The San Francisco call., 1910-05-15
VERB INCLUDE
MADE DELAY IN
Tunnel PROJECT
Attorneys Rack Their Brains in.
Effort TO Unite the Legal
Knot
Final Definition Removes One
Obstacle That Threatened
Stockton Street Bore


clude' has for 90 days tied into a Cor
dian knot the past. present and future
Of the stockton street tunnel Six law
yers compiling half as many briefs
have argued pro and con on what the
simple word "include" meant. More
than half of them declared that in
clude" was word Of limitation. Some
Of them agreed that the construction
Of the tunnel was legal impossibility
because the word include was used
IN the city charter definition of street
improvements.
After days and nights of effort. be
fore which no move could be made
toward submitting the tunnel PROPOSE
tion, the real definition Of the word
was arrived at. Include" is a word
of enlargement in the parlance of the
law courts. The point which snarled
Up the prospects Of a tunnel was finally
settled in a citation Of 10 cases rang
ing from English and federal cases
down TO state cases in all parts of the
country, and the way for digging left
unobstructed-
WORDING OF THE CHARTER
The exact wording Of the defining
clause OF article 6 OF the city charter
IS as follows: The word improve
ment' shall be held to include grading
paving, planking, nacadamizing. pill
ing and Gaping and the construction
and repairs Of sewers. cesspOols, man
holes, cUlverts, drains, sidewalks and
curbs."
It was insisted that the definition of
the city charter settled anything that
was not included IN it Those who de-
clared against the tunnel project rested
on the definition OF improvements.
Three briefs were submitted to the
committee IN charge. showing that the
undertaking could not be attempted
because il was expressly barred by
this section Of the charter. To support
their contention the rule of law was
cited in the briefs relating TO the con-
structiOn OF statutes. This rule is, in
effect, that where a statute enumer-
ates the person or things TO be af-
fected by its provisions, there is an
implied exclusion Of others" With
these documents in hand Dr. Hartland
Law and the others interested almost
abandoned the idea OF the open door
10 North beach"
THRASHING OUT @ENCLUDE,
The word include" was pinned upon
as the only possible chance at rescue,
and matters were delayed for another
brief. Theodore Savage undertook TO
struggle with the problem which con
fronted the advocates for tunnels in
San Francisco. IN 1000 word docu-
ment he succeeded in making the de-
fning clause Of the city charter elo-
Quent on the subject Of tunnels. If
his brief, now submitted, is law, tun-
nels can be built in the city at any
time and at any place if the board Of
supervisors sees 1T to order the work
done.
Among the cases included in the doc
ument submitted to Doctor Law and
his associates. and which completely
reverses the stand taken by a number
Of attorneys, Reg Us. Kershaw. FL.
and Bl-, 1907, is the clearest The Ian
gUage Of the court was as follows:
The Interpretation clause of Eng
Lsh statutes sometimes provides
that z certain word shall INCLUDE
variety Of things. The courts
hold that this item is thus used
by way Of extension. and not as
giving definition by which other
things are to be excluded.
A NEGATIVE PROPOSITION
In the array Of citations Savage has
gone to the queens bench, federal and
state court cases and finally rendered
the word include" into negative
proposition as used in the city charter
of San Francisco.
In preparing for the actual construc-
NlRn VI AllE CAADNdA uI4eI NOD NH IQe
question Of damage TO property along
which eXcava ton viii be made has been
taken care Of by article VI of the char
ter 1t Is provided here that any
property owner can file within go days
OF the resolution OF intention OF the
board q notice of the dana ge which
may be done his property and on a suf-
hcient showing can receive from the
treasury the sum petitioned for.
In paving the way for the tunnel and
making the legal phase Of the work
sure and certain, the work has been
divided into two sections. The plans
from Sutter 10 Bush street and from
Sacramento to California call for the
changing Of grade; the actual tunnel
bore viii be done under the term Of
Improvement. AS the United States
courts have held a tunnel TO be an i'm
provement in the case Of the Northern
transportation company vs. Chicago.
80 Z. s, 635, the last strand in the
knot seems TO have been severed and
the way made legally clear for the
present tunnel policy" Of the business
community and property owners who
are clamOring for better traffic facili-
ties across the city's highest hills
POLICE DISCREDIT THE