The herald., 1893-07-27
WHERE 1HE CHICKEN GOT THE AK
That's Where Judge Shaw Hit
the Terminal Railway.
South Pasadenans Get in Their
Deadly Work in Court.
The Railway Company's franchise De
cIsrea Forfeited and the Tracks
Described to Be a Nut-
sance, Etc.

important suit Oh tne CITY OF ooutn ASA
dena vs.. the Los Angeles Terminal Rail
way company.
He declares the right Of way granted
by the franchise through South Pasa-
dena forfeited, and the railroad tracks a
public nuisance.
The decision is one OF the most far
reaching that has been rendered for q
long time, and the opinion in which the
questions are discussed is quite long
one.
The action was brought to enioin the
railroad from using or operating that
part Of its line OF railway within the
the limits of South Pasadena, and to
have that portion Of the track and road
way declared public nuisance and
abated.
The plaintiff asked the relief on the
ground that the franchise under which
the railroad claims the right to main
tain and operate the railroad through
that city is forfeited by reason of the
failure and refusal of the railroad COM
pAny to comply with the conditions OF
the ordinance of the city by which the
franchise was granted to the defendants
predecessor in interest, the Los Angeles,
Pasadena and Glendale Railway COM
pany.
The conditions OF the ordinance which
it is claimed have been broken are in
the following language:
First. And provided further that
said grantee, or its assigns, shall pro-
vide for all water flowing on Grevelia
drive west OF Oak Hill avenue from the
north, and shall carry the same on the
north side OF Greyelia drive as far as
Sylven avenue"
"Second. And provided further that
said grantee. or its assigns, shall run II
passenger trains each way daily"
"Third-And provided further that
round trip fares between any OF the
above-named stations and the business
center OF Los Angeles city, on the line
of the Los Angelica cable railway, shall
never exceed 80 cents, including the
round trip fare OF said Los Angeles cable
railway and single fares between any
of eaid stations and the depot OF the
grantee or its assigns in Los Angeles
city shall never exceed 20 cents; and
that such round trip tickets shall be on
sale at all proper times within said city
of South Pasadena.
"Furthermcre, this franchise is espe-
cally granted upon each and all the pro-
visions and conditions herein contained,
and if such grantee or its assigns shall
fail in any particular to comply there
with, then and in that event all rights
under this ordinance shall tbereupon
and Immediately be forfeited. and this
grant shall thereupon be null and void"
The court in discussing the case says:
"In regard to the condition fret given
1t is only necessary to say that the evil
dence does not show that the failure to
observe itwaswillful or intentional upon
the part of the defendant, and that a
breach occasfoned by accident or ordi-
nary negligence only is not sufficient to
cause forfeiture of the estat8 granted.
"The evidence shows that tHee failure
to run II cars daily was due the fact that
there was prnctically no travel on the
earliest morL,i, rain on Sundays. That
train was on that account discontinued
and only IL trains each way we're run on
Sundays. The law does notoffsvor for
FIXTURES, and it is only for sub
stantial breach of the conditions
of the grant that forfeiture
will be declared. l do not think that
the failure to run train which WAS OF
no use to anybody should be deemed Of
sufficient importance to cause such q
forfeiture.
The principal controversy in the case
arises upon the condition in regard to
the fares. 1t is not denied that the de-
fendant ia regularly charging 40 cents
for a round trip ticket from South Pas
adena to the business center of Los An
geles, including the round trip fare of
the Los Angeles cable railway. The ev-
idence shows that this charge is made
with full knowledge of the conditions of
the grant and with the intention to vio-
late the same.
The defendant contends that this par
ticular condition OF the ordinance Is in
valid because it is not within the powers
of the plaintiff as a municipal corpora
ton to make such condition part OF
the grant; that the condition is against
pu bile policy because it requires the
railroad company to make an unjust
discrimination in it's rates of fare in
favor of persons at South Pasadena,
which is contrary to the constitution of
the state; and that it is void because it
ia an attempt to regulate the rates Of
fare for passengers on the railroad, and
by the provisions of the constitution
that power is vested exclusively in the
railroad com mission.
The last two propositions may be
answered together. The railroad must
be held to have the same discretion to
act, within the scope OF its powers, as
natural person would have, and with
in such limits it ia bound by the same
rules. When persons by their contracts
put q value on property received as
consideration for such contracts
the courts do not assume to revise
their decisions, but accept the value
thus fixed. The defendants assignor
had power to agree as to the amount to
be received as fare from persons riding
on its road, subject to the restriction
that there must be no determination
between persons or places. The fran
chise granted to the company By the
city OF South Pasadena was and is an
estate of value. II the rate fixed by the
condition of the grant 10 less proportion
ally than the rates to other places on
the line of the railroad, the difference
must be held to be made up by the val
ua BILE franchise granted aa part OF the
contract. The effect is that the railroad
is receiving the regular fare for all pass-
engers, a part OF which is paid by each
passenger, and the balance of which was
paid in advance by the city by the grant
OF the franchise.
L. H. IL