The herald., 1894-02-27
THE REMEDY IN THE LEGISLATURE
Judge Van Dyke Declines tt
Forfeit a Franchise.
Decision of Case That Has At
tracted Much Attention.
The Reasons for and Against che For
feiture of the Franchise of the
Main and Fifth Streets
Horse Car Line.

aAAb3 nStoAhcy -Bouctois Vbs rShhoAnSs <1'
Jesurun ct al. Judge Van Dyke yester-
day rendered q decision OF considerable
Importance.
In the course Of his opinion the court
says:
This is proceeding to obtain . de-
cree of forfeiture of the franchise Of the
street railroad between Main and San
Pedro streets in this city, operated by
the defendant corporation, the Main
Street and Agricultural Park Railroad
company.
The franchise in question was
granted by an ordinance OF the council
Of the city of Los Angeles passed August
%, 1887.
at was granted to 7. E. Rowan and
his assigns to lay down and operate
double-trsck street railroad along Main
street from First, running south to Fifth,
with the right to run over the tracks OF
the Main Street and Agricultural Park
railroad on Main street between above
points; then easterly along Fifth to San
Pedro and through the Thomas and
Wolfskill tracts to Alameda street, over
right of way to be acquired by the
grantee from the parties owning said
tracts, and containing the conditions
prescribed in section 49S of the Civil
code, among which are that the grantee
or his successors or assigns should
plank, pave or macadamizs the whole of
said road between the rails and tracks
and for two feet on each side thereof,
and that when at any time the whole or
any part OF the said route should be
either graded, paved or otherwise i'm
proved, or the grade or improvement
! changed or altered, the bed OF the road
or tracks thereof should be by the
grantee or assignee. if go required by
the said city council, made to conform
in grade or material. or both thereof.
1t was further provided, that ii at
any time for the space OF three months
the said road or any portion thereof
shall be unused as q street railroad the
franchise of that portion 80 unuHed shall
be thereby forfeited
Thereafter in September, 1887, the
grantee of said franchise assigned the
same to the defendant Jeeurun, who,
during the year 1887, constructed and
equipped double track street railroad
along the line described in said fran
chise and operated the same until 1888,
when the said assignee leased the road
to the defendants, the Main Street and
Agricultural Park Railroad company,
and the said railroad company has been
ever sincs and now is operating street
railroad company, and has been ever
since and now ia operating street rail-
road along the line therein described.
Sometime between the Stb and 18th OF
January, 1892, the defendants took up
one of the tracks between Main and San
Pedro streets and since that time have
-. II hnkx
points.
In January, 1892, the city. after pass
ing and publishing its notice of inten-
ton, passed an ordinance to pave with
bituminoue lime rock surface and con-
crete base, Fifth street between Main
and San Pedro. except the portions as
required by law to be kept in repair by
the company having q railroad track
thereon. And thereafter in February
the city council passed an order requir-
ing the defendant to perform the work
on the portion OF the streets by them
required to be performed under the
franchise, and on March 9Th served the
same upon the said defendant Jesurnn.
On March 81, 1892 the defendant filed
with the clerk and council a request to
have the work or improvementp performed
for and at her expense, and to issue
bonds for the payment OF the cost thereof
in the manner ae provided in section 43
OF an act to amend an act entitled An
act to provide work upon street, and so
forth. which amended act was passed
March II, 1891. Statutes of 1891, page
116.) sss2
The city thereupon took the necessary
steps as provided by said act, but got no
bids for the performance OF the work.
Thereupon this action was ommenced
and the grounds upon which it is urged
that the forfeiture should be declared
are that the defendants have taken up
one track between the points mentioned
and only operate q single track, and that
they have failed to pave that portion of
the street, as required by the ordinance
to be paved by the owner OF the fran
chise and the company that operates the
road
The reason assigned for taking up the
track on the part OF defendants iH that
the city granted franchise for the cleo
trio road down Fourth to San Pedro,
thence on San Pedro to Fifth, and down
Filth over the same franchise as granted
in this case, practically paralleling this
road from Main to Alameda. and in
great measure destroying its business,
and it became Improbable to operate q
double track; and that single track
between Main and San Pedro answers
every purpose, the double track from
that point being operated by the electric
road as well as the horse car line OF the
defendants.
The forfeiture clause declares that if |
any portion of the road should be I'M
used for the space of three months, the |
franchise for the portion 80 unused |
shall be thereby forfeited. The grantee |
and company defendant have used and |
still use between the points named q
single track road, and the forfeiture |
clause, therefore, could not apply to the
part OF the road 30 used, and could at
most only apply to the part unused. |
Forfeitures are not favored, and the pro-
visions of a law, ordinance or contract
declaring forfeiture are to be strictly |
construed. GA number OF references are |
here given.)
On the ground that the defendants |
have failed to pave the portion of the |
street required by them to be paved the |
action cannot be maintained, for the |
reason that they have complied with the |
provision Of the law referred to. The |
fact that no contractor will perform the |
work under the terms of section 43 |
OF the act referred to, and that the |
said act may be in the interest of street |
FoI do A0o 10. 10 Il