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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 such sale, conveyance and transfer shall be made within three years from the date this act shall take effect; and provided further, 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 franehise 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, however, corporations operating any railroad or part of a railroad under lease shall be entitled to purchase such leased property (whether competitive or otherwise), under the provisions and subject to the conditions of this act; 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 purpose 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 other 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. 1899, 178.

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TITLE IV.

STREET RAILROAD CORPORATIONS. $ 497. Authority to lay street railroad track, how obtained-Limi.

tations and restrictions. § 498. Restrictions and limitations, Manner of constructing tracks. $499. Two corporations may use the same track. $ 500. Crossing tracks-Obstructions. $ 501. Rates of fare, speed, etc. $ 502. Time allowed for commencing and completing work—Penalty

- Extension of time. 503. May make further regulations and rules. § 504. Penalty for overcharging. $ 505. To provide and furnish passenger tickets-Penalty. § 506. Proof of agency. $ 507. Reserved rights. $ 508. License to be paid to city or town. { 509. Track for grading purposes. $ 510. Provisions of title III applicable to street railroads. $ 511. Title applicable to natural persons alike with corporations.

AUTHORITY TO LAY STREET RAILROAD TRACK, HOW OB

TAINED-LIMITATIONS AND RESTRICTIONS. Sec. 497, C. C. Authority to lay railroad tracks through the streets and public highways of any incorporated city, city and county, or town, may be obtained for a term of years not exceeding fifty, from the trustees, council, or other body to whom is intrusted the government of the city, city and county, or town, under such restrictions and limitations, and upon such terms and payment of license tax, as the city, city and county, or town authority may provide. In no case must permission be granted to propel cars upon such tracks otherwise than by electricity, horses, mules, or by wire ropes running under the streets and moved by stationary engines, unless for special reasons in this title hereinafter mentioned; provided, however, that such board or body, in granting the right, or at any time after the same is granted, to use electricity or any other of said modes, shall have power to impose such terms, restrictions, and limitations as to the use of streets and the construction and mode of operating such electric and other roads as may, by such board or body, be deemed for the public safety or welfare. En. March 21, 1872. Amd. 1875-76, 76; 1891, 12.

Act limiting time within which franchise may be granted: See post, Statutes at Large, title “Railroads."

Act validating ordinance granting franchise: See post, Statutes at Large, title “Railroads."

Act empowering railroad to use electricity or steam: See post, Statutes at Large, title "Railroads."

Legislative History.

This and the following two sections are taken from sections 1-10 of the street railroad act of 1870, page, 481.

The original section does not contain the proviso and restricts the motive power to horses and mules. The amendment of 1875-76 (Stats. 1875-76, p. 76) authorized cables, and the amendment of 1891 (Stats. 1891, p. 12) authorized the use of electricity and added the proviso.

Section Cited

Omnibus R. R. Co. v. Baldwin, 57 Cal. 167, 176; Schmidt v. Market St. Ry. Co., 90 Cal. 37, 27 Pac. 61; People v. Los Angeles etc. Ry. Co., 91 Cal. 340, 27 Pac. 673; Eisenhuth v. Ackerson, 105 Cal. 92, 93, 94, 38 Pac. 530; People v. Sutter St. Ry. Co., 117 Cal. 611, 616, 49 Pac. 736.

Annotation,

Construction of the Section.—This section does no more than im. pose the conditions upon which a street railway may be privileged to use the streets of a city and empower the local legislative body to grant such privilege. The manner in which such grant may be made is left entirely to be controlled by the charter, or other law of the municipality defining the method for the enactment of municipal ordinances. (Eisenhuth v. Ackerson, 105 Cal. 87, 38 Pac. 530.)

Grant of Right of Way.-An act attempting to grant a right of way over certain streets to a particular railroad is void. All laws must have a uniform operation, and no exception may be made in the manner in which a right of way may be given to a particular corporation, different from that prescribed generally. (Omnibus R. R. Co. v. Baldwin, 57 Cal. 160.)

Under this section the right may be granted to individuals as well as to corporations. (Omnibus R. R. Co. v. Baldwin, 57 Cal. 160.)

