The San Francisco call., 1910-11-27
COURT UPHOLDS
ACTION TO END
CAR FRANCHISE
United Railroads Demurrer Sus=
tanned, Corporation Being
MisiOined as Party
Suffer Street Company's Rights
in Lower Market Street TO
Be Determined

The suit for the forfeiture of the
franchise covering the outer railroad
tracks in lower Market street-from
sutter street TO the water front-can
be maintained only against the Sutter
street railway company, Judge Seawell
ruled yesterday in sustaining de-
nurrer interposed by the United Rail
roads.
II there was any cause Of complaint
against the United Railroads, the Judge
said, It was for usurping a franchise
70 which it was not entitled; but as
usurpation was not alleged in the COM
plant only secret control Of the Sut-
ter street company by the United Rail-
roads being charged, the latter was
wrongfully made a party to the action.
SUIT TO BE TRIED ON MERITS
The decision, although adverse 10 the
city as far as it goes, does not in any
way affect the petition for the forfeit
ure of the franchise as against the Sut-
ter street railway company. Judge Sea-
well overruled the demurrer of that
company. finding that against IL a
cause Of action was stated.
The United Railroads was only a
nominal party to the suit" said Assist
ant City Attorney Jesse H. Steinhart,
who has attended to the case, after
hearing the decision I'VE are now able
10 90 ahead with our suit for the for
feiture Of the franchise unlaWfully held
by the Suffer street company. The
action can be tried on the complaint as
il stands, the parts ordered stricken
out by the court being only those re-
ferring 10 the United Railroads; or, If
preferred. we can file an amended COM
plant In any event the case viii be
brought to trial on its merits"
MONOPOLY Is CHARGED
The suit was instituted by Attorney
General. L. s. Webb in behalf Of the
city. 1t charged that the maintenance
Of the service in lower Market street
by the Sutter street railway company,
under control Of the United Railroads,
was not in good faith and not for the
purpose aof accommodating the public,
but for the sole purpose of preventing
the use of the six blocks in question
by any street railroad other than the
one controlled. & nd owned by the United
Railroads and to give monopoly of
the street to the United Railroads.
The service. the complaint alleged, was
Inadequate. iuasmuch as only two small
cars were used in the daytime and
none At night
franchise as originally granted had
been divided it was asked that 1t be
f6rfeiteds and the Sutter Street railway
company fined $4,000. The demurrers
in each case were based on the conten-
lion that there had been misjoinder
Of parties and that an attempt had
been made to include several causes OF
action in one complaint.
DECISION OF JUDGE
In the course of his decision Judge
Seawall said;
The complaint is almost on the
verge of saying that the Sutter Street
railway company is doing nothing-that
IL has fallen into the hands Of the
United Railroads and is controlled by
it-aad nevertheless that the defendants
try to make it appear TO the public
that il is the Sutter street company that
is operating the railway But these
things are not stated in lawyer like
fashion. The facts should be stated.
II you would make it appear that the
Sutter street company has fallen into
evil hands the only way in which the
one company could control the other
would be by ownership of a Majority
Of the stock and the election Of salts
factory directors: But this is not
alleged.
MATTERS FOR ARGUMENT
AS to the summary of reasons why
the franchise. should be forfeited,
think those are rather matters of argu-
nent and are not proper TO he placed
in 4 complaint I can conclude from
the complaint that the Sutter Street
company is operating the road from
Sutter street to the water front, and
that the road is operated to conform to
the. wishes of the United Railroads. But,
so far as the United Railroads is con-
cerned, il is not alleged that any part
Of its interest in this franchise has
ever been transferred to it, On the
contrary. the statement is that the
right Of the Suffer street railway COM
nsnv 10 operate tracks to the water
front was especially excepted.
MIsJOINDER OF PARTY
IF it is intended to say in the COM
plaint that the United Railroads has
any right by transfer TO operate the
road from 'Sutter street to the water
front, il is clear that corporation has
been misjoined as a party. I shall
therefore sustain the demurrer Of the
United Railroads, but overrule that of
the Sutter Street railway company.
Il do not think the case against the
Sutter Street railway company is
strengthened at all by the allegations
against the United Railroads. 1t seems
10 me that the more of these outside
matters are brought in. the more the
issue is confused. Certainly. this is so
IS TO the Geary street railway question.
and as to the control the, United Rail-
roads holds over the destinies OF other
corporations.
Steinnart asked for and was granted
10 days within which TO file an amend
ed complaint should he elect to do so.
Tirev / Ford was in court representing