Pool v. Simmons

VAN DYKE, J.

The action is to condemn a strip of land for a ferry-landing, 60 x 145 feet, on the west bank of the Sacramento River, in Yolo County. Judgment went for the plaintiffs, from which and an order denying a motion for a new trial defendants appealed.

1. It is contended on the part of the appellants that the complaint fails to show that the plaintiffs were the owners and holders of a franchise: to erect and construct a ferry, and hence fails to state facts sufficient to' constitute a cause of action. This claim is based upon the fact that the complaint does not show that the franchise in question was sold to the highest bidder under the act of 1893 entitled

“

An act providing for the sale of railroad and other franchises in municipalities, and relative to granting of franchises.” (Stats. 1893, p. 288.) The act in question, by a literal reading, might perhaps be broad enough to include a franchise like the one in question, but to give a construction to the act so as to include a franchise for a ferry over a river between two counties, would lead to great inconvenience, if not to an absurdity. The franchise in this case was for a ferry on the Sacramento River, between the counties of Yolo and Sutter, and was granted under the provisions of the Political Code on that subject. (Pol. Code, secs. 2843 et seq.) It is provided in the Political Code that in such case the application must be made to the board of supervisors of the county on the left bank of the river descending; that the board must fix the bond to be given by the corporation or person taking tolls, and provide for the annual renewal thereof; fix the amount of license tax to be paid per month, payable annually, and fix the rate of toll, which must not raise annually an income exceeding fifteen per cent on the actual cost of the construction or erection and maintenance of the ferry for

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the first year, nor on the fair cash value, together with the repairs and maintenance for any succeeding year; and make all necessary orders and rules relative to the construction and business thereof. The license tax must not exceed ten per cent of tolls annually collected. The board, in fixing the license tax and rate of tolls, must make inquiry into the present actual cash value and cost of all necessary repairs and maintenance, and in all estimates of the fair cash value of the ferry the value of the franchise must not be taken into consideration. The bond to be given must be conditioned that the ferry will be kept in repair, and that the keeper will faithfully comply with the laws of the state and all legal orders made by the board, and pay all damages by reason of any delay at and defect in such ferry. The license tax must be paid to the treasurer of the county granting it, and one half thereof repaid to the treasurer of the county in which the other end of the ferry is located. The owner of the land on the left bank of the river descending is entitled to preference over the owner on the right bank, in procuring authority to construct a ferry. The board, in hearing the application, is vested with the authority to determine whether or not the applicant is a suitable person, and among the rules and regulations it may prescribe the number of boats to be kept, their character, and how propelled; the number of hands employed; the number of trips to be made daily, or whether trips shall be made in the night-time; who may be ferried free of tolls; in case of steamboats, rate of speed; and ■penalty for violation of rules and regulations. It will be readily seen that many of these provisions are entirely inconsistent with the theory that the franchise should be sold to the highest bidder, as provided by the act of 1893. In case the franchise should be sold to the highest bidder, which board of supervisors should sell the same? and would the sale by the board of either county convey any franchise in the other county? and in case each county should sell to different bidders, which one would be entitled to the franchise? Again, a sale to the highest bidder is inconsistent with the provision giving preference to the owner on the left bank of the stream, and the board would have no right to require a bond if the highest bidder is entitled to the franchise. Neither would it exercise its discretion as to whether the applicant was a suitable person. The bidder might have to pay a large sum for the franchise, and the amount so paid could not be considered by the board in