The record-union., 1892-08-04

chise or not the attempted grant to the rival
company is void. The Legislature practically
conceded this in the Act of 1874 by provid-
ing that although the Big Oak Company
might build q road into the valley from
Gentrys 10 the foot OF FL Captain IL could
| nevertheless take tolls only upon that portion
OF tne road lying without the valley.
Although it was attempted in this cir
curious way TO avoid the effect of the Act of
congress, yet in fact it was, if possible, less
| operative than would have been a bold inva-
SION OF the valley, for IN the latter case it
might be IN some degree sustained upon the
Ineory that the.Act amounted to an exercise
oi Cae powers OF eminent domain in the Act OF
| 10 a IL is dustriously sought to make ii APP
| pear tnat the Legislature was only attempt
ing 10 manage a part of the valley"
Inc remedy OF plaintiff, instead of being
| against the State should have been by injunc-
| tlon action Tor damages or other appropriate
remedy against the rival company.
am satisfied that the plaintiff was assured
| Dy many and possibly all the Commissioners
that Its franchise should not be invaded and
that upon the strength of these assurances IL
| expended many thousands of dollars in con-
structlng road that proved profitless and
tnat 1t so proved by reason of the construc-
tion OF the rival road under the permission
attempted to be granted by the Act OF 1874,
out am unable 10 lind any valid reason or
excuse for holding that the State is liable in q
single dollar.
TO RECAPITULATE.
l. The Act of March 81, 1891. authorizing
the suit Is unconstitutional and void because
III attempts to grant to plaintiff a special or
exclusive right or privilege contrary to par
u, Sec. 2 l, Art. OF the Constitution and
also because such right or privilege is not
granted on the same or any terms to all or
any other citizens contrary to Sec. 21 Art 4
OF the same instrument.
2. The Act is uncons titutional also. because
Us subject matter could have been met by
general law and violates par. SO of the section
first cited
4. The recitals in the Act that the plaintiff
mad an exclusive franchise to take tolls for
ten years for entering the valley are not true
IN point OF TACT and are not binding upon this
court, because 1t appears from other portions
OF the ACT thas such was not the legislative in
tent.
5. The plaintiff having no exclusive fran
cn1se none could be invaded by the rival COM
pany, and hence the plaintiff has no griev-
ance.
q. But If ii had an exclusive franchise then
the attempt To grant another franchise within
the same territory null and void and
hence wrought no injury.
T. The Act OF 1874 purportng to grant the
rival franchise has none of the elements OF a
taxing by eminent domain. The exclusive
" ct drbiis, and was not invaded by any valid
law
8. The control Of the Yosemite Valley is
vested by the Act Of Congress granting the
valley 20 the State in q Board of ommiSSion-
ers, ana they alone have power to grant fran
chlseS within tire valley. Ii Tor no other
reason, then at least for this: The Act OF the
Legislature of 1S74 attempting to grant a
rival franchise Is imperative void, ana tho.
injunction from invading the disputed terri
tory.
Let Judgment be entered in favor of de-
4elOilhI. j. -. PREWErT, Judge.