Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1888-05-01
THE MESSENGER CASE.
The State Supreme Court Decides In
Favor of the Railroad.

Favor of the Railroad.
rs. F. Bulletin. April 30th.l
The Legislature passed an Act in 1864 to
aid the construction of the Central Pacific
Railroad. Under the Act, the railroad
company were permitted to issue bonds on
which the state agreed to pay the interest
The company, 10 return, engaged to trans
port and convey free of charge at all times
when required, all public messengers, con-
yicts ordered to the State Prison, lunatics
sent to the Insane Asylum, materials for
the construction of the State Capitol arti-
Giles intended for exhibition at the fairs of
the State Agricultural Society, and troops
and munitions of war of the State. More
over, the company was to transfer to the
State the south half of section 10, township
ii north. range 7, Mount Diablo meridian,
within ninety days after patent had been
secured from the Government The State
paid the interest on the bonds, as per agree
ment, regularly, until December 81, 1882,
when the payments ceased. The amount
paid to that time aggregated 81 ,942 500.
Suit was then commenced against the
company to recover the above amount with
interest and costs. it being alleged that the
company had at no time fulfilled its con
tract with the people Although often
requested and required so to do, the de-
PENDANT (the company willfully and de-
signedly during all the time since the
passage of the Act refused and neglected to
transport and convey free OF charge the
persons and goods referred to above"
Moreover, the company refused to deliver
to the State deed for the specified land,
neglecting to secure patent for the same
from the General Government
A demurrer TO the complaint on the
ground that it was ambiguous and uncer-
tain was maintained in the Superior Court.
The State declined to amend the complaint,
preferring to go TO the Supreme Court ON
the demurrer. and a final judgment was
entered for the company. To-day Justice
McKinstry rendered decision affirming
the decision of the lower Court.
On the part of the State it was urged that
if the railroad did not choose to abide by
its agreement, it had the alternative of
repaying into the Treasury the interest
which had been paid, by public taxation, on
its bonds. The last clause of the Act pre-
scrioed that in case the company failed or
refused to perform any of the conditions, it
should be liable TO repay to the State the
amount which had been paid by the State
under the Act.
Justice McKinstry holds that the Act was
not an agreement on the part of the COM
pany to perform the conditions, or, at its
option, to pay the amount. The promises
made were absolute promises. In case of a
failure to perform, however, the company
is liable in damages at least up to the
amount previously paid by the State. But
the suit was not for damages, and even if it
had been the ambiguity and uncertainty of
the complaint would nullify the action.
This ambiguity and uncertainty consists in
the fact that the complaint referred in
general manner tn tba constant raf,,sal IF
Inc company to abide :, by The agreement,
stances wherein fare and freight charges
were unlawfully exacted and paid
If any other construction would hold,
the Court asserts, the simple allegation
that the company, upon a single occasion,
refused to transport a convict free of charge
would render 1t liable to the amount of
So ,O00, 900.