Town of St. Helena v. San Francisco, Napa & Calistoga Railway

The petition was for a writ of mandate to require respondent to lay the street pavement along its tracks in a public street of petitioner as demanded by an ordinance duly passed by said town. The trial court held the ordinance invalid as impairing the contract created by the franchise of the railroad, and therefore sustained a general demurrer to the petition. The appeal is from the judgment of dismissal following the order sustaining the demurrer. The provisions of the franchise which are directly involved in this consideration are as follows: "1. That the said grantee, his heirs, or assigns, shall lay and maintain its tracks, flush with the official grade of all streets, alleys, lanes or other public highways, within the said town of St. Helena along or over which the said railroad shall be constructed and that said grantee, his heirs or assigns, shall grade said streets and maintain the same in proper repair, along or between the track or tracks and for a distance of two feet on each side of said track or tracks in the same manner as the remainder of said streets shall be required to be graded, or kept by the said town of St. Helena. "2. That the laying of said track or tracks,…

The petition of the respondent for a rehearing after judgment in the district court of appeal is denied. The respondent, in support of its petition, contends that the franchise under which the respondent is operating does not require it to pave the streets, but only to grade them and keep them in proper repair between the tracks and for two feet on each side thereof, and that the police power does not embrace the authority to compel a street railway occupying the streets of a city to pave the streets, between its tracks, or elsewhere, or at all; that such power must be founded upon the contract between the city and the company whereby the franchise is granted, or upon some valid contract obligation of the company. It is unnecessary to consider whether or not the terms of the franchise of the defendant requires it to pave the streets. The franchise was granted under the provisions of *Page 81 section 498 of the Civil Code and that section requires street railroads to "plant, pave, or macadamize the entire length of the street, used by their track, between the rails, and for two feet on each side thereof." This can only mean that such company must either plank, pave, or macadamize…