The morning call. [volume] (San Francisco [Calif.]) 1878-1895, 1892-04-07
"SFOP-OVER' ROBINSON.
He Has the Best Of the Law
Over the S. p. Il. X.
Judge Hunt Decides That the Immunities
Possessed BY the Central Pacific Were
Not Assignable to Its Lessee.

very long decision was rendered yes
terday BY Judge Hunt. in which DIR. w. ii.
Robinson of Alameda is given very much
the best on the law in his two suits against
the Southern Pacific Railroad Company.
In one Of these he complained that the
company refused TO sell him ticket from
San Francisco 20 Alameda emitting him to
stop at the intermediate station. Oakland,
and in the other that he purchased first
class unlimited ticket from this city to Ala
media. under which he also claimed the
right to stop over at Oakland and resume
his journey at a subsequent time. These
rights tile company refused to recognize.
The determination of the question in
volved-is railroad passenger entitled to
stop-Oyer ticket-involved the construction
of sections 4S9 and 400 of the Civil Code.
Section 499 is in substance that railroad
rates and fare must be graduated according
TO distance and forbids charging more tina n
10 cents per mile for sue h fare or 10 cents
for each ton of freight transpo rted.
Section 400 declares that on tender Of tile
fare every railroad must furnish a perS on
desiring passage a ticket emitting him TO
ride. etc, and every such ticket entities
the holder thereof to ride to the depot of
destination or any intermediate station,
and from any intermediate station to the
depot Of designation designated in the
ticket at any time within six months there
after. Refusal to furnish such ticket or
passage involves penalty OF $500. and DR..
Robinson sued TO recover Su h penalties.
THE DEMURRER.
The railroad on demurrer relied on two
points. 1t claimed first that section 4S9
was repealed by section 90. article u of the
constitution of 1879. which placed the eX-
elusive power Of establishing railroad rates
of transportation in a board of commits
sin nd hQi
thereto and dependent upon II. fell with it,.
The second point was that section $50.
| applicable to the corporation in question,
| because Ii is part OF the code relating 10
corporations, adopted in 1872, after the in
/ corporation of The Central Pacific Railroad.
/ under which the Southern Pacific Railroad
! holds la this State. and that not having
elected TO continue its existence subject to
! the provisions of the code, is not affected
| thereby that section $50 being inapVlicable
! 10 the Central Pacific Railroad, the de-
PENDANTS lessor is for a like reason inap-
! p!icable TO the lessee.
Judge Hunts opinion Of % typewriter
pages considered these questions in the or
| der given, and he concluded in the first that
section $50 Of the Civil Code was repealed
| by the section OF the new constitution
/ comforting upon the commission the power
| TO establish rates OF fares. The question
then remained has section 400 survived sec
ton 4S9? Allowing that section 400 en-
! titles a passenger. after rendering the
amount Of fare fixed as provided in the
| preceding section" 10 the accommodations
and the stop-oyer ticket are the provisions
Of sections 4S9 and 400 so interdependeBt
and indissolubiy associated that one cannot
survive the oyher? Are they so vital in all
their parts that with the annihilatlon of one
must result the dissolution of the other?
TIE JUDGES OPINION.
In Judge Hunts opinion they are not
The mere circumstance that the Legls-
lature required railroad corporations tC
| adjust their rates OF fare in accord.
ance with the distance Travelled by the
passenger, or because it limited the
maximum rate Of fare, for freight pei
mile, does not prove that TO save these pro-
visions IL would not have adopted section
400, entiillng passenger, upon payment ol
fare, 10 q railroad ticket with stop-oyei
! privileges. Continuing In this line of argu-
ment the court declared that these are
privileges designed for the public beuef
and the convenience OF travellers, which
courts should Incline TO maintain rather
than overthrow.
The rate here paid was the established
one and the cOmpany's lawful charge fol
the service 10 be rendered, and the expires
| sion 'on being te ndered The fare therefor
fixed as provided in the preceding sec
tion, is not restrictive, but used IN view OF
the knowledge that the Legislature stfii re
tanned tie power TO modify or repeal section
4S9 to readjust the maximum charge, and Il
/
full rate of fare"
Coneeding under the second point tha
the Central Pacific Railroad is exempt from
the operation claimed. does the same DrIvi
lege extend to It's lessee. the Southern
Pacific Railroad? The opinion inquiries int
the meaning of the word franchise" AM
concludes that the franchise Of tn,
Central Pacific Railroad was one thing anC
its privileges Of exemption from the opera
ton Of certain laws another, and this dis
| tinp n NJ ba Su 'our
In case OF the Spring Valley Waite
Works.
EXEMPTION OR IMMUNITY.
The question then presented itself whethe
said privilege OF exemption or immunity j
assignable, and this involved the c0nstruc
ton of certain constitutional and Legislative
enactments. Ii being contended that b.
virtue of lis succession to all the prOpert,
and franchises or the Central Pacific Rail
road the Southern Pacific Railroad also sue
ceeded TO all its lmmunitles, and is therefore
governed by the act of 1861, incorporate;
the Central Pacific Railroad, and not by the
code provisions of 1872.
The State, it is declared, had right T.
regulate the business of corporations or
ganiZed after the ADDITION of the Civil Code
the Central Pacific Railroad was not such
corporation, and the Southern Pacific Rail
road was. The immunity conferred was il
the language OF section 236 Of the Civil Code
limited to corporations formed or existing
DtlVlS tue hhS upOu NHlCH INC Cuuo lhbl
effect, which was January /, 1873. Tn
Legislature having limited this immunity {
corporations formed before January ]
1873, courts cannot extend il to corpor
atoms formed after that date without in
dulging in judicial legislation under the pre-
tense of judicial construction.
The Immunity which the Central Pacifi
Railroad Company possessed did not an
could not pass under the lease TO the South
ern Pacific Railroad, and, the complaint be
ing held TO state cause Of action, the de
murrer was overrued and 10 days wer
allowed 10 answer.
c. NJ. Jennings appeared as attorney fo
DIR. Robinson.
CF0IJEI tn FIGHT