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Robinson v. Southern Pacific Co., 105 Cal. 545-549, and 555, 38 Pac. 94, and 722.
Construction of Section.-Conceded, without deciding, that this section was repealed by the constitutional provision (sec. 22, art. XU) providing for a board of railroad commissioners and empowering them to fix rates and fares. (Robinson v. So. Pac. Co., 105 Cal. 544, 38 Pac. 94, 722.)
PASSENGER TICKETS, HOW ISSUED, AND TO BE GOOD FOR
SIX MONTHS. Sec. 490, C. C. Every railroad corporation must provide, and on being tendered the fare therefor fixed, as provided in the preceding section, furnish to every person desiring a passage on their passenger cars, a ticket, which entitles the purchaser to a ride, and to the accommodations provided on their cars, from the depot or station where the same is purchased to any other depot or station on the line of their road. Every such ticket entitles the holder thereof to ride on their passenger cars to the station or depot of destination, or any intermediate station, and from any intermediate station to the depot of destination designated in the ticket, at any time within six months thereafter. Any corporation failing so to provide and furnish tickets, or refusing the passage which the same calls for when sold, must pay to the person so refused all actual damages caused thereby, with reasonable counsel fees expended in recovering same. En. March 21, 1872. Amd. 1900-01, 600.
The original section had, instead of the last sentences above, the following: “Any corporation failing so to provide and furnish tickets, or refusing the passage which the same calls for, when sold, must pay to the person so refused the sum of two hundred dollars."
Robinson v. So. Pac. Co., 105 Cal. 537, 540, 542-556, 38 Pac. 94, 722; Southern Pacific Co. v. Robinson, 132 Cal. 411, 413, 416, 418, 420, 64 Pac. 572.
Right to Stop-over.- Under this section of the code, a purchaser of a railroad ticket is entitled to stop over at any intermediate station between the station at which the ticket was bought, and the station of his destination, and may resume his journey within six mionths after the purchase of the ticket, and the point named as his destination. His right so to do is not affected by the fact that tłe ticket in terms gives the passenger the alternative right to go to one of two points at the same regular fare, when upon the longer route to one station the other station becomes an intermediate point, and the passenger is not bound to take notice of any rule or regulation of the railroad company, requiring the passenger to ride from the intermediate point by the longer route without stop-over in contravention of the statute. (Robinson v. Southern Pa<ific, 105 Cal. 526, 38 Pac. 94, 722.)
Construction of the Section.-The words "and" and "0" are not ordinarily convertible terors, and the conjunction “and” should not be read disjunctively as equivalent to “or,” unless it is entirely manifest from the context that the intention of the law-making power can only be given effect by holding these terms convertible. Held, accordingly, that the word “and” as it appears in this section should be read conjunctively. (Robinson v. Southern Pacific, 105 Cal. 526, 38 Pac. 94, 722.)
The fact that section 489 of this code was repealed by section 22 of article XII of the Constitution does not carry with it the repeal of this section, which should be read independently of section 489, and continues in force notwithstanding the repeal of the latter section. (Robinson v. Southern Pacific, 105 Cal. 526, 38 Pac. 94, 722.)
The fact that a railroad corporation was organized prior to the adoption of this section, and is not subject to its provisions, cannot inure to the benefit of the lessee of the road, which is a corporation organized under the code, nor exempt the lessee from the obligations imposed upon it as a code corporation. (Robinson v. Southern Pacific, 105 Cal. 526, 38 Pac. 94, 722.)
This section is remedial and was enacted solely for the benefit of the traveling public, and is intended only to apply to one who desires the passage contemplated, and to exercise the stop-over privileges conferred, and to resume the passage without paying further fare. (Southern Pacific v. Robinson, 132 Cal. 408, 64 Pac. 572.)
A passenger acting in bad faith, where the passage was not desired by him, and who does not wish to exercise the stop-over privi. lege, but was repeatedly sought for the sole purpose of having the stop-over privilege refused, in order to lay the foundation for many causes of action to recover the penalties prescribed by this section, is not entitled to the privileges of the section. (Southern Pacific 1. Robinson, 132 Cal. 408, 64 Pac. 572.)
The railroad company owes no duty to furnish a ticket to anyone, unless that person desires to put it to the use for which it was made and issued. (Southern Pacific v. Robinson, 132 Cal. 408, 64 Pac. 572.)
This section does not include persons who are mere pretenders, and who act in bad faith toward the railroad corporation and toward the law, but who in fact desire the refusal of the stop-over privilege, and to pay further fare after stopping over in order to fasten penalties upon the corporation and who are not at all damaged by the refusal of the stop-over privilege. (Southern Pacific v. Robinson, 132 Cal. 408, 64 Pac. 572.)
