The opinion
GOMES, J., * Concurring.
case, we held that the expressed intent of the last full sentence of section 1218 of the Fresno City Charter is clear, explicit, and unambiguous. Upon rehearing this matter, on petition of both appellant and respondent, I' was convinced this was error.
The rule of statutory construction set forth in Hartford Acc. etc. Co. v. City of Tulare (1947) 30 Cal.2d 832, 835 [ 186 P.2d 121 ], provides “[w]here there is a conflict between two provisions in a statute a specific or special provision controls over a general one [citations]
To be sure, the intent of the general provision of section 1218 is to insure and maintain low water rates. However, the specific provision, empowering the city council, by ordinance, to set an amount of money *467 to be paid to the City, is by its language ambiguous and susceptible to differing interpretations.
The term “in lieu of” means in substitution of or in place of, and ordinarily implies the preexistence of that it replaces. (See Black’s Law Dict. (5th ed. 1979) p. 708, col. 1.)
It is unfortunate the drafters of section 1218, placed the term “in lieu of” into the lengthy, run-on final sentence of the section in such a position that it is not readily clear what is being replaced: Is the amount of money to be paid to the City “in place of” the amount the City would receive from a private enterprise, or the amount a private enterprise would normally pay by way of enumerated taxes?
The trial court found that the placement of the term “in lieu of” was a reference to the limitation of the amount, rather than the manner of payment to the City, and therefore was a reference to the tax burden avoided, rather than the tax loss to the City.
Applying the holding of City of Grass Valley v. Walkinshaw (1949) 34 Cal.2d 595, 599 [ 212 P.2d 894 ], that all rules of statutory interpretation are subordinate to the “controlling principle” that limitations on city power must be expressly set forth in the charter, I am persuaded the trial court ruled correctly.
This decision is also consistent with the goal stated in our original opinion; to produce a “reasonable result consistent with [the] legislative purpose.” The City should be able to raise amounts of money from the Water Division, sufficient to pay for the services supplied by the City to the Water Division, plus amounts required as reserves for bonds.
It seems clear that the intent of section 1218 encompasses more than the laudable goal of insuring cheap water rates to users by eliminating the profit requirements of a private enterprise through public ownership. While prohibiting the City from funding other services of the goverment through water rate collections, the intent also encompasses the goal of insuring that the utility itself is fully self-supporting and not an increased burden on general City revenue.
I feel the error in logic of our original opinion lies in our silent assumption that in any given fiscal year the City’s share of tax rates *468 normally placed upon private business enterprises is sufficient to pay for services and benefits received by the Water Division from the City.
Attorneys for the City raised as an issue for the first time at rehearing, additional service costs expended by the City for benefit of the Water Division, beyond those provided to City taxpayers and included in City taxes. Because of its inclusion in the City corporation, the Water Division receives direct benefit from other departments and divisions of the City.
A private business enterprise must necessarily provide and fund its own personnel services, legal services, as well as purchasing, maintenance, health and employee benefits and services. In the case of the Water Division, these costs are subsidized in whole or in part by general City revenues.
It seems manifestly fair, on close reexamination, to affirm the trial court’s ruling. Fiscal responsibility on the part of government is mandatory, but there seems to be no benefit in providing savings to City water users at the expense of City taxpayers. They are substantially the same citizens.
Assigned by the Chairperson of the Judicial Council.