The San Francisco call., 1896-02-12
The Valley Railway Need Not
Advertise for City Fran.
chises.
STATE Law UNCONSTITUTIONAL
Supreme Court Issues a Writ Com
pelling Fresno Trustees to Grant
a Franchise.

The San Francisco and San Joaquin
Valley Railway Company won victory
yesterday which gives. a precedent for
steam railways securing rights of way
through city streets without having to
observe the statutory rule of advertising
and bidding for the privilege. The suit
grew out of difference of opinion between
the Trustees of Fresno and the Valley road
regarding a franchise along Q street in
Fresno.
The Fresno Trustees elected to give
franchise to the Valley Railway in ac-
cordance with the statute of 1898, which
required that the franchise be advertised
for in the public press and sold to the
highest bidder. The railway directors,
acting on the advice of E. F. Preston,
counsel for the board, declined to accept
the franchise under those conditions for
various reasons. Itwas held by Mr.. Pres
ton that the act of 1893 was not constitu-
tional in regard to steam rail ways, and
that, therefore, the proposition of the
Fresno Trustees was not legal. Again it
was contended that franchise accepted
under the statute of 1898 would not have
clear title, and this fact would prove
serious obstacle in the event of bonding
the railway at any future time.
1he Valley road s attorney consequently
filed petition in the Supreme Court for a
writ OF mandamus to compel the Fresno
Trustees to grant the franchise in conform
ity with his contention.
The first petition, submitted with the
belief that oral argument before the court
would be allowed, was not successful, as
the writ asked for was denied January 10
by the court. This order, however, was
made with the understanding that an
amended petition be filed.
In the second document the petitioner
stated that mandamus was the proper
remedy, holding that steam rail way was
public use, and the power of the Board
of Trustees of Fresno City with respect to
the granting or denying the application
was quasi-judicial function.
Several authorities are quoted. The
Board of Trustees was empow cred to act
for public purposes, viz: to control or
direct public use. He said:
A steam railroad asks permission to use GER
tain public streets. The board advertises for
bids, and John Doe, who has never made any
application, is the highest bidde- and the
board grants HIM franchise. Where in the
law outside OF this statute of 1893 is there any
authority given for such procedure Where
does the application of this railroad receive
any consideration whatever? What becomes
OF the rights flowing to the company by virtue
OF its franchise obtained by its organization
under and its compliance with the general
laws OF the State relating TO railroad corpora
tions?
Again, what other remedy has this petitioner
but mandamus? How can it obtain that dis
cretionary action if the board refuses TO con-
slider al all? 1t may be said that the applica-
ton can be denied, but is it a presumption 10
be tolerated that the consideration will be
other than one that is just and fair to the ap-
plfcant and to the public, with due regard to
the rights of both? Petitioner only desires to
obtain such consideration
Upon the question of remedy we very respect
fully submit that unless the statute of 1893 is
valid and operative the Board of Trustees
of the city OF Fresno should be compelled to
pass upon the application OF petitioner.
En- the second part of the petition it was
shown that under settled rules of statutory
Interpretation the statute of 1898 did not
apply to steam railroads, and cases and au-
thorities were cited to support the conten-
ton. Regarding the act of 1888 it was
held that that statute was unconstitu-
tional, since it provided for 1.-The sale of
railroad and other franchises in munich
palities, and relatives to the granting OF
franchises" while the constitution of Cali
fornia stated that ''eyery act shall en-
brace but one subject, which subject shall
be embraced in its title.''
The Supreme Court decided in favor OF
the petitioner as follows:
The foregoing order is set aside and ordered
that an alternative writ of mandate issue as
prayed, returnable before the Supreme Court
in bank at San Francisco, on Monday, the ID OF
March, 1896, at 10 A. NJ. BEATTY, c. j.
TEMPLE, j.
VAN FLEET, ].
HARRISON, J.
II. W. Spalding of the Valley roads law
department will go to Fresno to-day to
present the writ to the Board of City Trus-
tees in person.