The San Francisco call., 1896-01-18
Judge Ellsworth SustainS the
Demurrer of the Southern
Pacific.
THE TEACHERS PENSION FUND.
Many County School Superintendent
Declare It to Be imperative
and Useless.
OAKLAND OFFICE SAN FRANcIsco CALL,

FJo broadway, Jan. II.
The Southern Pacific Railroad Company
has a legal right to collect fares on Seventh
street. Judge Ellsworth so decided to-day.
Some months ago q bill OF peace was filed
by E. G. Buswell to test the right of the
company TO collect fares on Seventh street.
4 demurrer was interposed and the court
has sustained the demurrer. The opinion
written by Judge Ellsworth is a lengthy
document and practically disposes of the
complaint, although leave is granted TO
amend IN certain particulars within ten
days.
The opinion of the court is contained in
the following extract:
The contention Of the plaintiff is that the
defendant is a common carrier, and as such is
bound 10 carry all who offer TO take passage,
and that since the law prohibits the carrier in
this instance from demanding fare party de-
string passage is entitled TO IL without paying
for it. But il is not the rule OF the common
law nor OF the statute, unless by the provisions
OF section y just cited, that common car
rleT must carry passengers without conpensa-
tlon. On the contrary the common law rule Is
that the carrier must carry those and those
only VINO stand ready to pay.
Ii Is claimed by the plaintiff that the legis-
latlVe intent was 10 compel all roads Whlch
might thereafter be constructed in any OF the
cities OF the state under the provisions OF that
section TO carry all persons who might desire
transportation from one station 10 another
within the corporate limits Of such cities free
OF charge, no matter how vast the n ltitudes
might be who should apply for passaga Proba-
bly, no law was ever passed OF such character
in any part of the world before, and il would
seem that II the Legislature intended anything
50 unusual and extraordinary II would have
said so in plain terms instead OF leaving its
purposes 10 be aeCerralned by iHiereucss TO be
drawn I-Om the common law principles ap-
plicable to common carriers. l think that an
examination OF all the provisions OF the act in
question VIII show that II viii not bear the
construction put upon il by the plaintiff.
In whatever light II may be viewed, section
q OF the act OF May. 1861, on which this case
hinges contains remarkable provisions. The
purpose OF the section seems 10 have been to
facilitate the travel OF passengers TO and from
points outside or city rather Than 10 facilitate
travel from point ID point within. This seems
apparent not only from the prOhibitiOn against
using a railroad as a street railroad, but also
from the provision already quoted requiring
the route through the city to be "as direct q
route as pOsSibIe and accommodate the travel
ing and commercial interests thereof"
These provisions are SO peculiar and remark
able as 10 give rise TO strong suspicion that
parties interested in street railroads may have
procured their insertion in the statute. The
views which have expressed render unneces-
sery any discussion of the question whether or
not, IN case il should be held that the statute
intends that railroad companies shall carry
passengers without Ompensation, such con-
tract exists between the plaintiff and defend-
ant, as the plaintiff claims