The San Francisco call., 1896-12-20
FITZGERALD SPRINGS A SURPRISE
ON THE SOUTHERN PACIFIC
He Files Somewhat Sensational Demurrer to the
Railroads Suit Pending in the United
States Circuit Court


subject to review By any court;
(b) Because even if the function of said
board as 10 said matters and things referred to
in the preceding head of this demurrer were
judicial in character, it was exercised after
notice and hearing, and would be as conclu-
sive as any other judicial action;
(c) Because the % per cent resolution set
forth in said bill has never taken effect or gone
INTO operation, for the reason that no schedule
under or in pursuance of 1T has ever been
made or served, and consequently no part OF
the reduction spoken of in said % per cent
resolution has ever taken effect, and because
the other resolution set forth in said bill, to
wit, the per cent or "grain rate resolution,
although in effect by reason OF the making
and service of schedule by the said board, is
not TO be enforced by said board, and the said
board is not given any power or charged with
any duty to enforce the same or any part
thereof, or the rate or rates OF charges or rates
of fare or freight fixed by said board, and is
not given any power or charged with any
duty to take or cause TO be taken any proceed
ing or proceedings for the punishment of any
violation or violations thereof but said board
has become functus otficio with respect to all
of the same, and all OF. the same is, under the
law, to be enforced and punished Qf at alD by
other officers of the STATE of California who
not now before the court.
(d) Because under the constitution and the
laws of the State OF California the observance
of rates of fare and freight established by said
Board of Railroad Commissioners Is to be en-
forced, and disobedience TO the same pun
ished by criminal proceedings which are not
of equity.
3. That it appears by the complaints own
showing by said BILL both as originally filed
and as ameuded that the complainant is not a
railroad or transportation company at all,
and is not, by its character or otherwise, au-
thorized or empowered 10 operate the rail-
roads mention ed in said bill, or any of them,
or any railroad or transportation company in
the State OF California, or in the State OF Ken
lucky or elsewhere, and the matters and
things for which the complainant seeks the pro-
lection of the honorable court for the future
are outside its corporate powers and nos per-
mitted by its charter, and are ultra wires.
4. That 1t appears from the complainants
own showing by said bill as amended that the
several corporations which are alleged to have
leased their respective roads'to the complain
ant had n power 10 make said leases or any of
them, or in any way to lease their roads or
property TO the complainant or 10 any person,
firm or corporation whatsoever, and the said
mplainant had no power or authority to
take or receive said leases or any of them. and
that all of said leases are invalid and void and
are ultra wires with respect to all OF said cor
pOrations, and passed no right title or Inter-
est to the complainant and that complainant
cannot concern itself win the question how
any OF said roads will be affected by any rate
or rates of fare or freight fixed by said Board
OF Railroad Commissioners, and cannot have
the protection # this honorable court for the
future operation OF said system or of any OF
said roads.
5. That it appears from the complainant's
own showing by said bill as amended that the
aggregation or combination of railroads men
toned in the bill and the amendment thereto,
was at all the times mentioned in the said bill
and in said amendment, and is an unlawful
combination and in violation of the laws of
the State of California and of the United States
and contrary to public policy for the follow
ing reasons:
(d) Because it is in violation and eontraven-
tion of section 20 of Article XII of the constl-
tuition of the State OF California, which pro-
vides that no railroad company or other COM
mon carrier shall combine or make any con-
tract with any common carrier "by which
combination or contract the earnings of one
doing the carrying are TO be shared by the
other not doing the carrying"
(b) Because it is in violation and contra
vention of the provisions of the act of Con-
gress of the United States, of July 2, 1890,
entitled can act to protect trade and COM
merce against unlawful restraints and
monopolies." commonly called and known as
(c) Because it is in violation and contra
vention of the rules and principles of the
common law, In relation to restraints of trade
and in relation TO monopolies
(D Because it is in reality and is substan-
tally equivalent TO partnership of the cor
porations mention ed in said bill, and in said
amendment including the Central Pacific
Railroad Company.
(e) Because it involved and involves an
attempted but unauthorized transfer and dele
CATION 10 the complainant OF the corporate
franchises, powers and functions OF the other
corporations respectively mentioned in said
bill and amendment.
u Because it involved and involves an
attempted but unauthorized transfer to the
complainant OF the Federal franchises of the
Central Pacific Railroad Company without the
consent OF Congress.
8. That it appears from the complainapts
own showing by said bill as amended tnat
the complainant is corporation of another
State and is not authorized to do business or
exercise any corporate junction in the State of
California, except upon such terms ano condi-
tions, and in obedience to such laws and in
compliance with such rules and regulations as
the State OF California chooses TO enact, and
is in no position 10 complain OF the provisions
of the constitution or the laws of the State of
California, or OF anything done under or in
pursuance thereof by any board or officer of the
State, and especially not of the provision OF
the constitution or the la ws of the State which
were in existence before the com lainant com
menced to do businessin the State or was even
incorporated, or of any thing done Hereunder
by any board or officer of the State, of which
character are the provisions of the constitu-
ton and laws in relation to the Railroad Com
mission.
z. That it appears from the complainant's
own showing by said bill as amended that GER
tain of the lessor corporations mentioned in
the said bill-to-wit: the Oregon and CaIifor-
MIA Railway Company, and the Southern Pa
cifc Railroad Company of Arizona, and the
Southern Pacific Railroad Company of New
Mexico - are corporations organized re-
spectively outside the limits of the State of
California. and are for that reason subject TO
the considerations stated in the preceding
head of this demurrer.
8. That it appears from the complainant's
own showing by said bill MS amended that all
the lessor corporations mentioned in said bill
except the Oregon and California Railroad
Company and the Southern Pacific Railroad
Company of Arizona and the Southern Pacific
Railroad Company of New Mexico, were or
ganized under the laws of the State of Califor-
mia, and that therefore their charters have
always been and are subject to be at any time
repealed, altered or amended at the pleasure
OF the State OF California, which state always
had and has the power to in anv way restrict
or modify the corporate power of taking tolls,
which is in substance and effect what the
things complained of by the complainant
amount to, and because the complainant, il
it took or holds any rights or power whatever
under any OF said leases, took and must hold
them upon the same Terms and conditions as
its lessons hold them.
8. That the showing in the said bill as
originally filed is insufficient because it deals
with complainanps so-cailed Pacific system"
as whole and does not show separately the
earnings and operating expenses OF either that
part OF the system which is in the State of
California or of each of the several cons stituent
or lessor corporations therein, both of which
matters are material TO be shown
by the complainant because, in the first
place, the validity OF the rates fixed
by the Board of Railroad Commissioners for
the transportation of freight or passengers
from one point IN the State OF California to
another point in said State-in other words for
It's domestic commerce or TRANSPORTATION
ought not to be made TO depend upon or be in