McGinnis v. Mayor and Common Council

ANGELLOTTI, J.

Application for writ of

mandamus,

prayed to be "directed against the mayor and common council of the city of San Jose, a municipal corporation.

Plaintiff, a resident, citizen, and taxpayer of the city of San Jose, seeks by this proceeding to obtain a writ of mandate requiring the defendants to advertise a pending application

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for a franchise for certain street railroads in.said city, in the manner provided by an act of the legislature of the state of California entitled “An act providing for the sale of street railroad and other franchises in counties and municipalities, and providing conditions for the granting of such franchises by legislative or other governing bodies, and repealing conflicting acts,” approved March 22, 1905. (Stats. 1905, p. 777.) An alternative ivrit was issued upon the filing of the petition. The matter has now been submitted for decision upon a demurrer to the petition.

The questions upon which a decision is desired by counsel are: 1. Whether the act in question is applicable to the city of San Jose; and 2. Whether such act is void under certain provisions of our state constitution. While we fully recognize the importance of these questions, we are met at the outset by an objection to their consideration in this proceeding, which appears to us to be unanswerable. If we assume that the act in question is in all respects valid, and, further, that it constitutes the law applicable in the matter of granting street-railroad franchises in the city of San Jose, we are satisfied that plaintiff would nevertheless not be entitled to the relief sought herein, or any other relief within our power to give upon this application. If this be true, the questions above stated are practically relegated, so far as this proceeding is concerned, to the category of moot or abstract questions, the determination of which in petitioner’s favor could not affect the result. Under such circumstances, we do not feel that this court would be warranted in entering upon their consideration.

It is alleged in the petition that on or about November 21, 1903, the San Jose and Santa Clara Railroad Company, a corporation, filed with the clerk of defendants, and presented to defendants, its petition for the franchise; “that the said mayor and common council propose and intend to grant the said franchise as petitioned for”; that they “have threatened and do now threaten to grant” the same, “without advertising in any manner in any newspaper . . . the fact of said application, and without so advertising any statement that they propose to grant the same, and without so advertising that bids will be received for such franchise and that it will be awarded to the highest bidder”; that each and every one of