Los Angeles daily herald. [microfilm reel] (Los Angeles [Calif.]) 1884-1890, 1889-10-13

II is not easy to understand defendants argu-
me mt on this poiat; THE remedies against
nation. I'd, A civil action or, Sd, Abate-
ment. civil Code. Sec. 3491.
"A private person may maintain an action
for public nuisance if it is especially injuri
GUS to himself but not other wise. civil Cod
Sec. 3493
Counsels argument upon this point, as l I'M
derstand II, amounts to this: That these two
sections should be construed together, and that
the civil action mentioned in Section 349l is
the civil action mentioned in Section 3493, and
no other.
1t is difficult to understand by what method
OF reasoning he arrives at this conclusion.
The former section defines the remedies; the
latter sector, gives to a private person one of
those remedies under certain circumstances.
Section 3,493 extends rather than restricts the
operation Of Section 3.491.
That Indictment or information is not the
exclusive remedy. (See opinion OF Court in
People VS. Gold Run D and NJ Co.. &C Cal,
lists, there Is q coordinate remedy in equity to
The right OF the Attorney General to bring
SUIT In the name OF the people to enjoin pub
lie nuisance was raised and directly adjudi-
opinion, says: "a rieht to continue public
nuisance cannot be acquired by prescription,
nor legalized BY lapse ct time Against II, how
tect the people, and for that purpose the At.
torney- General, as the law officer OF the people,
has power to institute a proceeding in equity,
continuance of the acts which constitute the
nuisance" Counsel for defendant in their
| brief admit that suits to abate nuisances by the
people at the relation of the Attorney Ger neral,
and by the Attorney General at the relation Of
individuals have been sanctioned Ivy the SUI
preme Court, but they contend that suits by the
people at the relation of individuals have not.
The primary purpose OF relator in equity is
to provide some one who shall be responsible
for costs. This Is suit in equity brought by the
Attorney General. The complaint is signed by
the Attorney General. That that officer is vested
with authority to institute such suit was de-
cided, as we have seen. in the case of the peo-
does so on the relation of an Individual, if error
| at all, would be an immaterial error and not
one Of which defendant could complain
G. G. p, Sec. AIS. But 1t is not error. So far
as the method of procedure is Concerned, the
cases of people VS.. Park d o. r. Co., 10 Pac
Rep. 141, and people ex rel. Alvord VS.. Pope
ct al, 80, Cal. 437. are on all fours with the
case at bar.
Third. The law as stated by counsel for de-
fendant under this head of their brief is I'M
doubleday correct, but undoubtedly irrelevant.
The right to exist as a corporation is fran
chise.
So. too, is the right to maintain and construct
| a street railroad franchise. The latter fran
chise may be granted to a corporation or to a
| natural person. Under this head defendant
cites Civil Code, Sec. 1853, which reads rs fol-
lows: "rhe due incorporation OF any company
claiming in good faith to be corporation and
doing business as such, or its rights to exercise
corporate powers, shall not be imputed into
collaterslly in any private suit to which such
de facto corporation may be party; but such
inquiry may be had at The suit of the State on
inflammation of the Attorney General"
Tn does not mean, however, that the Courts
shall not pass upOn any act OF a corporation, or
determine whether such act be or be not ultra
wires, except in suit before the State iustitu-
ted for that purpose upon the information of
the Attorney General. The answer to the po-
sition here assumed by the defendant, is, first,
there is no dispositi on to question in this suit
the due incorporation OF defendant or its right
tr pyn a nd mud 4 hA
franchise granted by the city OF Los Angel S,
| Ordinance No. 271) being the franchise under
which defendant justifes, was one within the
scope OF the corporate powers of that munici-
pal corporation to grant, then there is no dispo-
stion to question the acts of defendant under
that grant.
| to determine whether the act of the city of Los
| Angeles in granting said franchise was within
scope of its corporate powers, except in direct
| proceeding, instituted for that purpose by the
Attorney General, as commended for by defend
ant, would be to hold that the city could grant
| to any person or corporation privilege to do
could be questioned only in a direct proceed
| ing by the Attorney General. Such rule
| would place the citizens at the mercy of the
| city authorities and the Attorney General and
leave them without redress in the courts. 1t
| is Mt the rule. In no case was it ever held
that direct proceeding was necessary to
was whe or wss no act ultra
This brings me to the fourth and last a. es-
ton, e., does defendant mali tain and operate
justifes under Ordinance No. 271 of the city OF
Los Angeles, and indirectly under Civil Code,
Sections 465 and 40. Ordinance No. 27i
Of way over certain public streets Of the city
| for the period of thirty years, for the purpose
Of laying down. operating and maintaining
running cars thereon for the transportation of
passengers, the cars to be run or propelled by
smokeless steam motors. The grant is made
1 hat tha fnro suto,
over said road within the city limits shall not
exceed five cents for one passenger and for
school children attending the public schools
| line oil the streets over which the right of way
is granted be changed or altered, the line of the
railroad shall be changed to conform to said
struction of said load within thirty days and
! have the same completed and in operation
within six months from the date of said grant.
That the grantees shall pay each year such
by ordinance of said city. That they shall
pave, plank or macadamize the entire length OF
the rails and for two feet on etch side, when.
| ever ordered SO to do by the Council of the
city of Los Angeles. etc.
These PROVISIONS are important only to show
the nature of the franchise granted by the city
and that it was franchise for street railroad
only That it is beyond the power of the city
| to grant franchise for a street railroad to be
operated by steam, seems to be clear.
Civil Code, section 497 provides Authority
| to lay railroad tracks through the streets and
public highways of any incorporated city OF
town may be obtained for a term OF years moi
| exceeding fifty, from the trustees, coun Gil OF
other body to whom is intrusted the govern.
ment of the city or town under such restrictions
| and limitations, and upon such terms and pay
ment of license tax as the city authority may
provide. In no, case must permission be
granted to propel cars upon tracks otherwise
taan by horses, mules or by wire ropes, runniu 3
under the street and moved by stationa y
engines" That 1t is beyond the corporate
powers Of said city to grant franchise for a
street railroad to be operated by steam-motorE
seems to be admitted by defendants counsel,
but they contend that defendants railroad ID
not street railroad, and that ordinance 271
was r., passed under the provisions
and sec. .470.. The former provides
construct their road across. along or upon any
street, avenue or highway" etc.
The latter section limits the former, and pro-
vides that mo railroad corporation muet use
auy street, alley or highway, or any of the land
or water within any Incorporated city or town,
thirds vote Oh the town or city authority, from
which the authority m ust emanate.' This po-
sition OF defendant Is also untenable. To hold
defendants railroad anything but street rsii-
road, or that in passing Ordinance 271 the city
intended to grant aught but franchise for q
street Railroad. would be to violate common
sense and ignore the facts and evidence In the
case. That In passing said ordinance the City
Council were acting under Title Nv. of the
Civil Code. relating to street railroads, is made
itself.
In fixing the rate OF fare the City Council
had in view section SOL of the above title In
fixing the time within which the construction
of the road should be commenced and COM
pleted, section SOP. In providing for the pay.