The legislature only intended to give the stop-over privilege to those desiring to exercise it, and such desire is absolutely inconsistent with a desire to have it refused, in order to lay the foundation for a cause of action, by securing such refusal. (Southern Pacific . Robinson, 132 Cal. 408, 64 Pac. 572.)
CHARACTER OF RAILS TO BE USED.
Sec. 491, C. C. All railroads, other than street railroads and those used exclusively for carrying freight or for mining purposes, built by corporations organized under this chapter, must be constructed of the best quality of iron or street rail, known as T or H rail, or other pattern of equal utility. En. March 21, 1872. Amd. 1873-74, 212. Legislative History.
This section is based on section 57 of the statute of 1861, as amended (Stats. 1862, p. 498). The original section does not contain the words “or steel."
Railroad Commrs. v. Market St. Ry. Co., 132 Cal. 678, 64 Pac. 1065.
Construction of Section.-This section applies to steam or commercial railroads. (Railroad Commrs. v. Market St. Ry. Co., 132 Cal. 678, 64 Pac. 1065.)
ELEVATED OR UNDERGROUND RAILWAYS.
Sec. 492, C. C. The legislative or other body to whom is intrusted the government of the county, city and county, city, or town under such regulations, restrictions, and limitations, and upon such terms and payment of license tax as the county, city and county, city, or town authority may provide, may grant franchises for the construction of elevated or underground railroad tracks over, across, or under the streets and public highways of any such county, city and county, city, or town, for the term not exceeding fifty years; provided, that before granting such franchise there shall be presented to such legislative or other body a petition signed by the owners of a majority of the landed property, other than public property, on the line of said elevated portion applied for. En. Stats. 1895, 242.
TO APPLY TO ALL RAILROAD COMPANIES.
Sec. 493, C. C. This act shall apply to all railroad companies heretofore and hereafter incorporated. En. Stats. 1895, 242.
SALE OF PROPERTY TO ANOTHER RAILROAD.
Sec. 494, C. C. Any railroad corporation, person or persons, firm or corporation, owning any railroad in this state, may sell, convey, and transfer its property and franchises, or any part thereof, to any other railroad corporation, whether organized under the laws of this state or of any other state or territory, or under any act of Congress; and any other such railroad corporation receiving such conveyance may hold and operate such railroad franchises and property within this state, build and operate extensions and branches thereof, and thereunto exercise the right of eminent domain, and do any other business in connection therewith, as fully and effectually to all intents and purposes as if such corporation were organized under the laws of this state; provided, that before such sale, conveyance, or transfer shall become operative, an agreement in writing must be executed by the parties thereto, containing the terms and conditions of the purchase and sale, and its execution must be authorized by the board of directors and ratified by three-fourths of the stockholders of each of the railroad companies that are parties to such conveyance and transfer, and said agreement or conveyance shall be recorded in each county through which said road or roads pass in this state; and provided, further, that no sale, conveyance, or transfer under this act shall relieve the franchise or property sold, conveyed, or transferred, from the liability of the grantor contracted or incurred in the operation, use, or enjoyment of such franchise or any of its
privileges; provided, that this section shall not authorize any corporation to purchase any railroad property operated in competition with it; and provided further, that any or all established rates for fares and tolls for carrying passengers or freight between any points upon any railroad purchased under the provisions of this act, shall not be increased without the consent of the governmental authority in which is vested by law the power to regulate fares and freights; and provided further, that whenever a railroad corporation, which has purchased any line of road under this act, shall for the purposes of competing with any other common carrier lower its rates for transportation of passengers or freight from one point to another upon such line purchased, such reduced rates shall not be again raised or increased from such standard without the consent of the governmental authority in which shall be vested the power to regulate fares and freights; and provided further, that for every violation of the provisions of this act on the part of directors or governing officers of said corporation, the state shall be entitled to recover from such offending railroad company the sum of ten thousand dollars. It is hereby declared to be the duty of the attorney general of the state, in the event of any such violation, to demand and collect from such company the said penalty; and he is hereby authorized and empowered to prosecute all the necessary actions in the name of the people of the state of California against such company in the courts of the state. All money so collected shall be paid into the general fund of this state. En. Stats. 1903, 50.
This was a new section adopted in 1903. There was another section, 494, adopted in 1899 covering the same ground. It is probably superseded by the above section, but as the section adopted in 1903 makes no mention of it, and as the question as to whether it is in force or not can only be determined by judicial decision, it is here appended:
Any railroad corporation owning any railroad in this state may sell, convey, and transfer its property and franchises, or any part thereof, to any other railroad corporation, whether organized under the laws of this state or of any other state or territory, or under any act of Congress; and any other such railroad corporation receiving such conveyance may hold and operate such railroad fran. chise and property within this state, build and operate extensions