The San Francisco call. [volume] (San Francisco [Calif.]) 1895-1913, 1895-12-25

int crested, and the refusal of the said Board O.
Trustees TO act upon the application of your
petitioner delays and prevents the construc-
ton and operation of said steam railroad.
That in order to prevent the loss of time on
appeal from a judgment of Superior Court it
is necessary that there should be a final de-
termination by the court of last resort, to the
end that the people of the State of California
may have the convenience and service of
another and additional steam railroad oper-
ating in the State of California between the
points hereinbefore mentioned as the termini
of said road.
That the line of said railroad is located in
and extends through the San Joaquin Valley
in the State of California, which said valley is
of great size and very rich In agricultural re-
sources. That at all the times and dates herein
mentioned there were and there are now rail-
roads in said San Joaquin Valley, but that said
railroads are all operated by and under one
corporation, to wit: the Southern Pacific Com
pany of Kentucky. That there is no business
competition in the matter of freights and
fares in said San Joaquin Valley, and that the
construction and completion of the railroad
OF petitioner will have the effect for the first
time of producing an actual bona-fide compe-
ttion between different lines of steam rail-
roads in the matter of charges for freights and
fares in San Joaquin Valley, and that said
competition will be highly advantageous and
beneficial to those people OF the State of Cali
fornia residing in said San Joaquin Valley.
and that said community, numbering. as your
petitioner is informed and believes and there
fore AYERS, in excess of two hundred aud fifty
thousand (25O,000) people, are all interested
in the speedy and final determination of the
question herein involved, along with your Pc
tition.
Wherefore, your petitioner prays that this
honorable Court do issue all alternative writ
of mandate directed to the respondents named
herein, constituting the Board OF Trustees of
the city of Fresno, commanding them TO act
upon said application OF this petitioner for
said privilege, or to show cause before this
court at a day and time to be fixed by this
honorable Court.
And your petitioner will ever pray.
Z. F. PRESTON, Attorney for Petitioner.
E. F. Preston yesterday said in speak
ing of the move of the road:
We believe the act itself is unconstitutional,
because of many technical irregularities, and
because OF the many provisions which conflict
with the sections of the codes, but we do not
think 1t applies TO steam railroads, anyway.
The trustees OF Fresno have right to say
whether or not the franchise we ask for shall
be granted, and our action in the Supreme
Court is to compel them to say yes or no in the
matter, but we do not think the law directs
them or allows them to put it up at auction.
The clause "anv other privileges whatever"
makes the statute very broad, and the trustees
are undoubtedly sincere in the belief that they
will be liable tor malfeasance in Office should
the Valley Road franchise not be put up for
bids.
The reason for this position is the advice of
Mr.. Moultrie, the City Attorney of Fresno.
When the little railroad was built from Fresno
to Monterey, Mr. Moultrie was then attorney
for Colonel Jones, by whom the railroad was
built. He passed upon the bonds of the road,
and at that time question as to the validity
of the bonds was raised upon that very point
the franchise had not been sold to bidders.
Now that he is City Attorney the question nat
urally came up again, and this suit is intended
to settle the matter. You see it has been COM
menced at once in the highest court, and the
first decision will be final.
Our contention is that the power to control
q franchise is only co-extensive with the limits
OF the granting power. ii our franchise were
entirely within the jurisdiction of the trus
tees OF Fresno it would be another matter.
But this is State franchise for State institu-
tion-one that will benefit the people of the
State and not alone the inhabitants OF our
town, and so we hold that the franchise must
be governed by general laws and not by local
ordinance.
Then, too, there is no one to bid against US.
We are the only people who want a steam rail-
road through Fresno, and there is competition
for the franchise. Franchises such as ours be-
long TO the political power of the State, and
bodies are only agents of the Leg
islature. The public convenience is the ques-
ton and that controls, and where the power to
be exercised is for the public good that power
becomes imperative.
The alternate writ will probably be
granted within few days, and then the
case will be tried on the question as to
whether or not the alternative writ shall ..
be made permanent.