McFarland, J., 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 should not be applied to any case not clearly within them.
It is strenuously contended by appellant’s counsel that since the present constitution provides for the writ of quo warranto, under that writ alone, brought by the attorney general in the name of the people, and not on the relation of a private person, can there be such an inquiry as the one sought to be inaugurated in the case at bar; but it is not necessary to pass on that question, because, in my opinion, the judgment in the present proceeding cannot, for other reasons, be affirmed.
The chapter of the code which contains the sections in question is entitled, “Actions for the usurpation of an office or franchise,” and nearly all its sections refer expressly to an “office.” Still, section 803 does mention “anj^ franchise”; but surely these provisions, including the extreme penalty which they put in the power of a judge to impose, should be held to be confined to an office or something that beyond doubt is, in a legal sense, a “ franchise.” Section 803 provides that the proceeding may be instituted against any person who “usurps, intrudes into, or unlawfully holds or exercises any public office, civil or military, or anj franchise within the state.” Now, the only material fact found in the case at bar is, that appellant unlawfully exercised what is called the franchise “ of maintaining in and upon Bush street in said city, between Kearny and Webster streets, the tracks and switches of a street railway,” and has claimed the right to complete it to and over certain other streets, and to maintain a railway track thereon. But that was not a “ franchise”; it was a mere right of way. There has always been a well-defined distinction between “ways” and “franchises,” and they are put into distinct categories of [616]property by Blackstone and Kent, and all other standard writers on the subject. (Spring Valley Water Works v. Barber, 99 Cal. 36.) A way may be granted by a private person; a franchise can be granted only by the government, and it is a sovereign prerogative existing in the hands of a subject. A way belongs to the same species of property whether granted by government or by a private person. The ownership of a way granted by public authority is no more a franchise than is the ownership in fee of land conveyed from the government to an individual by a patent. The codes themselves clearly make the distinction, for, in section 502 of the Civil Code, in the title, " Street Railroad Corporations,” it is provided that a failure to do certain things “works a forfeiture of the right of way as well as of the franchise.” This distinction runs through all civil rights and proceedings, and, of course, the fullest force must be given to it when it is invoked in a procedure which is substantially criminal; in which the judge of a court may base his finding upon what he considers a preponderance of evidence, or upon conflicting evidence, in which case the finding could not be disturbed on appeal; where nine jurors could render a verdict; and where the judge, without regard to the rules of procedure-and evidence which obtain in criminal cases, could inflict an exceedingly severe punishment. If the appellant has any franchise which would subject it to the provisions of section 803, it is such as was granted by its incorporation, under the laws of the state, such as, to be a corporation, to exercise certain granted corporate rights, to collect fares, etc.—of which the mere right of way is not one. The franchise which, in the case at bar, is sought to be brought within the provisions of section 803, is alleged to have been granted by the board of supervisors of the city and county of San Francisco, and it is doubtful if the board had any power to grant any franchise to a railroad company (see sections 497, et seq., of Civil Code, and other sections there referred to, and section 4046 of the Political [617]Code); but, at all events, the right of way which is here involved is not such franchise.
These views make it unnecessary to discuss many other contentions made by appellant—as, for instance, that under the constitution no fine can be imposed except in a criminal prosecution in the name of the people; that the city and state have waived their rights in the premises, and are estopped by acquiescing for many years in the rights of appellant here sought to be forfeited, and inducing appellant to spend large sums of money in building its road, and by assessing and accepting taxes thereon; and that there was, in fact, no forfeiture of appellant’s right of way. I think, however, that the court erred in ruling out evidence offered by appellant to show that some of the streets mentioned in the ordinance in question had not been graded and sewered, and that it had completed the road within three years upon the streets that had been so graded and sewered. The ordinance provided in terms that the time should not commence to run until there had been such grading and sewering; and I think that at least with respect to that part of the code which is in its nature a criminal procedure, and for-the purpose of the proper exercise of the discretion of the court as to the amount of the penalty to be imposed, or as to whether any penalty at all should be imposed, the offered evidence was proper and admissible. It certainly was pertinent to the intent of the appellant, which is an important element of a criminal act.
For the reasons above stated I think that the judgment and order appealed from should be reversed.
Rehearing denied.