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

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…

dissenting.—I dissent. In my opinion the merits of the controversy here involved could be determined only in an action brought by the city and county of San Francisco against the appellant to remove its tracks and switches from Bush street. The attorney general who authorized this present proceeding was satisfied that it should not have been instituted, and endeavored to dismiss it; but, although he drafted an order of dismissal on January 5, 1896, he did not sign it, owing to delay in copying, until an hour or two after 12 o’clock m. on January 7th, at which latter time his successor had taken possession of the office in accordance with the prevailing custom, and I presume that for this reason it must be held that the order of dismissal was technically ineffective.

Section 803 of the Code of Civil Procedure, and succeeding sections upon which the present proceeding *615 was based, provide for what is, in its nature, a criminal prosecution. They provide for a maximum fine of five thousand dollars, which is about the severest punishment allowed by our criminal law short of imprisonment, and in the present case the extreme penalty was imposed. Evidently, therefore, these provisions…

concurring.—I concur in the affirmance of the judgment, and also in the views declared by Justice Temple in nearly all respects. There is nothing in the record indicating an estoppel against the city, or showing a waiver of forfeiture upon its part. For these reasons I leave the matter open as to the legal status of the city in relation to waiver and estoppel as pertaining to franchises of this character.