The record-union., 1891-02-11

that in the opinion Of the witnesses the re-
quirement of the law is wrong; and that
it is more convenient to the travelling
publicto have the track on the side of the
street. But the law certainly means
more than this, It is an injustice TO the
property-owners on one side of the street
to have the obstruction placed close to
their doors. And for this, among other
reasons, the law requires that it must be
placed as near the middle of the street as
practicable, and enjoins ''styict compii-
ance' with the requirement..
3. It is contended that the franchise is
void because a subscriber to the stock Of
the company was member Of the Board
of City TruSteeS, sand took an active part
in the proceedings in relation to the fran
chise; and we think that this position
must be sustained.
1t appears that when the application
for the franchise was made, a number OF
protests were put in, and the matter was
referred to a committee of two, of which
q. w. Holmes was one. This committee
made report in writing, recommending
that the application be granted. (Fol.
1907 The report was adopted, and the
franchise granted at the, next meeting.
Several months prior to this an agree
ment to subscribe to the capital stock of q
street car company to be formed ON
lines similar to those OF the defendant
was gotten up, and by it E. w. Holmes
subscribed for 200 shares OF stock. Q'ol.
1857 A committee of subscribers was
appointed to apply for franchise. Fols.
127-2S.) The personnel OF this committee
was subsequently changed to some ex-
tent. (Fols. 1850 The application was
granted, on the favorable report of the
committee of two, Of which Holmes was
a member, as above stated. Subse-
quently the committee made deed of
the franchise to the company. (Eols.
l39-42.)
1t is true that there was no testimony to
show that E. w. Holmes, the City Trus-
tee, was the same person as Il. W. Holmes,
the subscriber. But in the absence of
evidence to the contrary identity of per-
son will be presumed from identity of
name. 1t is also true that no corporation
was formed at the time of the, subscrip-
ton, and that the franchise was granted
to several individuals and not to a COM
pany. But. as above shown; the individ-
uals constituted q committee of the sub
scribers appointed for the purpose of
applying for the franchise, ana after they
obtained it, they transferred it to the
company formed in pursuance of the sub
scription.
We think that it sufficiently appears
that the franchise was granted for the
benefit of a corporation to be organized
ny q SllDSCilDSIS, vi WlOlIl tIlC
City Trustee was one, and was subse-
quently transferred to the corporation;
and taking this to be the fact the case falls
within the principal of San Diego VS.. S. ID.
and l.. A. r. r. Co. "a Cal. 1867 The
Trustee was one of a committee OF two to
whom the application was referred, and
the favorable report of this committee,
which was adopted by the board, must
have influenced its action. In our opin-
ion this vitiated the franchise.
For the above reasons we think that the
defendant was q mere intruder upon the
street, and under the case of Weyl VS..
Sonoma Valley Railroad, above cited, the
plaintiff can maintain ejectlnent against
it.
We, therefore, advise that the order ap-
pealed from be reversed, and the cause
remanded for new trial. HAYNE, C.
We concur:
VAN CLIEF, c.,
EooTE, G..