People ex rel. San Francisco & San Joaquin Railway Co. v. Craycroft

Beatty, C. J. This is an original proceeding in which the petitioner asks the issuance of a writ of mandate to the respondents, commanding them to act upon its petition for leave to extend its railway track through the city of Fresno, and across and along certain streets and lands of said city.

The petitioner is a corporation organized and existing under the laws of California, and by its incorporation authorized and empowered to construct, maintain, and operate a steam railway for the transportation of passengers and freight from a point at or near the bay of San Francisco in a line generally easterly and southeasterly to a point at or near the city of Bakers[546]field in Kern county, a distance of about three hundred and fifty miles. The route of the road as laid out passes through the city of Fresno, and the petitioner has already constructed a section twenty miles in length on such proposed route between Stockton and Fresno. It is necessary for the proper and successful operation of the road that it should be constructed as laid out, and this involves the right to pass through the city of Fresno upon a line and over and across the streets particularly designated in an application which was by the petitioner duly presented to the respondents. But they, instead of passing upon the question as to whether the proposed route was properly located, and the application one proper to be granted, resolved to advertise for bids for the privilege of operating a steam railway over, the route proposed, and determined that they would grant said privilege to the highest bidder, without regard to the question whether such bidder was engaged in constructing a road between the same termini or not. There is not, in fact, any other corporation or person proposing to build such a road, or who could make a bona fide bid in competition with the petitioner, and the award of the privilege sought to any other person would simply prevent the construction of the road through the city of Fresno, and to that extent defeat the purpose for which the petitioner was incorporated.

All these facts are admitted by the respondents, and it is not denied that the course they are pursuing involves a seeming absurdity; but they hold themselves bound to that course by the terms of an act of the legislature approved March 23, 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.)

This act does, in express terms, provide that: “ Every franchise or privilege to erect or lay telegraph wires, to construct or operate railroads along or upon any public street or highway, or to exercise any other privilege whatever hereafter proposed to be granted by the board