*Imposition of Conditions on Grant.-Under the authority of this section a city may require a railroad company to keep a portion of a street improved and repaired, and the acceptance of a franchise under such condition is equivalent to an express agreement by the company to comply with such condition, whether ordered under existing street improvement acts, or subsequently adopted ones, and the cost may be collected in the manner provided for the collection of street assessments. (Schmidt v. Market St. Ry. Co., 90 Cal. 37, 27 Pae. 61. See note: 25 Am. St. Rep. 476.)

No condition can be imposed upon the grant inconsistent with the general statutes, and an attempt to define the time for the commencement of construction, and the completion of the road in the grant is in conflict with the general law and void. (People v. Sutter St. Ry. Co., 117 Cal. 611, 49 Pac. 736.)

Motive Power.- Where a municipality has exceeded its power in attempting to confer the right upon a street railway company to operate its road with electricity, such ordinance may be confirmed by subsequent act of the legislature, and such confirmatory act is not in conflict with section 7, article XII, of the Constitution, inhibiting the legislature from extending any franchise, etc. (People v. Los Angeles Elec. Ry. Co., 91 Cal. 340, 27 Pac. 673.)

RESTRICTIONS AND LIMITATIONS-MANNER OF CONSTRUCT

ING TRACKS. Sec. 498, C. C. The city or town authorities, in granting the right of way to street railroad corporations, in addition to the restrictions which they are authorized to impose, must require a strict compliance with the following conditions, except in the cases of prismoidal or other elevated railways. In such cases, said railway shall be required to be constructed in such a manner as will present the least obstruction to the freedom of the streets on which it may be erected when allowed by the granting power:

First, to construct their tracks on those portions of streets designated in the ordinance granting the right, which must be, as nearly as possible, in the middle thereof.

Second, to plank, pave, or macadamize the entire length of the street used by their track, between the rails, and for two feet on each side thereof, and between the tracks, if there be more than one, and to keep the same constantly in repair, flush with the street, and with good crossings.

Third, that the tracks must not be more than five feet wide within the rails, and must have a space between them sufficient to allow the cars to pass each other freely. En. March 21, 1872. Amd. 1873-74, 212; 1875-76, 77.

Municipal limitations and restrictions: See sec. 497, C. C., supra, and notes.

Legislative History.

For basis of section, see act April 2, 1866 (Stats. 1865-66, p. 750).

The original section did not have the words "except in the cases of prismoidal or other elevated railways. In such cases said railway shall be required to be constructed in such a manner as will present the least obstruction to the freedom of the street on which it may be erected, when allowed by the granting power''; nor the words, in the second subdivision, “and between the tracks, if there be more than one." The third subdivision did not have the words “must have," and read “between the track” instead of “between them."

It was previously amended by act of March 30, 1874, Amendments 1873-74, 212, so as to read like the amendment in the text except that it did not have the words first above quoted, commenting with “except."

Section Cited

Whiting v. Townsend, 57 Cal. 518; Finch v. Riverside etc. Ry. Co., 87 Cal. 599, 25 Pac. 765; McVerry v. Boyd, 89 Cal. 309, 26 Pac. 885; Pacific Ry. Co. v. Wade, 91 Cal. 454, 25 Am. St. Rep. 201, 27 Pac. 768.

Annotation.

Street Improvement or Repair.-A resolution of intention to im. prove a street is not rendered uncertain by the insertion of the clause "except that portion required by law to be kept in order by the railroad company having its tracks thereon." This is the requirement of a general statute, of which the court was required to take judicial notice, and of which every citizen is presumed conclusively to have knowledge. (Whiting v. Townsend, 57 Cal. 515.)

The mere fact that a portion of a street improved was occupied by a street railroad company, whose duty it was to improve, or to hear the expense of improving a part of the street, does not im. pair the prima facie correctness of the assessment. (McVerry v. Boyd, 89 Cal. 304, 26 Pac. 885.)

Under act of April 2, 1866, companies operating street railroads in San Francisco are only required to keep in repair that part of

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