Omnibus Railroad v. Baldwin

Sharpstein, J.:

If we do not mistake the theory of the plaintiff’s counsel, it is that the plaintiff obtained the right to lay its tracks upon Montgomery avenue before the defendants obtained a similar right, and that, qui prior est tempore, potior estjure.

If the rule which is invoked on behalf of the plaintiff can be made applicable to this case, it certainly devolves upon the plaintiff to bring its case within the rule; i. e., to show that it acquired its right before the defendants did theirs. And if the seventeenth section of the Act of April 1st, 1872, be constitutional, there can be no doubt as to the priority of the respective claims of these parties. The defendants acquired no shadow of right to lay their tracks upon any public street prior to 1878. By the seventeenth section of the Act of 1872, the Legislature attempted to authorize the plaintiff and the North Beach and Mission E. E. Co. to lay horse-railroad tracks upon certain designated portions of said avenue. At that time, the Act of March 20th, 1870, was in force, which provided, among other things, that “ the trustees, city council, or supervisors of all incorporated cities or towns, or the supervisors of any city or county within the limits of such cities or towns, and the Boards of Supervisors of the various counties outside of such cities or towns, shall have the right to grant to any person or corporation the right to lay down and maintain, for a term not exceeding twenty-five years, an iron railway track or tracks upon any streets or avenues or public highways in said cities or towns, or in said counties outside of said cities or towns, and to run cars thereon, to be propelled by horses (or otherwise as hereinafter provided), and to carry passengers or freight thereon.”

With a slight change in its phraseology, this provision was adopted into the Code, and is now in force. We do not doubt that it falls within the definition of “ a law of a general nature,” and that as such it must have, under our Constitution, “ a uniform operation.” Both the late and the present Constitution declare, that “ all laws of a general nature shall have a uniform operation.” By excepting any particular, persons or corporations from the operation of any such law, the uniformity thereof is at once destroyed. And § 17 of the Act of 1872, if constitutional, does exempt the two corporations named in it from conditions upon which only can any other individual or corporation acquire a similar right. It therefore necessarily follows, that if the act which prescribes how and in what manner individuals or corporations generally may acquire a right to lay street-railroad tracks upon public streets be a law “ of a general nature,” the act which attempts to exempt any particular corporation or corporations from its operation prevents the uniform operation of a law “ of a general nature,” and therefore must be held to be void.

And if void, the plaintiff laid its tracks on Montgomery avenue without any authority or license so to do. It is not the case of a corporation doing an act which it had a right to do upon a certain condition which it omitted to fulfill. In such a case, it might well be held, that the question whether the condition had been complied with could alone be raised by the granting power.

In R. R. Co. v. Leavenworth,, 1 Dill. 393, Dillon, C. J., denied an application for an injunction to restrain the city author-i ties from tearing up and removing railroad tracks which had been laid upon a public street upon conditions specified in the grant to lay them there, which had not been complied with.

But if the Act of 1872 be void, the plaintiff had no right to lay its tracks upon Montgomery avenue, upon any condition. The question is not, whether it has forfeited any right so to do. It never had any such right, and could not forfeit a right which it never had. The defendants acquired the right under the general law to lay their tracks upon a street which the plaintiff occupied without any authority so to do. Have the defendants the right to remove an unauthorized obstruction or impediment to the prosecution of their work? Does the fact, that such obstruction or impediment consists of tracks laid down by other corporations without license or authority, affect the question of the defendants’ rights in the premises? We are unable to perceive, under the circumstances, that the plaintiff’s right of property in its railroad tracks is any more sacred than it would be in lumber and iron which it might have placed upon the street, in any other form. Its right of property would be sacred in either event, but the right to remqve it as an obstruction would not depend upon the form in which it was placed upon the street. If it was placed there without authority, upon what ground can an injunction be asked to prevent its removal? That writ is granted to protect people in their rights, and not to enable them to perpetuate a wrong. We are therefore of the opinion, that if the defendants were the first to acquire the right to construct a railroad upon Montgomery avenue, they have a right to remove any unauthorized obstruction or impediment to the prosecution of their work, including railroad tracks which have been laid there without authority. In all the cases which have been brought to our attention, the tracks which it was sought to have protected from the use of other than the corporations which laid them had been laid in the streets by authority which was not questioned. The distinction between those cases and this is, to our minds, an all-important one.

In San Francisco v. Spring Valley Water Works, 48 Cal. 493, this Court was divided upon the question whether a grant, by a special act to a private corporation, of an easement over a public street, not common to the public at large, would not be repugnant to that clause of the Constitution which provides, that “ corporations may be formed under general laws, but shall not be created by special act.” The question whether certain corporations could be exempted by special act from the operation of a general law applicable to all persons and corporations was not discussed in that case, although Mr. Justice McKinstry said, that “ the Legislature could neither confer a benefit nor impose an obligation on the Spring Valley Water Works not conferred or imposed on all water companies by the general law.” Whether or not the seventeenth section of the Act of 1872 is in contravention of the clause of the Constitution discussed in that case, may still be a moot point, and we do not base our decision of this case upon that clause. And yet it is sufficiently apparent to us, that the clause discussed in that case, like the one upon which we base this decision, was adopted for the purpose of preventing partial legislation, such as is attempted by the seventeenth section of the Act of 1872. Under the Act of 1870, it was undoubtedly competent for the municipal authorities to grant rights of way upon reasonable conditions. (Railway Co. v. Mayor etc. of Baltimore, 21 Md. 93; R. R. Co. v. Leavenworth, 1 Dill. 393.) And the Civil Code expressly confers that power upon such authorities. (Civ. Code, § 497.) By the seventeenth section of the Act of 1772, an attempt is made to deprive the city and county of San Francisco of the light to impose any conditions upon the corporations named in said act. It discriminates in favor of said corporations, and against said city and county.

