rents.” ( Watts v. Howard, 7 Met. 482 .)
In Andrews v. Boyd, 5 Greenl. 202, the court said: “It does not appear to us that any fair distinction can be raised between ‘income’ and ‘net income.’ ‘ Net’ is a term used among merchants to designate the quantity, amount, or value of an article or commodity after all tare and charges are deducted. The income of an estate means nothing more than the profits it will yield after deducting the charges of management, or the rent which may be obtained for the use of it. The rents and profits of an estate, the income or the net income of it, are all equivalent expressions.”
In view of the uncertainty as to the meaning the legislature intended to attach to the word “revenue” in the act of 1858, the amendatory and supplemental acts may be regarded as simply rendering its true meaning certain, and as in no way changing, adding to, or taking from it. They should not be declared void because of the insertion of the word “net,” unless it is clearly repugnant to the sense in which the words “revenue from water rents” had been used in the original act.
But conceding that a change in the meaning and operation of the act has been worked, we think it is one the legislature might make without impairing the obligation of the contract.
As was said in Meyer v. Brown , “the tax was the chief security offered the creditors as an inducement to accept the bonds in payment of their claims.” That fund is fixed, certain,—at least, to a minimum,—and can never be made less until the bonds are paid. (Sec. 34.)
The receipts to be derived from the other sources are *247 not fixed, but depend upon ordinance or statutory regulation as to rates, and are subject to be discontinued at anytime. The city authorities may—subject to legislative control—fix water rates as they deem best, without violating any vested right. The city was not bound to keep up the water-works for any time by any provision in the act of 1858. When the old works became worn out and useless, the city was under no obligation to put up new works. But it is said in answer to this that the city did build new works, and is receiving rents, and so long as the rents are received, the city is bound to set apart fifty-five per cent of the gross receipts. This answer would be sound if there were anything in the act of 1858 requiring the city to fix any particular rates or any provision fixing a minimum, as in the matter of taxes. The contract still exists, its obligations are still as solemn and binding as they were under the act of 1858, and for aught appearing to the contrary, the changes — if the new provisions can be regarded as changing the original—not only have worked no injury to the creditors, but have been a benefit to them as well as to the inhabitants of the city.
The contract being one which by its nature—so far as certain sources of revenue or receipts are concerned — depends upon contingencies and expectancies, we think it clear that the mode and manner of its performance is within the control of the legislature.
There has been no attempt to repudiate. On the contrary, the interests of both creditor and city have been advanced. In 1876 the net receipts exceeded the gross receipts of 1863. If new water-works had not been erected, the revenue from this source would long since have ceased entirely. That the acts of the legislature and of the city authorities have operated beneficially to all interested is apparent, we think, from the second finding of the court below, which is as follows: “That the water-works of the city of Sacramento which supplied' *248 the inhabitants thereof with water at the time of the passage of the act of April 24, 1858, and at the time of the issuance of the bonds for city indebtedness provided for by said act, gradually became, by reason of decay and the growth of said city, insufficient to supply the necessary amount of water; and in 1872 the city of Sacramento, in pursuance of an act of the legislature of said state, entitled, 'An act to provide the city of Sacramento with a better supply of water/ which act was approved March 30,. 1872, adopted the Holly system of waterworks, and purchased a new site and built thereon. another building, and put in the necessary machinery of that system.
“ By the old system for supplying water, the water was pumped from the Sacramento River into tanks or reservoirs, and from thence it flowed into the city mains or water-pipes by gravitation pressure.
'■ By the Holly system, the water was pumped from the Sacramento River and forced directly into the city mains by means of force-pumps used by said system. Two new and costly pumps were purchased for this purpose.
'' By said Holly system, the pressure on the mains or pipes was greatly increased, and a new main pipe of increased strength was laid along I Street of said city for the purpose of conducting the water to the lesser pipes running throughout the city, and in use under the old system, and other new pipes were provided when necessary.”
The petition shows that for the ten years including and next preceding the fiscal year 1872-73, the gross receipts from the water-works amounted to the sum of $417,891, and the net receipts $79,650; and for the ten years following, the gross receipts were $662,307, and the net receipts $258,664.
There is nothing in the decision in Meyer v. Brown opposed to the views herein expressed. That was a proceeding to compel the municipal authorities to levy a *249 tax of one hundred cents on the one hundred dollars, as required by the act of April 24, 1858. The petitioner alleged that said officers,“ although requested by plaintiff to levy a tax of one hundred cents on the one hundred dollars, as required by said act passed April 24, 1858, have failed and refused to levy the tax for the year 1883, as required by said act, but have levied a diminished tax of fifty cents on one hundred dollars.” The defendants denied that they were required to levy the tax claimed by petitioner, and averred “that the tax required to be levied by section 34 is not an annual or continuing tax, and that the same was levied in the year 1859, and the power to levy a further tax under said section is exhausted.”
That was the issue, and the only issue, in that case, and what is said in the opinion must be considered as referring only to the question there determined.
Searls, 0. J., concurred with Mr. Justice Paterson.