The San Francisco call., 1910-03-30

.sIty in the state of California can I'M
Sersake any public utility while pri-
xate capital il ready TO take up tho
work: that no city can operate it's
Mater or electric light plants or con-
struct a streetcar line while private
,apitaI is waiting 10 undertake the
nork. His doctrine is that ii is abso-
lnteIy beyond the power of the city TO
undertake any public utility until after
private capital has declined 10 do sO.-
Assistant City Attorney THOMAS z. HAVEN
7-~- at Gesry street railroad bond hearing.
Assistant City Attorney Haven took
Up the closing arguments of the city
yesterday afternoon before Judge Eli
son in the suit brought by Horace G.
Platt, tax payer" to enjoin the mu-
uicipality from selling the bonds for
the construction OF the Geary street
railroad. Attorney William l. Brobeck
spoke for six and half hours Monday
and yesterday. concluding at 3:45 in
1lie afternoon. Tile case should close
j today.
SUBTLE ARGsI MENT OPPOSED
!. Haven Immediately took up the fight,
az eument FIRST. and dealing particularly
with the assertion II Platt's attorney
flst. as private capital was aching TO
construct a modern road in Geary
street. it was not the function of the
pity- 10 uSurp that privilege.
: Brobecks long argument was well
arranged. and he quoted many decisions
Of California and other state courts
and several federal decisions to support
His contention that the functions of a
. ilfanicipa itv are limited and do not in
:clude the light TO conduct business
ptants as distinguished from the right
tn conduct the normal machinery of
government.
- At times Platt's attorney became
: cl5s5ugenuous Particularly subtle was
ire when he argued eloquently to pro-
fsrt he city from itself-tO save the
6jtizens from the terrible responsibility
Of conducting "A street railroad-which
private capital as he freely admitted.
was impatient to construct
STREETS FOR PEOPLES BENEFIT
The streets" said Brobeck. are set
apart for the benefit of the inhabitants
of the city. The streets of San Fran
cisco are held in trust for certain mu-
nicipal purposes. When the city un-
-ds=Ttakes 10 operate q car line il de-
pTives the citizens Of certain rights
just as a corporation would
-.-: The right to use highways is d
special privilege and thing of value
p such franchises are made subject to
sale-they are articles of value which
1Hav be taxed for the benefit of the
people But a street railroad operated
by the municipality would not be sub
jeCt to tax or sale-it would be bur
den 10 the people, they would he de-
prived Of the income from the sale of
the franchise and from the taxes
n fn No
street used for a privately operated
road;
PI.ATT INTERRUPTS ATTORNEYS
- That is not a quotation?" inquired
Haven.
:. tNo." replied Brobeck modestly.
~It's as good as one" said Horace
P}att. who would like to keep the
cieary street road for his company.
F.. Thank YOU, Mr.. Platt- I'm sure of
-your sympathy. but not of Mr.. Ha-
1.ens'." said Brobeck.
-: 'sOh. I'll join in approval-so far as
the English is concerned" commented
the assistant city attorney.
!. when court opened yesterday morn
ing Brobeck continued his argument
aI9ng the lines he started Monday, at
.facking the suficiency of the bonding
proceedings. He asserted that the
board Of supervisors had not been
specific in the ordinance providing for
the. construction Of the road and that
TOO many details regarding types of
were left to the discretion
of the city engineer to be determined
upon later.
PUBLIC NECESSITY QUESTIONED
Brobeck argued further that the pub
lie pecessity for a street railroad in
.Geary street had not been shown con-
.clusively. Already in Geary street
there is line for the use of the pub
lie, which supplies every convenience
to the public" declared Brobeck There
was no need for another line"
Haven declared that the vote of the
electors was decisive on that point.
Brobeck thought the electors had moth
ing TO do with IT.
:: Brobeck then urged that private cap
ital had been willing to improve the
road, but was not given the oppor-
tunity.
pertinent with a street railroad go
ahead" continued Brobeck. referring
probably to the two-third vote by which |
the bond issue was carried, "a few
doctrinaires go ahead without seeking
10 ascertain whether the public inter-
ests could be met by private capital"
INTEREST OF PRIVATE CAPITAL
SO public interest can never exist
so long as private capital exists" in
Brobeck was amazed at the local sit
Oation. He argued that at the time the
constitution of California was adopted
# was not thought that "municipaIitv
would be so foolish as to enter upon
m enterprise of this kind when the
inhabitants could be adequately served
by private capital
"As long as the city can secure water
from private capital ii should not own
its own water works?" asked Haven.
That would be a contending factor"
Brobeck replied, but then he explained
that public water works were health
measures and that under that consid-
GRAFTON the city might own them.
ARGUMENT ON CONSTITUTION
II was argued by Brobeck that un-
der article XII of the charter the city
could not establish municipal railroads.
as such an utility would be out of the
ordinary and was not referred to spe-
officially by the charter. He quoted ex-
tensiveiy from a recent decision of
Justice Shaw of the California supreme
court C1yatt VS. Williams. 14S Cali
fornia. page $3.50 TO support his con-
fention that a municipal government
can not conduct private business
hotel saloon restaurant, grogshop