It is suggested, however, that the right subsequently granted to the plaintiff by the Board of Supervisors, coupled with the fact of actual occupation under it, entitles the plaintiff to the protection which it seeks in this case. The law by virtue of which these grants were made must be our sole guide in determining this question. Under that law, the defendants were granted a right of way on Montgomery avenue, from its intersection with Montgomery street to Union street; and the plaintiff, was subsequently granted a right of way over the same avenue, from Montgomery street to Powell street. If these grants are valid, two railroad corporations are entitled to use the same street for a distance of more than five blocks, and that, too, without each paying an equal portion of the construction of the track. The law provides, that “ two corporations may be permitted to use the same street, each paying an equal portion for the construction of the track; but in no case must two railroad corporations occupy and use the same street or track for a distance of more than five blocks.” (Civ. Code, § 499.)

The first clause of this section clearly means, that a right to use the same street cannot be granted to more than two corporations in any case, and if granted to two, it must be upon the condition that both use the same track, and that each pay an equal portion of the cost of constructing it. The second clause contains nothing which conflicts with the construction of the first; but simply adds another limitation; viz., that “in no case must two railroad corporations occupy and use the same street or track for a distance of more than five blocks.” If the provision of the first clause had been, that two railroads might use the .same trade, each paying an equal portion for the construction of it, there might be some difficulty in determining what it meant. But when it permits them to use the same street on that condition, and on that condition only, the limitation is not at all qualified in that respect by the subsequent clause, which, as before remarked, simply adds a further limitation, which in no sense can be regarded as inconsistent with that contained in the preceding clause. And it may well be doubted, if a case will ever arise in which the wisdom, if not actual necessity, of some such limitation upon the powers of the Board of Supervisors in respect of the granting of these privileges, as is imposed by this section of the Code, will be more forcibly illustrated than it is in this case. The record before us discloses the fact, that the board has granted to three corporations the right of way over the same portion of a public street, each having a right to construct a double track thereon. This might, and doubtless would oftentimes, result in bringing six cars abreast upon said street, which'would, for the time being, prevent the passage of all other vehicles. And at all other times, so large a number of tracks with cars running upon them would interfere unreasonably with the ordinary use of the street. The limitation is not only in the act, but very properly there, and we are not disposed, even if we had the power, which we have not, to modify it in the slightest degree.

We do not doubt, that the grant made by the Board of Supervisors to the plaintiff is absolutely void. (People v. Rich, 54 Cal. 74.)

That the Board of Supervisors may, if it sees fit so to do, grant to the plaintiff the right to use the defendant’s track upon the terms prescribed by law, we entertain no doubt. And we understand that the defendants concede that.

The question whether or not the defendants did sufficient work within one year after obtaining their franchise to save it from forfeiture, remains to be considered. If they did not, it is claimed, upon the authority of The O. R. R. Co. v. The O. B. & F. V. R. R. Co. 45 Cal. 365, that they may be enjoined in this action from commencing work after the expiration of that period. The general law, and the order by which the franchise was granted, required that work upon said railroad should be commenced within one year after the passage of said order, but how much work, or at what point, or in what manner it should be done, is not specified. We find in the transcript an admission by counsel for the plaintiff, “ that the work done by the defendants, at the crossing of Union and Jones streets, was done within one year after the 10th day of October, 1878, the date of the first grant to defendants by the Board of Supervisors.” The Court below declares in its decision, which is incorporated in the record before us, that “ within a year from the grant of the franchise, the defendants commenced the construction of their road.” Whether they did or did not, was a question of fact for the Court below to determine; and there being evidence that work was commenced by the defendants on said railroad within one year after the granting of the franchise, we cannot disturb the order and judgment of that Court on the ground that the amount of work was insufficient, because the law does not prescribe how much shall constitute a commencement. It was entirely competent for the Legislature to have defined what should be deemed a commencement of work. In the absence of any such legislative definition, we are clearly of the opinion, that the amount of work proved to have been done within one year justified a finding that the work had been commenced on said railroad within that period. But the law does not declare that a failure to comply with the provision which requires work to be commenced within one year works a forfeiture, but that a failure to comply with that and the provision which requires that it shall be completed within three years works a forfeiture; and even then, it is optional with the authorities granting the right of way whether the forfeiture shall be total or partial. In view of these provisions, it is quite clear, we think, that the Court, in this proceeding, would not be justified in holding that the rights of the defendants have been forfeited.

Judgment and orders appealed from affirmed.

McKee, J., concurred.