The herald., 1897-02-27
The Supreme Court Intcrprets
Constitutional Points
A SOUTHERN PACIFIC CASE
Wherein Charles A. Lee Was Awarded
$zS,000
Modified Liter to $4,000 and Cerr!ed on Ap-
peal ffom Judge ciark's De.
partment

ed from the supreme court yesterday in
the case of Charles A. Lee, plaintiff and
appellant. vs.. the Southern Pacific Rail-
road company In it is judicially dis
cussed one section of the constitution
peculiar to this state for the first time.
The plaintiff brought the action
against the Southern Pacific Railroad
company to recover damages for per-
sonal injuries sustained by him. He
pleaded that the defendant was the
owner OF certain railroad in the county
of Los Angeles and of its roadway
tracks and appurtenances; that at the
time OF the injuries complained of he
was employed by the defendant as
a brakeman, and that while in the per-
formance of his duties as brakeman at
siding called Honby on the line of the
road he was thrown from an engine up
on which he was riding and sustained
serious injuries. The cause of the acci-
dent was alleged to be the negligence
of the defendant in imperfectly con-
structing the rails and track of the
road at Honby, and in allowing this de-
fectively constructed track to remain
out OF repair, inadequate and unsafe.
The answer admitted the ownership
by defendant of the road in question,
denied that defendant was engaged in
the business of operating the road, de-
MED that plaintiff was or ever had been
in its employ as brakeman, or in any
other capacity, and denied the imperfect
construction and want of repair of the
rails and track.
A MODIFIED VERDICT.
Upon the first trial of the case the
jury awarded $4,000 as damages-the
full amount claimed but Judge Clark
set the verdict aside as not having been
warranted by the evidence. Upon the
second trial, also in department two,
the jury returned a general verdict in
favor of plaintiff in the sum of $4,000. 1t
likewise made special findings of fact
upon certain interroga tories presented
These findings, with certain other facts,
agreed to by counsel under stipulations
may thus be summarized: The defend
ant was the owner of the railroad upon
which the accident complained of oc-
CURED, but prior to the time of the acci-
dent 1t had leased the road and all the
rolling stock and property of every
kind used upon or in connection with il,
to the Southern Pacific company of Ken
lucky. The Southern Pacific company
was at the time of the accident in the
exclusive operation of the railroad un-
der the lease. The side track upon
which the accident occurred had been
constructed by the. Southern Pacific
company as an aid or adjunct to the
main line The plaintiff at the time of
the accident was in the employ of the
Southern Pacific company and not of
the Southern Pacific Railroad COM
pany. The trial court determined that
a conflict existed between the special
findings and the general verdict, ana
holding that under the special findings
defendant was entitled to judgment,
rendered it's decision accordingly.
Section 1, article XII of the constitu-
ton declares: 1.-The legislature shall
not pass any law permitting the leasing
or alienation of any franchise, so as to
relieve the franchise or property held
hereunder from the liability of the les
sor or grantor, lessee or grantee, con-
tracted or incurred in the operation,
use or employment of such franchise, or
any of it's privileges"
Upon this language appellant con-
tended that the constitution gives one
a right against the corporation which
has owned property for an injury which
has resulted to him in the use of such
property in the hands of lessee. or
grantee of the original owner and from
this he insists that his right of action
against the defendant Is established by
the constitution itself.
A PECULIAR POINT.
1.-THE section in question" says the
supreme court, was adopted by the
constitutional convention without de-
bate. 1t is a provision peculiar to this
state. 1t has not so far received judi
cial Interpretation, yet we think no diff
Guilty need be experienced in arriving at
it's true meaning. 1t is not to be con-
strued as q grant of authority to- lease,
but as restriction upon the power of
the legislature to make such grant of
authority. 1t declares:
"First-That If lease or sale shall be
made of the franchise or property of
a corporation the lessee or grantee shall
take such franchise or property cum
onere,' subject to any Of the liabilities IF
the grantor at the time existing and en-
forcible against the franchise or prop
erty. This provision Is for the very
obvious purpose of preventing corpo.
ration, by selling or assigning its fran
chise or property, from saving harm
less the franchise or property. ana
leaving remediless one who but for the
lease or sale could have enforced against
the property judgment which he might
recover. It Is designed further as n
declaration that the forfeiture of fran
chise for an act committed or omitted by
the charter corporation while 1t own-
ed such franchise, may be enforced
after transfer of the franchise by sale
or lease.
A CORPORATIONS LIMITATIONS.
One-"That in the hands Of the lessee
or grantee. the franchise or other prop
erty shall be subject to the liabilities
which may be incurred in its occupation,
use or enjoyment. Thus the corporation
owning the property will not be allowed
to save 1t harmless by conveying 1t to
another corporation. In the hands of
the operating corporation the franchise
and property will still be liable, the one
to forfeiture at the instance of the state,
the other to execution levy at the in
stance of any individual who has sus-
tanned loss or injury by reason of the
wrongful acts Of the operating corpora
ton. :,
But it will be noted that the section
does not attempt to give, and 1t Is not
intended to give personal action
against corporation where none ex-
listed before. 1t is designed to subject
the franchise and property of a corpora
ton, whether the franchise be exercised,
or the property be used, by the corpora
ton itself, or by another, to liability
for breach OF duty. Otherwise q corpor-
alton might own fully equipped rail-
road 1t might convey the road and the
property used upon and with It to q
lesser corporation owning no property
Whatsoever, and leave the conduct and
operation OF its property entirely to the
lessee. a Judgment creditor seeking to
make good his claim against the operat.