The San Francisco call., 1896-03-03

BILE damage suits on the part of property
owners.
Colonel E. F. Preston thereupon applied
to the Supreme Court for writ of man
date and upon the statements made at
that time the court denied the application
for the writ. A motion for a rehearing
was then made and granted and the argu-
ment was made Yesterday.
City Attorney Moultrie opened the argu-
ment with statement that the Board of
Trustees had proceeded TO advertise for
bids for that franchise under the statutes
of 1898. Mr.. Moultrie read the law bear
ing upon the matter. He announced that
the position of the Board of Trustees is
that they have no right to assume that the
word 'all railroads" refers to street rail-
roads alone and that they must take the
act as they find it. The petitioners con-
tended that the words do not refer to
steam railroads.
With reference to the contention that
the act was unconstitutional because it
sought to regulate legislation by county
governments and municipal governments,
the speaker argued that it seemed clear
that the act embraced but one subject, and
that was the subject of granting fran
chises
Z. /. Preston followed on behalf of the
petitioners. He argued that if the act
was to be interpreted as the Fresno City
Attorney prescribed it would be found that
many statutes are spread on the books that
seemed to have been placed in entire ignor-
ance of the broad principles that underlie
the subjects of which they pretend to treat.
All railroad franchises derive their pow
ers from the general grant in the code,
and are required to comply with certain
prerequisites, such as the amount of the SUBJ
scription, and SO forth. Subdivision of
section 40 of the code provides for a grant
i'm fn hQ xyb 10
part of its charter powers. That is limited
in another section, by which no railroad
corporation must use any street, alley or
highway unless the right so to use has
been granted by the town trustees or other
authorities.
The act of 1893 uses the word "rail-
roads," That language is very general.
but if the statute is considered in the light
of the construction given by the highest
court in the country and by the settled
rules of statutory construction, IL will be
found to be judicial and proper con-
struction of that statute to limit its opera
ton to such roads as come within the pur-
view of the statute. The Trustees of the
city of Elizabeth, n. j., passed an ordinance
granting the right to lay tracks on its
streets and attempted to justify the opera
ton of steam railroad under that charter,
but the Supreme Court of New Jersey held
that they could not apply the words
railroad or "ral lroad tracks" to steam
railroads, because it was not presumed
that grant of that sort would be made
where there would be compensation to
abutting property-owners.. That was the
foothold upon which the New Jersey case
rested
In the United States Supreme Court
there was case where the word rail
roads" was used indifferently, including
both street railroads and steam railroads.
~ - ~
charter OF the city of Memphis and that
was limited by the United States Supreme
Court and was construed to be appli-
cable to steam railroads and not to street
railroads. This opinion was based upon
looking at the surrounding circumstances
and the results that would flow from any
other construction.
In the case of Hummock vs.. Farmers
Trust Company, 105 United States Reports,
the Supreme Court of the United States
held that the statutes of Illinois relating
to the sale of real estate under execution
must be followed, but when they came to
construe with reference to steam railroads
they decided that it was impracticable and
impossible to apply the law. 1t would be
equivalent to splitting the charter into
piecemeal where the road ran through
different counties of the State; they de-
cided that it should be sold as a whole.
Hence the rule of the United States courts
as to sales and redemption is that there is no
right to redemption in such cases. So
the United States Supreme Court brushed
aside all the proceedings in relation to
chatte! mortgages. They said that those
provisions relating to chattel mortgages in
the State of Illinois had no application to
the personal property of railroad, rest
ing their decision on. public use.
In all these cases the main thought has
been the broad general use of the public
the necessity of opening up new avenues
for commerce to facilitate the conveyance
of the products of the interior to the sea-
board and OF those Of the seabOard to the
interior, and this doctrine of adjudication
has become the law of many States.
The entirety of railroad charter was
the next thing to which Mr.. Preston called
the attention of the court. In speaking of
the right of the people of Pasadena to ad
vertise for bids on a franchise the court
this matter. The constitution OF this
State regards these franchises as an en-
tirety. All the methods of taxation, all
the constitutional provisions regard them
in this light. The State Board of Equa1i-
zation pro rates them to the counties and
to the cities.
If this be true, if this be broad charter
for a public use from San Francisco to
Bakersfield, If it is an entirety for every
purpose, will it be supposed that the Leg
islature of this State intended that bite
should be taken out of it here, and bite
there by the highest bidders? The rum
ming of the road over the highways of the
county and over the streets of the city are
simply incidents. That is charter right
which the railroad company acquired
under the code. So, these statutes must
be read with a view to the purpose for
which they were intended. It lis supposed
that those statutes will act for the public
good.
These City Trustees have discretion, and
it will be presumed that they will exercise
that discretion for the public good. There
can be no bidder for the right to run from
San Francisco to Bakersfield unless there
is another steam railroad corporation
which has similar franchise. Every