The San Francisco call., 1896-12-31
A NEW TELEPHONE
/ LINE IS COMING
Judge Seawell's Decision
Removes Legal OBJ
Structions.
Holds That the Granting of the
Franchise Cannot Be
Reviewed.
Attorney Crittenden Saws That Over
a Million Dollars VIII Be
Invested

Prospects of the people of San Francisco
for securing an opposition telephone COM
pany were increased by the opinion of
Judge SeaweL yesterday in the matter of
the application of George II. Gauld for a
writ of review directed to the Board of Su-
pervisors of the City and County OF San
Francisco.
The material facts admitted by the de-
murrer are substantially as follows:
On March Z, 1896, the Peoples Mutual
Telephone Company, corporation, made
application to the Board of Supervisors OF
this City and County, for franchise to
fSy down and operate telephone and tele-
Esph lines IN said City and County. On
A-s~ " u. 1896, the board adopted a form of
ordinance by which it proposed to grant
said franchise, and in which were stated
the terms and conditions upon which it
would be granted, and also passed certain
resolutions directing the CLERK of the board
to advertise for proposals for said fran
chise and to publish, as required by law,
q notice setting forth that an application
had been made for such franchise, that it
was proposed to grant the same to the
highest bidder therefor, and that proposals
would be received therefor on Monday af-
ternoon, September 81, 1896, from 2:30 to
o'clock; but that no proposals for said
franchise in any sum less than $1,000
would be entertained by the board. The
name of the newspaper in which said no.
e tice should be published, and also the
number of days on which said publication
should be made, wers designated in said
resolutions.
1t is not alleged in the petition that any
action has been taken by the board subse-
O quent to the 2Ist day of July, 1896, or that
any grant has been made of the franchise
to any one. In dealing with the law
governing this case Judge Seawel said:
1T Is well settled that only final determine
ton OF tribunal or board can be reviewed on
a. proceeding OF this character. People VS..
County Judge, 40 Cal, 479; Wilson VS.. Board
OF Supervisors, 3 Cal, $50.
All that the board has far done is to de-
clare that it proposes TO grant the franchise
applied for TO the highest bidder, 10 stale the
terms and cond itions OF the grant and to
direct the clerk 10 publish notice inviting
bids and specifying the time when they will
be received by the board.
The board will not have taken any final
action in the matter of the franchise until it
shall have either made or refused to make
grant of the franchise.
lam further OF opinion that the proceedings
sought to be reviewed are legislative and not
judicial in character. The action thus far
specify the terms and conditions of the pro-
posed grant. The act OF the board IN fixing
such terms and conditions is no more judicial
than would be an ordinance fixing generally
dthe terms and conditions upon which licenses
a to sell liquor will be granted. Whoever re-
4 Ceives grant OF the franchise will be bound
4 by those terms and conditions
The distinction between legislative and
5udieial acts is well illustra ted by the Supreme
Court OF New Jersey as follows:
IAN ordinance prescribing the conditions
o upon which streets should be laid out or i'm
proved and the procedure to be adopted in ac-
comDlshing these purposes would, suppose,
be clearly legislative in charater. An ordi-
nance, however, laying out particular street
or ordering il TO be paved, would be judicial
in quality. So an ordinance fixing the quail
hcationS OF applicants for license 10 sell liquor
and the conditions upon which licenses
should be granted would be legislative, while
the granting OF license to person is judi
ciaL"-West Jersey Traction Company vs.
Board OF Public Works, ETC.; % All. Rep. 1853.
The proceedings OF the Board OF Supervisors,
thus far had, being neither final nor judicial
the demurrers to the petition will be sus-
tained.
Having reached the conclusion that the
action OF the beard is not subject to review in
this proceeding, it is not proper that l should
express an opinion upon the other questions
in the case. To do so would be to attempt the
exercise Of jurisdiction after having decided
that had none.
o Deputy City Attorney w. l. Brobeck
argued the case on behalf of the Super
Visors, and Attorney James L. Critteder
represented the new company. Mr.. Bro
beck looks upon Judge Seawell's decision
as victory for the company, and it is
thought that no further legal obstruction
Will be met with.
Mr.. Crittenden reports that over a
million dollars will be invested in the new
enterprise and that work will be begun at
once and pushed ahead with all possible
expedition.