The San Francisco call., 1896-01-18

Company, will file with the Supreme
Court to-day petition for a rehearing in
the railroads request that the Board of
Trustees of the city of Fresno be con-
strained to act in the matter of granting
the new road a right of way along @
street in that city.
The original petition was returned by
the Supreme Court last Saturday with the
single Endorsement. ''writ denied" and
the renewed attempt is an elaboration of
every point made in the original. together
with an explanation of the act of 1893 and
statement OF the only remedy open to
the petitioners.
In substance the statute of 1893 provides
for the sale of railroad and other fran
chises in municipalities to the highest
bidder after the particular course of the
proposed line through the incorporated
town has been duly advertised.
First-The Valley road maintains that
the act does not apply to steam railroad
corporations, but that it is designed to
regulate the granting of franchises to street
railways; this particular right of way for
steam railroad is only link in the great
course of the Valley road and cannot be
matter for competitive bidding as in the
case of franchise for the privilege of op-
Grating streetcar system.
Seeond-It is claimed that the act is I'M
constitutional because, contrary to the
constitution of the State of California, it
embraces in its title more than one sub
ject: "An act to provide for the sale of
railroad and other franchises in munici-
palities and relative to the granting of
franchises" The intent of the constitu-
tional provision is to prevent the union in
one set of incongruous matters and busi-
M no o1oAs
Mandamus is declared to be the proper
remedy in the premises on the ground
that the Board of Trustees of the city of
Fresno is public body; that steam rail
road is public use, and that consequently,
according to one OF many similar authori-
ties, when public body or officer has
been clothed by statute with power to do
an act which concerns the public interest or
the rights of third persons, the execution
of the power NAV be insisted upon as a
duty, though the phraseology of the
statutes be ,permissiye merely and not
peremptory."
The petition during the elaboration of
its case says:
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 bidder, and the
board grants him franchise. When does the
application OF this railroad receive any con-
sideration 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 corporations
What other remedy has this petitioner but
mandamus?
If it fail by reason of not being the highest
bidder how can it get across any road, or
series of roads or streets? In this view it is
not absurd to say that when such road as
part of its system locates its line "along or
upon" road in county, or a street in city,
1t can proceed no lrther with its construction
unless IL happen to succeed in placing the
highest tender for the privilege with the gov
erning board or council.
None other than the promoters of the main
line could make a bona fde bid. The system
between its termini being an entirety, both by
constitution and statute, how can it be put up
for sale upon competition in small parcels?
Imagine being required to be the successful
bidder for each separate privilege, no matter
how small or how necessary, particularly
when there can be no bidder except q CORPORA
ton duly qualified under the general law 10
exercise the franchise of steam road
The power to operate steam road and to
charge and collect tolls in the character of
charges for freights and fares is a franchise.
and can be only exercised by qualified corpora
tions.
p. f. Preston, when seen last night,
said: II cannot tell what the cause OF the