The San Francisco call. [volume] (San Francisco [Calif.]) 1895-1913, 1895-08-07

more it. The act was framed for the speclai
purpose of preventing the Supervisors
from giving away vast rights and securing
some return to the people for them. 1t
was enacted because the Supervisors had
been VIGOROUSLY guilty in the matter, and
the law was to stop it.
He called attention to the language IN
the orders which confesses that it was
drawn by the Market-street Railway Com
pany; that the franchise to be granted Is
to be subject to restrictions in the order as
drawn by the company, ana hnally tnaI
the street railway to be operated under 1T
was to be an adjunct to and extension or
and run in connection with the lines OF
that company and for the unexpired term
of the previous franchise Of that company.
All of this was clearly violation OF the
law which provided for securing all the
revenue from the great grant that would
come of free and unrestricted competition.
1t was quite possible that the Sutro Com
pany as well as the San Mateo would want
to bid for it, but surely no one would
want it under the limitations as thrown
around it by this order. He said there
was no other word but fraud to describe
their acts. He thought the Solid Eight
had acted under legal advice in their ac-
ton, and was inclined to believe that Gen
eral Dickinson had advised them.
With regard to his right to bring the
accusation he held that the Supreme Court
had affirmed the declaration that any citi-
zen could bring an accusation This was
done in the case of John J. Marks, in
which Hall McAllister had represented
the people ard the delinquent official had
been ably defended.
General Dickinson, in brief reply. read
section 497 of the Civil Code, under which
he held that the Supervisors had discre
ton as to the manner of granting the
franchise. He declared further that while
the complaint charged fraud no acts were
cited showing it.
Here the argument closed, and Judge
Slack announced that he would decide the
matter at once. Having stated the nature
of the action in the formal fashion his
Honor said:
1t is very clear to my mind that the eight
members OF the Board OF Supervisors in de-
Ginning TO consider the application OF the San
Francisco and San Mateo Railroad Company
have done nothing in contravention OF the act
of 1898. That act imposes upon the Board OF Su-
pervisors no positive duty to advertise fran
chiSe which may be asked for, consequently
there is no refusal or neglect to perform an Off
c1al duty within the terms of section 772 OF the
Political Code of this State in declining to con-
slider the application in question. This dis
poses of the main contention. In regard to
the other allegations contained in the COM
plaint-the allegation OF fraud and corruption
on the part of the eight. Supervisors-that
can complain in this proceeding. If the
eight members of the Board of Supervisors
have been guilty of any corrupt misconduct in
office they must be proceeded against as pro-
yided by the sections of the Penal Code, begin
ming with section 758. There is no act alleged
in this accusation which gives the plaintiff an y
standing in court. There is no positive duty
imposed by the act of March 3d. 1893, which
the eight Supervisors have neglected or refused
to perform, and, as l have said, If they have
been guilty of any willful or corrupt miscon-
duct in office in general the proper proceeding
is proceeding to be instituted by the Grand
Jury. For these reasons the demurrer to the
petition is sustained, and l will give leave to
counsel for plaintiff, if he desires it, to file an
amended petition; but it seems to me that the
petition is beyond cure, however. / have not
passed upon the technical objections that have
been made to the petition, but l have con-
sidered the matter upon the merits.
Mr. Smith announced that he would
probably take advantage of the leave to
amend.
General Dickinson took exception and
then announced that his clients would
probably be out of town until the first
week in September and it was agreed that
with all the rights maintained truce
would be allowed until that time.