The San Francisco call., 1896-10-22
Judge Daingerfeld Rules That
the Proceedings Were
Illegal.
PERCENTAGE BIDS ARE VOID.
But Privileges Already Granted on
the Sam, Basis May Not Be
Disputed.

The present Board of Supervisors will
not grant the proposed new franchise for
the Geary-street road. Judge danger
field yesterday decided that the cor
poration of the provision for the
payment of 2 per cent OF the
gross receipts of the proposed road. as
part of the bid for the franchise, renders
illegal the whole proceeding. The mat
ter would, therefore. have to be done all
over again and new bids advertised for
before franchise could be disposed OF.
According to the citizens defense law, no
Board of Supervisors may let franchise
within ninety days of the expiration OF
their term of office, and as the present
hoard viii retire before that length OF time
has apsed it can take no further steps in
the matter.
Judge Daingerfeld's 8 decision is as to
demurrers to petitions for o writ of re-
view, of prohibition and of injunction,
prayed for by George r. Fletcher, to re-
strain the Board of Superv sors from SELL
ing the privilege of operating street rail-
road over the present route OF the Geary
Street, Park and Ocean Railroad for a
period covering the next fifty years.
1t was alleged in the petition that the
conditions imposed upon bidders for the
franchise are such as to prevent fair, open
and public competition, and that the con-
dltions were so made for the purpose OF
restricting successful bidding to the Geary-
street road, which is now being operated
under franchise which will not expire
until 1903. 1t is further alleged that the
franchise advertised is worth 81 600,
and that but $780, 600 could be obtained for
it under the conditions advertised.
The attorneys for the Supervisors de-
INJURED TO the complaints, alleging that
the court had no jurisdiction in the mat
ter, and consequently could not issue
writ either of prohibition or review. His
Honor, however, holds that grounds exist
on which a writ of review or certiorari
may issue, for the reason that it is alleged
IN the petition that the application tor the
franchise purports to have been made by
the Geary-street, Park and Ocean Rail-
road Company, but was not in reality
made by that company, and that under
the circumstances the right of whoever
made the application depends upon mat
ters of law and fact within the judicial
powers of the board to ascertain, weigh
and pass upon. Therefore, the board
would be acting judicially, and hence
would be subject to a writ of review.
Judge Daingerfield remarks in his de-
cision that if the resolution passed by the
board and its record were both valid on
their face, and no other iurisdictional
defect existed, there would be nothing for
the court to annul. 1t appears to him,
however, that the provision requiring the
payment of 2 per cent of the gross annual
income accruing from the franchise con-
travenes the requirements OF the act of
1893 that franchises must be awarded to
the highest bidder, and thus vitiates the
entire proceedings.
when statute says highest bidder it
means highest bidder for cash or ready
money" says his Honor. "Gross receipts
may be large or small and are always In
definite and uncertain. The amount is
elusive and dependent on many condi-
merely to shut off competition, and with
no intention TO make the gross receipts
anything more than nominal.
1.-The resolution of the board requiring
the payment OF percentage Is an insep-
arabic part of its determination to grant
the franchise and is in excess of the juris-
diction of the Board of Supervisors. The
resolution and advertisement constituted
determination, presumably founded
upon proper evidence, that the applica-
ton was legally grantable. The act pro-
vides for no further examination into the
propriety of the sale of the proposed fran
chise and therefore such determination is
final so far as the board is concerned. The
board has power to incorporate all lawful
that it deems proper, whether stated in
the application for the franchise or not;
but when it determines 10 sell TO some one
other than the highest bidder it deter
mines in excess of its jurisdiction. The
provision exacting an annual percentage
is inseparable from the rest of the judg-
ment ana vitiates it throughout. The de-
murrer to the application for writ OF re-
view is overrued."
With regard to the petition for an in
junction, it is decided that the petition
counts on fraud and breach of trust, but
neglects to state who intends or designs
the evils complained of, and is therefore
indefinite. His Honor advises that the
complaint be amended in this particular
and grants ten days time in which it may
be done.
In conclusion. he said that he did not
deem ''it necessary to pass upon the ques-
tion whether the effect of the decision of
the Supreme Court referred to was to in.
validate franchises already in operation,
wherever percentages of current incomes
had been exacted, but considered it proper
to state that where such percentages had
been exacted and paid upon the faith of
the validity of the franchise both the mu-
nicipality and the franchise-hoider were
estopped from disputing that validity
Although the writ of certiorari may
now issue, there is nothing to review and
the matter will probably be dropped.