The San Francisco call., 1899-07-08

the reasons therefor.
The court referred to the action of the
Board of Railroad Commissioners in pass
ing a resolution last April deprecaung the
litigation and reciting that it was adyisa-
BILE 10 remove the cause thereof by re
pealing the original resolutions for re
ducing rates, against the enforcement "t
which an injunction had been issued ana
directing their counsel TO obtain a dlS-
missal Of the case without costs 10 either
party: that soon after the passage OF this
resolution the Attorney General and spe-
Cial counsel for the board had appeared IN
court and moved for a dismissal OF the
case without costs 10 either party at the
same time presenting to the court copy
of the resolution Of the board authorizing
such action: that the court mad denied
this motion upon the ground that the
Commissioners. as defendants in the suit,
had no right to move for its dismissal, but
stated at the time Of so deciding that
the complainant had the right II
II saw fit to exercise IL thal
thereafter the complainant, following
the lines indicated by the court, had
fled a dismissal Of the case and procured
a final decree of dismissal without asking
for its costs; that after this action was
taken the Board of Railroad Commission
ers had come in and made a motion TO
have the decree amended so as 10 allow
them their costs.
This the court designated as rather Il
remarkable proceeding in view of the
fact that the Commissioners had initiated
the dismissal OF the action and had vol
unfairly moved for the same, waving
any claim to costs. The court held that
by 50 doing they were eStOpped from now
complaining because a decree of dismis-
sal had been entered without allowing
costs to either party; that it was the duty
of the court, sitting as a chancellor. TO re-
gard the whole proceedings and ascertain
the real intention Of the parties, and from
all that had taken place the court must
conclude that the Railroad Commission
ers had regarded the resolutions against
which the injunction ran as the real
cause of the litigation and were seeking
TO remove that cause by repeating them
and that they aimed TO do away with the
grounds of action on behalf of the rail-
road company by resembling the resolu-
tiOns complained Of, that the complainant
the railroad company, had the right TO
regard their action as taken in good
faith and 20 act upon it.
The court intimated that ii was rather
a contradictory position for counsel Of the
Railroad Commissioners TO come into
court first and ask for a dismissal of the
case without costs and then after their
request had been acceded to by the other
side 10 change their tactics and make a
subsequent application for costs upon an
entirely different theory from that upon
Inconsistency would not be regarded with
favor in a court of equity and the Com
missioners would be obliged 10 abide by
the consequences following their first pO-
sition. the result being that their motion
must be denied and they should recover no
costs in the action.
It follows from this decision that the
Commissioners not only failed to get any
previous costs incurred in the suit but
they will be also obliged to pay the coses
Of their motion including reporters fees
and the like which will be an additional
tax upon the State treasury.
The following is the full text Of Judge
NOTrow's decision:
on the Sth day of May, 1889, the At
torney General of the State and spe-
cial counsel for the respondent, the
Board Of Railroad Commissioners of
this State, made a motion for the dis
missal Of this case upon each party
to the action paying It's own costs in
Cured in the case. The motion was
based upon certain resolutions adopted
by the respondent board on the oath
day OF April. 1899, whereby certain pre-
boaTd on the 2h a6G 18Th Gays s 6 o
September, 1885. relating 10 freight and
grain rates on complainant's system
Of railroads in California, were re-
scinded, annulled, vacated, set aside
and repealed
April "A, 1893, that the respondent
board deemed 1t eXpedient and for the
best interests of the people of the |
t6er antained amt med or earried 1S on but but that
the same be discontinued: and, the
board being advised and of the opIn-
ion that the best and only method |
Of stopping said litigation was by re-
moving the cause OF II, IL was there
fore resolved that the resolutions Of /
September Y and 13, 1895, should be re-
In other words, the respondent, the
Board Of Railroad Commissioners.
a dismissal of this case upon the re-
cital that they had repealed the reso-
which had led TO the institution Of the
suit. The court denied the motion
recitaIs contained in those resolutions
which II appeared were not IN con-
fornity with the record in the case.
1t was also suggested by the court
at that time that this motion, the
case then stood should properly come
from the complainant in the action
Upon this suggestion OF the court,
complainant's counsel made a motion
for the dismissal Of the cause on the
18th Gay OF MAY 1879 rms ms motiqn
proceedings of the respondent board /
as set forth in the motion made there
tOfore by the respondent as TO the re- /
peal of the resolutions adopted by it /
in September. 1895. Upon that motion
of complainant. a decree was entered
by the court that the cause be dis
missed. The decree was silent as TO
costs The complainant did not ask
Tor Such a decree, presumably 1Or tnc
reason that the motion was made on
the proceedings had by the respond
ent board and upon the previous mo-
tion made by the Attorney General
specifically providing that each party
should pay IT'S own costs incurred.
Thereafter on the oath day of May,
1888. the Attorney General of the State
and the special counsel representing
the respondent board fled a motion TO
so amend the decree as to award to the
respondent board against the COM
.plainant all the costs by it incurred
in the action. On the same day the
complainant filed a similar motion.
The question before the court now is
a. to whether the decree so made by
the court should be amended so as TO
provide for he payment of costs, and
II so. which party should be required
TO pay these costs.
The respondent board in this case
supports its motion for an amendment
Of the decree providing for the allow
ahce Of costs TO 1T upon the ground
that it has been successful in this
suit. This claim is based upon the
c9ntention that the resolutions adopt
Cd by the respondent board on Sep +
tember Il and 13, 1895. were merely pre-