The herald., 1896-12-21
AHORN[Y-GEN[RAL
FILES A Demurrer
Raising Questions Of Vital
Importance
IHE Southern pAclF|e Charter
Claimed to Be of NO Force or
Validity
LEASES ARE ALL ILLEGAL
The Octopus Operates All Its Leased
Lines Unlawfully
IA Sensational 0uteome Of the Railroad Com
mission Suit
LEASES ARE ALL ILLEGAL
The Octopus Operates All Its Leased
Lines UnIawfully
IA Sensational Outcome Of the Railroad Com
mission Suit
Under the Showing Made by the Rail-
road Company's Own Bill, the Com
platnank Alleged to Be an I'm
lawful Combination
Associated Press Special Wire


General Fitzgerald has filed a sensa-
tianal demurrer in the United States
circuit court in the case Of the Southern
Pacific company against the board OF
railroad commissioners OF California.
The document raises points OF vital in
terest to the Southern Pacific COM
pany, as the encouragement attacks
the validity Of the railroad company's
charter and denies its right to operate
its branch roads in this state.
The original suit was brought to enJoin
the railroad commissioners from en-
forcing its schedule Of frieghts, reducing
grain rates 8 cents.
In the preliminary decision, rendered
by Judge McKenna, these grain rates
we're declared to be unreasonable, and
the temporary injunotion granted when
the suit was instituted was ordered to
continue until the case was tried on its
merits.
The demurrer in substance denies that
there IL any question Of equity to be
decided, but claims that the matter
should be litigated only when any at
tempt is made to enforce the objection
able action Of the commissioners.
1t Is claimed that the action Of the
commission Is legislative and not sub
ject to review by any court; that any
violation of the rates fixed by the COM
mission IL a criminal matter, and not
subject to restraint by court of equity.
1t Is denied that the complainant is
railroad, or that 1t is empowered to op-
crate any of the railroads mentioned in
its bill of complaint 1t is further
charged that all the leases made to the
Southern Pacific company are invalid
and that, therefore. the complainant
cannot legally concern itself with the
question Of how amy of the lessor roads
would be affected by the commissions
action.
The complainant Is charged with be-
ing an unlawful com mbnation, created
in violation of both the state and fed
eral constitutions.
The demurrer is a lengthy one, and in
1t, among the causes for the demurrer,
the attorney general says:
That 1t appears, by the complainants
own showing by said bill, both as orig
inally filed and as amended. that the
complainant is not railway or trans
portation company at ALL and is not,
by its character or otherwise. author
lied or empowered to operate the rail-
roads mentioned in said bill. or any of
them, or any railroad or transportation
company In the state of California, or in
the state Of Kentucky, or elsewhere,
and that the matters or things for which
the complainant seeks the protection
of the honorable court for further re-
lief are outside of its corporate powers
and not permitted by its charter, and are
ultra wires.
That 1t appears from the complain
ants own showing, by said bill as
amended. that the several corporations,
which are alleged to have leased their
respective roads to the complainant,
had no power to make said leases, or
any Of them, or In any way to lease their
roads or property to the complainant or
to any person. firm or corporation what
soever, and the said complainant had
NO power or authority to take or receive
said leases, or any of them, and that all
of said leases are invalid and void, and
are ultra wires with respect to all of said
corporations, and passed mo right, title
or interest to the complainant, and that
complainant cannot concern itself with
the question Of how any of said roads
will be affected by any rate or rates Of
fare or freight fixed by said board of
railroad commissioners, and cannot
have the protection Of this honorable
court for the future operation of said
system or of any Of said roads.
That 1t appears from the complain
ants own showing by said bill as amend
ed, that the aggregation or combination
OF railroads mentioned in the bill and
the amendment thereto was at all times
mentioned in the said bill and in the
said amendment, and Is now. an un-
lawful combination and in violation of
the laws of the state of California and
of the United States. and contrary to
public policy for the following reasons:
A.-Because it is in violation and con-
travention of section 20 or article xii of
the constitution of the state of Califor-
mia, which provides that no railroad
company or other common carrier shall
combine or make any contract with any
common carrier "by which combination
or contract the earnings of one doing
the carrying are to be shared by the
other not doing the carrying"
B.-Because it is in violation and con-
travention of the provisions of the act
pf congress of the United States of
July 2, 1890, entitled "An act to protect
trade and commerce against unlawful
restraints and monopolies," commonly
called and known as the "anti-trust
act"
C.-Bscause it is in violation and con-