Los Angeles herald. [volume] (Los Angeles [Calif.]) 1890-1893, 1891-11-15
STREET RAILROADS.
THE PROVISIONS OF THE STREET
BOND ACT.
A Law Which Is Completely Guarded at
All Points-The Council Given Full
Discretionary Powers-A Digest of tn 9
Law.

As it has been claimed that the street
car companies can elect to pave their
tracks, on streets ordered improved,
under the street bond act. we have care
fully examined the law, and find that
they have no election in the premises
but that the council has the discretion
to let them come under that act or not
as it may determine. The reason why
the car companies are thus discrimi-
mated against in the case OF street inn
provements, is that a car company
would have it in it's power to block i'm
provement on any street it ran over,
for. as is we'll said, solvent contractors
wodld not bid on street work when the
bonds they would have to take would
only be secured on a segment of street
railroad. The law, as will be seen be-
low, is completely guarded at all points.
Section As refers solely to street rail-
roads and the railroad portion of each
street has been expressly excepted from
the proceedings for improving the re-
naming width, and requires distinct
action for itself.
1t is error to suppose that section 40
is the exclusive law on that subject, or
that it repeats, or amends or affects any
previously existing law. 1t nowhere
imports or implies that. On its face it
is merely supplementary and concur
rent provision. Its aim is to facilitate
for street railroad companies the pay
ment of the cost Of their work by bonds,
which, however, can be issued only
when the council decides it to be a
| dit case.
Section 43 contains no mandatory pro-
vision for the council, but only for GER
tam officers to carry out the will of the
council after the council has elected to
work under it. The section is permissive
as to the councils election, as it says
Gfter," etc. "But if -, then said
city council may pass an ordinance of
intention" etc.
This is not one of the cases where the
courts construe "may" to mean must"
Alternative law exists unrepealed.
The entire object OF section 43 is to
make it easy for street railroads to put
their portions of the street in order, but
never to enable them to block the
work, or evade their duty under their
franchise, or to get bonds issued for
them in cases where it might be profit
able for them to pay the bonds only by
FORGETTING their tracks and fractions of
their franchises. Cases can readily be
imagined where such course might be
profitable for them, such as on an out
side street, easily abandoned and ex-
changed for parallel street to fill the
route. Pearl and Figueroa streets are
not such. They are paying and indis-
pensable parts of the system. Abandon
ing them would practically disembowel
the system. 1t could not be afforded.
But such schemes being sometimes
practicable, it is left to the discretion of
the council in sec 43 whether it will
work under the code and franchise
solely. If the council has reason to ap
prehend the existence OF such scheme,
it can be expected always to checkmate
it by operating first under the code and
franchise with their severe penalties.
Ii the street railroad company after
wards will show to the satisfaction
of the council that it has SO arranged
that safe bidding for its bonds can and
will be made, it will then also be in
the discretion OF the council to have the
work done under sec. 43 and allow
bonds to issue for the street railroad |
company's convenience.
So far, the council has wisely kept its
course free on these streets. The street |
railroad companies can file request for |
the council to have their work per- |
formed for bonds within fifteen DAYS |
ritter receiving certified copy of the
councils order for them to do the work.
Any such request before such order has
been made is premature, wholly ineffi-
cacious and could not be regarded. A
request has been made, but has not been
QnfAd hoo NO ,lat
cannot be acted upon, for the council
has not yet made the order or sent any
notice.
1t is to be supposed that the council
will previously decide whether it will
act under section 43 or under the code
and franchise first, and, if it finds it safe,
afterwards under section AZ. That is the
clear measure OF safety.
How as to franchise and code?
Each franchise must speak for itself
as to distinctive obligations and penal
ties. All later franchises and rights of
way contain pretty uniform provisions
as to paving, ETC., on railroad parts OF
the street and very severe penalties.
The Civil Code is stringent on the sub
ject.
Section 1913 engrafts into all rights of
way granted the absolute provision
(among others) that the grantees shall
"pave, ETC., the street used by track be-
tween the rails and two feet each side.
and between the tracks, and keep the
same constantly in repair, flush with the
street." etc. This is during construction,
and continues after construction. 1t is
a condition both precedent and continu-
ing, and if not performed the right of
way or franchise fails.
Section SOB provides that "cities may
make such further regulations as may be
necessary for the enforcement of the
conditions provided" in section 49S.
Section 507 preserves to the city, as
inalienable and unimpeachable, the
right of street work, and commands that,
''if required, the corporation must shift
it's rails so as to avoid the obstruction
made thereby"
1t is now obvious that under the code
alone, aside from the franchise and Sec
ton 43, the council can at any time re-
luire the paving of the street railroad part
Of the street, not necessarily by an order,
as section 43 would require, but by a
mere notification that the condition of
paving, whether precedent or contin- s
ling, has not been fulfilled, and that {
unless it is fulfilled within a certain :
lime the penalty attendant upon such !
lnfulflled condition will be enforced. :
That penalty is too severe to be disre-
,arded or sought to be evaded.
Whenever the council is satisfied
hereafter that street railroad COM I