The San Francisco call., 1896-03-15
Fresno Trustees Need Not Call
for Bids on the Right
of Way.
ONE OBSTRUCTION REMOVED.
A Victory Which Will Mean Much
in the Roads Future Pro-
gresS.

The Valley road has gained its point be-
fore the Supreme Court. 1t sued to have
the Trustees of Fresno consider its appli-
cation for franchise through the town
without first putting up the franchise de-
sired at auction and the Supreme Court
has issued the desired writ. This means
that the Fresno Trustees must consider
the bid of the Valley road without first
putting it up at open competition. The
full text of the opinion is as follows:
This is an original proceeding in which the
petitioner asks the issuance of writ OF man.
date to the respondents commanding them TO
act upon its petition for leave to extend its
railway track through the city of Fresno and
across and along certain streets and lands OF
said city.
The petitioner is a corporation organized
and existing under the laws of California, and
by its incorporation authorized and empow-
cred to construct maintain and operate a
steam railway for the transportation OF passen-
gers and freight from point at or near the
bay of San Francisco, in line generally east
erly and southeasterly, to point at or near
the city of Bakersfield, in Kern County, dis
tance of about $50 miles.
The route of the road as laid out passes
through the city OF Fresno, and the petitioner
has already constructed section twenty miles
in length on such proposed route between
Stockton and Fresno. 1t is necessary fer the
proper and successful operation of the road
that it should be constructed laid out, and
this involves the right to pass through the
city of Fresno upon a line and over and across
the streets particularly designated in an ap-
pl1caton which was by the petitioner duly
presented to the respondents. But they, in
stead of passing upon the question as to
whether the proposed route was properly To-
Gated, ana the application one proper to be
granted, resolved 10 advertise for bios for the
privilege of operating a steam railway over
the route proposed, and deter mined that they
would grant said privilege to the highest bIu-
such bidder was engaged i'll constructing
road between the same termini or not. There
is not in fact, any other corporation or person
proposing to build such road, or who could
make a bona fide bid in competition with the
petitioner, and the award OF the privilege
sought to any other person would simply pre-
vent the construction of the road through the
city of Fresno, and to that extent defeat the
purpose for which the petitioner was incor-
porated.
All these facts are admitted by the respond
ents, and il is not denied that the course they
are pursuing involves a seeming absurdity;
but they hold themselves bound TO that course
by the terms of act of the Legislature, ap-
proved March 23, 1898, entitled IAN act pro-
viding for the sale of railroad and other fran
chises in municipalities and relative 10 grant
ing of franchises" [Statutes 1898, p. 2S8.l
This act does in ex press terms provide that
"every franchise or privilege 10 erect or lay
telegraph wires, to construct or operate
railroads along or upon any public street or
highway, or TO exercise any other privilege
whatever hereinafter proposed to be granted
by the Board OF Supervisors, Common Council
or other governing or legislative body OF any
county, city or county, city, town or district
within this State shall be granted upon the
conditions in this act provided and not other
WISE i. E.. the fact that franchise or privi-
lege describing It'll has been asked and that it
is proposed to grant it to the highest bidder shall
be advertised, and at the expiration of the time
limited the bids must be opened and the fran
chise or privilege must be awarded to the
highest bidder. Any member of Board of
Supervisors or other governing body who by
his vote violates or attempts to violate any of
the provisions of the act is guilty OF misde-
meanor and OF malfeasance In office, for which
he may be removed from Office by any court of
com petent jurisdiction
1t cannot be denied that the language of
this actis broad enough to include the fran
chise and privilege which the petitioner
seeks, but statute will not always be held to
include every case which falls within its
literal terms. The penalty of death de-
nounced against any person who draws blood
inthe street is not incurred by surgeon who
bleeds one who has fallen in fit and SO gen.
orally the law viii not be so applied as to work
certainly broad enough 10 cover steam rail
road and the privilege of laying and oper-
ating steam railroad through city is clearly
same time If it is perfectly evident
from the whole tenor of this act, and
other acts in pari materia, that the Legisla-
ture could not have intended the conse-
quences of literal construction of the Ian
guage above quoted such a construction can
not obtain.
1t is the policy OF the State to encourage the
building of railroads, and a corporation COM
plying with the statutory prerequisites acquires
among other things the right to construct and
operate lts road between the termlnl named In
its articles of corporation. In the exercise OF
this rightlt may pass through cities and towns
along its route, if they are willing to grant the
privilege. Generally it is to the interest of the
inhabitants of such towns and cities, as well
as of the railroad company, to have the road
pass through the corporate limits, and it is not
to be supposed that the Legislature intended
10 make 1t lmpracncable, II not impossible,
for the builders of the road and the governing
bodies of the cities and towns along the route
to promote their mutual interests in this way.
But If this law is to be enforced in literal
sense such must be the result. When rail-
road is constructed to the boundaries of a town
or city the corporate authorities may be as de-
sirous as the builders of the road to have it
pass through on its selected route, but their
hands are tied. They cannot grant the privi-
lege to any but the highest, and the highest
bidder may be some one who merely desires to
prevent the road from passing through, and
who cannot make any use OF the franchise ex-
cept for that purpose. In TACT, the franchise
sought is not the subject of competition.
particular railroad company desires per-
mission to construct its road through the town,
or in other words, to make connection through
the town OF those portions of its road extend
ing upon either side of the town to its opposite
termini. In the nature of things there can be
no competition for this privilege. The build
ers of the road must own and operate the
WuOlc llue, the IiSul 10 40 so Is part OF Its
corporate franchise, and how is it possible that
any other person or corporation can acquire
the right TO construct and own and operate as
a distinct and independent road and franchise
that part of the road necessary to connect It's
two ends? This law was not intended to apply
to such case, but only to those cases-as of
street raiiroads-in which bona fide com pc IT,
ton is possible.
1t follows that when the application of peti-
toner was presented 1t was the duty of re-
spondents 10 consider and act upon it without
subjecting the petitioner or themselves TO a
condition which might preclude them in the
exercise of q proper discretion from granting
the privilege sought. 1t is ordered that a per-
emptory writ of mandate issue commanding
the respondents to act upon the application Of
petitioner without reference to any bids for
the privilege sought and TO grant or deny ii
according TO its merits. BEATTY, c. J.
We concur:
HARRISON, j.
VAN FLEET, J.
MCFARLAND, j.
GARoUTTE, j.
TEMPLE, J.