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But at any time within three years from the commencement of the work on a street railroad, the grantee of the franchise may, with the consent of the authorities granting the right of way, abandon the uncompleted portion. (People v. Los Angeles etc. Co., 91 Cal. 338, 27 Pac. 763.)
This section does not declare how much work shall constitute a commencement, but there must be a bona fide commencement of construction, and a prosecution thereof with reasonable diligence. (Omnibus R. R. v. Baldwin, 57 Cal. 160, Ross, J., in dissenting opinion.)
When there is an oral agreement that a note given in payment for railroad stock is not to be paid unless the railroad is constructed before maturity, in consideration of the note, upon failure to com. plete the road, as agreed, there is a failure of consideration. (Jefferson v. Hewitt, 103 Cal. 624, 37 Pac. 638.)
Forfeiture.- Held, aliunde, that no forfeiture for a failure to com. mence or complete the road would arise in the absence of a statutory declaration to that effect. (San Pedro v. Railroad Co., 101 Cal. 337, 35 Pac. 993.)
While a forfeiture at common law does not operate to devest the title to the thing forfeited, until a suit is instituted for that purpose, and the rights of the state are established by judgment, yet it is otherwise when a forfeiture is declared by statute. (Oakland etc. R. R. v. 0. B & F. V. R. R., 45 Cal. 365, 13 Am. Rep. 181. To same effect: Ross, J., in Omnibus R. R. v. Baldwin, 57 Cal. 179; Upham v. Hosking, 62 Cal. 258. Distinguished: Arcata v. Arcata etc. Co., 92 Cal. 646, 28 Pac, 676. Note citations: 5 Am. St. Rep. 806, 807; 8 Am. St. Rep. 197.)
Effect of Amendment of 1895 on Prior Forfeiture.— The effect of the amendment of 1895 (Stats. 1895, p. 17) is that the new provisions do not affect existing franchises; that as to them the board cannot exercise the power conferred by the amendment to extend the time for completion. (People v. Sutter St. Ry. Co., 117 Cal. 613, 49 Pac. 736.)
MAY MAKE FURTHER REGULATIONS AND RULES.
Sec. 503, C. C. Cities and towns in or through which street railroads run may make such further regulations for the gove ernment of such street railroads as may be necessary to a full enjoyment of the franchise and the enforcement of the condi. tions provided herein. En. March 21, 1872.
Section 10 of the street railroad act of 1870, page 483, is the basis of this section.
Ex parte Lorenzen, 128 Cal. 436, 79 Am. St. Rep. 47, 61 Pac. 68.
Adoption of Regulations. It is strictly within the power of the municipal authorities, and properly within the exercise of their duties, to pass any reasonable regulations affecting street-car lines, to remedy a threatened or actual interference with the comfort, conTenience, and general welfare of the traveling public. An ordinance regulating the giving and taking of transfers held reasonable and valid. (Ex parte Lorenzen, 128 Cal. 436, 79 Am. St. Rep. 47, 61 Pac. 68.)
PENALTY FOR OVERCHARGING.
Sec. 504, C. C. Any corporation, or agent or employee thereof, demanding or charging a greater sum of money for fare on the cars of such street railroad than that fixed, as provided in this title, forfeits to the person from whom such sum is received, or who is thus overcharged, the sum of two hundred dollars, to be recovered in a civil action, in any justice's court having jurisdiction thereof, against the corporation. En. March 21, 1872.
The basis of this and the following three sections is the act of 1863, page 297, relating to street railroads.
TO PROVIDE AND FURNISH PASSENGER TICKETS-PEN
ALTY. Sec. 505, C. C. Every street railroad corporation must provide, and, on request, furnish to all persons desiring a passage on its cars, any required quantity of passenger tickets or checks, cach to be good for one ride. Any corporation failing to proride and furnish tickets or checks to any person desiring to purchase the same at not exceeding the rate hereinbefore prescribed, shall forfeit to such person the sum of two hundred dollars, to be recovered as provided in the preceding section; provided, that the provisions of this section shall not apply to such street railroad corporations as charge but five cents fare. En. March 21, 1872. Amd. 1873-74, 213; 1883, 84.
For basis of section, see sec. 504, C. C., ante. The original section is substantially the same as the above, except that it does not contain the proviso. The amendment of 1873-74 changed “their” to “its," "fixed” to “prescribed,” and must pay” to “shall forfeit."
PROOF OF AGENCY.
