People ex rel. Warfield v. Sutter Street Railway Co.

Temple, J. This is an information filed by the attorney general, on the relation of E. H. Warfield, to have it declared that the defendant usurps and unlawfully exercises the franchise of maintaining tracks and switches upon and along Bush street and Central avenue in San Francisco, and that by such judgment defendant he excluded from the privilege of maintaining and operating any street railway, or any part thereof, upon and along any of the parts of said streets and avenues described in a certain ordinance, and that all the rights and franchises acquired by said ordinance be adjudged and declared forfeited, and for a fine not exceeding five thousand dollars. The complaint sets out a certain ordinance of the city and county of San Francisco granting to certain named parties the right to construct, maintain, and operate for the term of forty-four years a single or double track street railroad along and upon the following streets in the city and county of San Francisco, to wit: commencing at the intersection of Market and Bush streets, thence along said Bush street to Central avenue, thence along Central avenue to Sacramento street, thence along Sacramento street to First avenue, thence along First avenue to D street, and thence along D street to the ocean beach. It is averred that no part of said right of way or franchise has been abandoned. It is alleged that defendant has acquired said franchise by assignment. It is stated that the work of constructing said street railway was not commenced within one year after the franchise was granted, but that in 1888 the construction was begun, and that a street rail — 609 — way was constructed along Bush street to Central avenue and along Central avenue to California street, but no railway has been constructed upon any other street mentioned in said ordinance. It is further charged that no acts have been done toward operating a street railway over any portion of the right of way, except that a single car is run once each day along said tracks which have been constructed. Such car has not been run to accommodate the public or to carry passengers, but to hold the franchise and'to prevent the granting of such franchise to others. That Bush street runs through a densely populated part of the city. The defendant has never attempted to opefate the road as or for the purpose of accommodating the public or any part of it. A demurrer was interposed which was overruled, and the defendant answered. The facts are found as alleged in the complaint. On the twenty-eighth day of January, 1895, defendant moved the court to dismiss the action on the ground that on the fifth day of January, 1895, the attorney general of the state of California had, by an order made on that day, ordered the action to be dismissed. The “ order ” was produced and purported to be signed by W. H. H. Hart as attorney general. On the fifth day of January W. H. H. Hart was attorney general, but on the twenty-eighth day of January W. F. Fitzgerald held that office. Fitzgerald entered upon the duties of his office Monday, the seventh day of January, at 12 o’clock, m. It appeared that on the 5th of January, 1895, General Hart concluded to dismiss the action and made a minute of such determination. In the afternoon of January 7th, and after the expiration of his term, he mailed to the special attorneys for relator and to the attorneys for defendant notice of such determination. The letter concluded as follows: “ It is therefore ordered that the above-entitled action be and the same is hereby dismissed.” The attorney general was, however, only an attorney of a party and could not thus dismiss a pending case. He must apply to the court — 610 — for such action, and when the application was made Hart had ceased to represent the plaintiff. He had ceased to have apy authority over the matter when he signed and sent the letter which purports to be an order of dismissal. There could not be at the same time two attorneys general, and it is of no moment if the attorney general gave Hart permission to continue to act as such. The attorney general has filed a brief in this court for the respondent and has continued to prosecute the action. 1. The complaint is not ambiguous in that it asserts that defendant usurps and unlawfully holds and exercises a franchise to maintain in and upon Bush street a street railway while it also alleges that defendant has never operated a street railway on Bush street. The whole pleading makes it plain that defendant has a franchise to the effect indicated, of which a forfeiture is claimed because it has never operated a street railway for the convenience of the public, but for more than six years has maintained a pretended and simulated service only. 2. Two or more causes of action are not united in the complaint. To allege that defendant unlawfully exercised and wrongfully claims the right to exercise a franchise and that it claims the right to lay tracks and make switches is not to unite two causes of action. 3. It is claimed that the complaint states no cause of action because it avers that upon the tracks which defendant has constructed it has not at any time operated a street railway. And it is contended that an action for usurpation will not lie unless the defendant is using the franchise. As authority for this proposition People v. Thompson, 16 Wend. 655, is cited. In that case it was alleged that defendants usurped the right to be a corporation. In such a case, of course, the public has no interest in the matter if defendants only claim to be a corporation but do not attempt to act as such. In this case a franchise was granted to defendant's assignors to lay down and operate on cer — 611 — tain public streets a street railway. One condition of the grant was that the grantees should commence the work within one year and complete the same within three years. If the road is not built and operated in accordance with the grant, a forfeiture is expressly declared, and the public is interested in having the franchise out of the way that the right may be granted to another. But the complaint proceeds to aver that