The San Francisco call., 1897-07-23
Will WANDER
NO LONGER,
The Phantom Horse Car on
Bush Street Doomed
to Oblivion.
Supreme Court Decides Against
the Sutter Street Rail-
way Company.
It Held a Franchise That Is Now
Forfeited-A Heavy Fine
Imposed.

The Bush-street Dhantom-the solitary
antiquated horsecar tnat semi-occas sionally
used TO rum BILE over the rusty rails and
disturb the tranquility of that thorough
fare-is now thing of the past. Its per
petuai doom was pronounced yesterday by
the State Supreme Court. This was
brought about by the suit instituted by
General R. II. Warfeld, as citizen,
against the Sutter-street Railway Com.
pany.
The action was an in formation fled by the
Acknowledgement, upon the complaint of K
H. Warfeld OF the California Hotel on Bush
street. 10 have the Sutter-street Railway Com
pany declared uSurpers, and that it was un-
lawfully exercising the franchise of maintain.
ing car tracks and switches on Bush street to
Central avenue. In the complaint 1t was set
forth that in 1885 a franchise was granted to
Abner Doble, William Center and William H.
Hanson, who formed corporation known as
the Bush-s treeJ Railway Company, to con-
struct, maintain and operate tor the term OF
forty-iour years single or double track street
railroad on the following streets IL this City:
Commencing at Market and Bush to run
along Bush to Central avenue, to Sacramento,
10 First avenue, to street aud along D street
to the ocean beach.
II was ayerred that no part of this right of
way or franchise had been abandoned. The
Sutter-street company acquired this franchise
by assignment. Work was not begun within
IL 1888 car tracks were laid along Bush
street to Central avenue and along this avenue
to California street, but not upon any of the
other streets named in the franchise. 1t was
further charged that no work of the defend
ants was ever begun toward operating stree t.
car railroad on the streets or rails laid, ex-
cept that OF a single car once day. That car
was not for the accom- odatlon OF the public
or TO carry passengers, but to hold their fran
chise and prevent the granting of such iran
chise to others. In fact, the defendant COM
pany never attempted TO operate street rail-
road there, although Bush street is densely
populated
The action was first begun by Attorney =
General W. H. II. Hart, but he caused it
to be dismissed. However, the dismiss al
was made at date later than intended,
and at the time that w. F. Fitzgerald was
in office. The latter caused the dismissal
TO be set aside, and the case was duly tried
before Superior Judge Hebbard, who
awarded to General Warfield the costs OF
the suit and fined the railroad company
$4,000, besides declaring the allegations
true and the franchise void. From this
the Sutter-street Railway Company ap-
pealed to the Supreme Court. 1t con-
tended that the act OF 1885, relating to the
fixing of time for the commencement OF
work and the com pletion thereof, nuliified
the right of forfeiture. Also that the
judgment was excessive.
Cnlel justice lem pie renQereu long
decision. in which he upheld the decision
of Judge He bbard, and in ths course o
his remarks said:
l think the fact of non-user was shown be.
yond question. The Board of Supervisors has
the power to grant such franchises in the in
terests of the public and to facilitate travel
The pretense of running was clearly sham
1t was not intended thereby to accommodate te
the public, and it could have no effect in tn al
direction.
| l see no reason to doubt the power OF the
| court to impose fine. The amount seems
very large, but cannot say that it was un.
| reasonable. The franchise had been granted
| for ten years. For more than six years the
| track had been laid Gu Bush street. This was
| in a thickly settled portion of the City. The
circumstances show conclusively that the
| franchise was held not to convenience the
public and 10 facilitate travel, but to prevent
| facilities for travel and thus force patronage
upon the Sutter-Street line.
| The judgment and order are affirmed.
We concur: TEMPLE, ].
HENSHAw,
HARRISON
Justice Mcfarland rendered a dissent.
ing opinion on two points. The first was
that the action should have been brought
by the City instead of by the Attorney.
General, and the second that the fine i'm.
posed upon the company was too high.