People Ex Rel. Boole v. Northwestern Pacific Railroad

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SPENCE, J.

This action was brought on relation of Fred W. Boole, a resident and taxpayer of the city of Belvedere. It is described by plaintiff as a

quo warranto

proceeding under the provisions of section 803 of the Code of Civil Procedure to cancel a franchise for “non-user and abandonment”. A demurrer to the amended complaint was sustained without leave to amend and from the judgment entered in favor of defendants, plaintiff appeals.

The particular franchise referred to in the amended complaint was granted in 1924 by the board of supervisors of the city and county of San Francisco. It was embraced in ordinance No. 6244 (new series) and granted the right to operate a ferry from San Francisco to Tiburón in Marin County.

The amended complaint alleged “That said defendants have not, nor have either of them, ever used said franchise granted May 19th, 1924, for rendering to the public any service in the way of ferry transportation between said San Francisco and said Tiburón; that said defendants have not, nor have either of them, within ten years last past, rendered, under any franchise or franchises now held by them, or either of them, any service between San Francisco, Belvedere and/or Tiburón.” The foregoing allegations would indicate a “nonuser” or “abandonment” of said franchise, but there were further allegations contained in said amended complaint which conflicted with, or at least modified, the foregoing allegations. It was alleged that “defendants, and each of them, are and at all times herein mentioned have been corporations . . . authorized to engage in, and actually engaged in the transportation of persons and property by ferry between the City and County of San Francisco and points in Marin County, Cali

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fornia, particularly Sausalito, Belvedere and Tiburón”. It was further alleged that defendants had theretofore operated and were then operating boats on two round trips per day between San Francisco and Tiburón. Then followed allegations that said boats were operated solely as a ‘‘sham and pretense” for the purpose of holding defendants’ franchises.