Sec. 506, C. C. Upon the trial of an action for any of the sums forfeited, as provided in the two preceding sections, proof that the person demanding or receiving the money as fare, or for the sale of the ticket or check, was at the time of making the demand or receiving the money, engaged in an office of the corporation, or vehicle belonging to the corporation, shall be prima facie evidence that such person was the agent, servant, or employee of the corporation, to receive the money and give the ticket or check mentioned. En. March 21, 1872. Amd. 1873-74, 213.
For basis of section, see sec. 504, C. C., ante.
The original section is as follows: “Sec. 506. Upon the trial of any action for the forfeiture named in the two preceding sections, proof that the person demanding or receiving such sum of money as fare, or for the sale of such ticket or check, was, at the time of mak. ing such demand or receiving such moneys, engaged on or at any car, omnibus, or vehicle of any railroad belonging to such corporation, is primary evidence that such person so demanding or receiving such moneys was the agent, servant, or employee of the corporation so owning, using or employing such railroad."
Sec. 507, C. C. In every grant to construct street railroads, the right to grade, sewer, pave, macadamize, or otherwise improve, alter, or repair the streets or highways, is reserved to the corporation, and cannot be alienated or impaired; such work to be done so as to obstruct the railroad as little as possible, and, if required, the corporation must shift its rails so as to avoid the obstructions made thereby. En. March 21, 1872, Amd. 1873-74, 214.
Section 9 of the street railroad act of 1870, page 483, is the basis of this section. The original section is as follows: “Sec. 507. Every city, town, or city and county, granting the right to construct street railroads within its limits, must reserve the right to grade, sewer, pave, mracadamize or otherwise improve, alter, or repair the streets or highways permitted to be used by the corporation, the work to be so done by the city or town as to obstruct the railroad as little as possible, and when such works make the same necessary, the corporation must shift its rails so as to avoid the obstructions made thereby.”
LICENSE TO BE PAID TO CITY OR TOWN.
Sec. 508, C. C. Each street railr ad corporation must pay to the authorities of the city, town, county, or city and county, as a license upon each car, such sum as the authorities may fix, not exceeding fifty dollars per annum in the city of San Francisco, nor more than twenty-five dollars per annum in other cities or towns. Where any street railroad connects or through two or more cities or towns, a proportionate or equal share of such license tax must be paid to each of the cities or towns; and no such license tax is due the county authorities where the same is paid to any city or town authority. En. March 21, 1872.
Licenses: See Pol. Code, sec. 3356 et seq.
Section 10 of the street railroad act of 1876, page 483, is the basis of this section.
Under Freeholder Charters. So far as relates to cities having free. holders' charters, it may be doubted whether this section has any further application. (Ex parte Braun, decided Nov. 30, 1903.)
TRACK FOR GRADING PURPOSES.
Sec. 509, C, C. The right to lay down a track for grading purposes, and maintain the same for a period not to exceed three years, may be granted by the corporate authorities of any city or town, or city and county, or supervisors of any city or county, but no such track must remain more than three years upon any one street; and it must be laid level with the street, and must be operated under such restrictions as not to interfere with the use of the street by the public. The corporate authorities of any city or town, or city and county, may grant the right to use steam or any other motive power in propelling the cars used on such grading track, when public convenience or utility demands it, but the reasons therefor must be set forth in the ordinance, and the right to rescind the ordinance at any time reserved. En. March 21, 1872.
Section 11 of the street railroad act of 1870, page 483, is the basis of the section.
FROVISIONS OF TITLE III APPLICABLE TO STREET RAIL
Sec. 510, C. C. Street railroads are governed by the provisions of title III of this part, so far as they are applicable, unless such railroads are therein specially excepted. En. March 21, 1872. Amd. 1873-74, 214.
Title III: See sec. 454, C. C., et seq.
The original section is as follows: “Sec. 510. All the provisions of title III, of this part, are applicable to street railroads, unless where street railroads are therein specially excepted, or the provisions are palpably inapplicable.”
Market St. Ry. v. Hellman, 109 Cal. 577, 42 Pac. 225, 583, 584; Boyd v. Heron, 125 Cal. 454, 58 Pac. 64.
Construction of Section.—Under the rule that “Particular expres. sions qualify those which are general,” the particular expressions of this section are held to qualify and limit the meaning of section 288, to “the laws under which such corporations were formed and exist," and not to the whole body of laws enacted for the govern. m.ent and control of the future acts and conduct of corporations. (Market St. Ry. v. Hellman, 109 Cal. 583, 42 Pac. 225.)