the defendant now usurps and unlawfully holds and exercises the franchises of maintaining in and upon Bush street between Kearny and Webster streets the tracks and switches of a street railway, and pretends to operate the same by running over the track one car every day, but not with the intent of accommodating the public. It is shown that defendant has abandoned no portion of its line. The supervisors had no power to extend the time within which the track must be completed. That is fixed by the statute, section 502 of the Civil Code, and a different period cannot be fixed in the grant of the franchise. The provision in the franchise that the time shall not commence to run, if valid, might have the effect to extend the franchise for more than fifty years, contrary to section 497 of the Civil Code. No valid franchise can be granted by the supervisors which conflicts with the general statutes. If the street were not graded in time the defendant should have abandoned the ungraded streets. 4. I see nothing in the fact that by the constitution of 1879 superior courts have jurisdiction to issue writs of quo warranto which affects the question. This special grant of jurisdiction is not exclusive. This is in reality an action to obtain a judgment declaring a franchise forfeited. It admits the existence of the franchise, but for the dereliction by reason of which it is claimed the rights conferred have been forfeited. This may be done by a proceeding strictly in form of a quo warranto, but there is no reason why the proceeding may not be — 612 — by a regular action. In fact, there is now so little difference that it is hardly worthy of discussion. The proceeding is by information by the attorney general. When the proceeding is in the interest of private persons, in whole or in part, they are said to be by relation, and under the provisions of the code the relator may be required to give security for costs. The information, however, that is, the complaint, is signed and filed by the attorney general as attorney, and doubtless as attorney he has control of the action. I know of no such distinction as that made by counsel and attributed to the late attorney general. If the proceeding is one in which a private person can have no interest, the proceeding is not properly by relation. But the attorney general had the power to institute the proceeding, and in either form it is by him. If unnecessarily he has added that it is by relation of a named person, that does no harm. It does not convert the proceeding into a private action. 5. I am unable to discover any act on the part of the city by which a forfeiture was waived, if it were conceded that a forfeiture could be waived by the city. No right is acquired by maintaining an obstruction in the street. Statutes of limitation do not run in favor of such a trespasser. If the law be, as is claimed by some, that such a franchise is not lost until it has been declared forfeited in a judicial proceeding, the city could but acquiesce. It has no power to institute an action to secure a forfeiture. That power is vested in the attorney general. As it could not enforce a forfeiture it could not waive it. The city cannot be estopped in respect to a matter oyer which it has no power. There is no statute which requires the municipal authorities to request the institution of such a suit, or which gives any force to such a request should it be made. 6. In 1895, section 502 of the Civil Code was amended by authorizing the board granting the franchise to fix the time for beginning and for completing the work, also empowering the board to extend the time — 613 — for completion of the work. The forfeiture clause is the same as before, and the amendatory act concludes: “Provided further that this act shall not affect any franchise or right of way granted before its passage." This action was commenced before the amendment, but was tried after the new law became in force. The board of supervisors have not granted any extension of time, but the contention is that the old law was by the amendment repealed, and as there was no saving clause the right to insist upon a forfeiture is lost. By the repeal of an act prescribing a penalty the right of action to recover a penalty already incurred is gone. But the old section was not repealed by the amendment. In Central Pac. R. R. Co. v. Shackelford, 63 Cal. 261, this court quoted with approval the following language from Ely v. Holton, 15 N. Y. 598: “The portions of the amended section which are copied without change are not to be considered as repealed and again re-enacted, but to have been the law all along." The new section repeats the language of the former law as to the time within which the work must be done and as to the forfeiture. These, therefore, have not been repealed, and do not begin with the amendment. To the section as it has been all along is added a provision giving certain powers to the board. The effect, then, of the provision above quoted is that the new provisions do not affect existing franchises; that as to them the board cannot extend the time for completion. But the clause declaring the forfeiture has not been repealed. 7. I think the fact of nonuser was shown beyond question. The board of supervisors has the power to grant such franchises in the interest of the public and to facilitate travel. The pretense of running was clearly a sham. It was not intended thereby to accommodate the public, and it could have no effect in that direction. 8. I see no reason to doubt the power of the court to impose a fine. The amount seems very large, but I cannot say that it was unreasonable. The franchise — 614 — had been granted for ten years; for more than six years the track had been laid on Bush street. This was in a thickly settled portion of the city. The circumstances show conclusively that the franchise was held not to convenience the public and to facilitate travel, but to prevent the facilities for travel, and thus force patronage upon the Sutter street line. The judgment and order are affirmed. Henshaw, J., and Harrison, J., concurred. Beatty, C. J., being disqualified, did not participate in the foregoing.