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The provisions of the Civil Code in relation to the consolidation of street railroad corporations (C. C., sec. 473), apply equally to corporations formed and existing before and after the adoption of the code, and this section applies the same rule to the consolidation of all street railroad corporations. (Market St. Ry. v. Hellman, 109 Cal. 584, 42 Pac. 225.)
By this section the provisions of sections 456 and 457 of the Civil Code, relating to "Railroad Corporations, and providing for a bonded indebtedness, are made applicable to street railway corporations. (Boyd v. Heron, 125 Cal. 454, 58 Pac. 64.)
TITLE APPLICABLE TO NATURAL PERSONS ALIKE WITH
CORPORATIONS. Sec. 511, C. C. When a street railroad is constructed, owned, or operated by any natural person, this title is applicable to such person in like manner as it is applicable to corporations. En. March 21, 1872.
Gregory v. Blanchard, 98 Cal. 314, 33 Pac. 199; Railroad Commrs. v. Market St. Ry., 132 Cal. 678, 64 Pac. 1065.
Sale of Corporate Franchise.—A franchise is merely a privilege, and is not the subject of sale and transfer without the consent of the authority by which it is granted. Section 388 of the Code of Civil Procedure provides for the sale of the franchise of a corporation under execution, and this section does not extend the terms of that section so as to include franchises held and owned by natural persons. (Gregory v. Blanchard, 98 Cal. 311, 33 Pac. 199.)
WAGON ROAD CORPORATIONS.
$ 512. Three commissioners to act with surveyor. $ 513. Survey and map to be filed and approved by supervisors. § 514. Tolls, etc., to be collected-Penalty for taking unlawful tolls. § 515. No tolls to be charged on highways or public roads. § 516. Rates of toll to be posted at gate.
517. Toll gatherer may detain persons until they pay toll. § 518. Toll gatherer not to detain any person unnecessarily. § 519. Persons avoiding tolls to pay five dollars. § 520. Penalties for trespass on property of corporation. $ 521. Revenue, how appropriated— Tolls to be reduced, etc. $ 522. May mortgage and hypothecate corporate property. § 523. This title applies to natural persons as well as corporations.
THREE COMMISSIONERS TO ACT WITH SURVEYOR.
Sec. 512, C. C. Where a corporation is formed for the construction and maintenance of a wagon road, the road must be laid out as follows: Three commissioners must act in conjunction with the surveyor of the corporation, two to be appointed by the board of supervisors of the county through which the road is to run, and one by the corporation, who must lay out the proposed road and report their proceedings, together with the map of the road to the supervisors, as provided, in the succeeding section. En. March 21, 1872. Amd. 1873-74, 214.
Wagon road corporation: See ante, secs. 291-294, C. C.
Section 2 of the wagon road act of 1853 is the basis of this section. The original section did not have the first clause down to and including the words "as follows." After the last "supervisors" it had the words “who appointed them.”
Blood v. Woods, 95 Cal. 86, 30 Pac. 129.
SURVEY AND MAP TO BE FILED AND APPROVED BY SUPER
VISORS. Sec. 513, C. C. When the route is surveyed, a map thereof must be submitted to and filed with the board of supervisors of each county through or into which the road runs, giving its general course and the principal points to or by which it runs, and its width, which must in no case exceed one hundred feet, and the supervisors must either approve or reject the survey. If approved, it must be entered of record on the journal of the board and such approval authorizes the use of all public lands and highways over which the survey runs; but the board of supervisors must require the corporation, at its own expense, and the corporation must so change and open the highway so taken and used as to make the same as good as they were before the appropriation thereof; and must so construct all crossings of public highways over and by its road, and its toll gates as not to hinder or obstruct the use of the same. En. March 21, 1872.
TOLLS, ETC., TO BE COLLECTED—PENALTY FOR TAKING UN
LAWFUL TOLLS. Sec. 514, C. C. All wagon road corporations may bridge or keep ferries on streams on the line of their road, and must do all things necessary to keep the same in repair. They may take such tolls only on their roads, ferries, or bridges, as are fixed by the board of supervisors of the proper county through which the road passes, or in which the ferry or bridge is situate, except that in the counties of Klamath, Butte, Del Norte, Plumas, Humboldt, and Sierra, the directors may fix their own tolls, but in no case must the tolls be more than sufficient to pay fifteen per cent, nor less than ten per cent, per annum on the cost of construction, after paying for repairs and other expenses for attending to the roads, bridges, or ferries. If tolls, other than as herein provided, are charged or demanded, the corporation forfeits its franchise, and must pay to the party so charged one hundred dollars as liquidated damages. En. March 21, 1872. Amd. 1873-74, 214; 1873-74, 272.
Sale of franchise under execution: See ante, sec. 388, C. C.
Section 1 of the act of 1857, page 280, is the basis of this section. The original section, in addition to the counties named above, had also “Trinity, Shasta,” and “Siskiyou."
This section was also amended by act of March 30, 1874 (Amendments 1873-74, p. 214); but by section 287 of that act, page 269, other laws passed at that session superseded the provisions of that act, leaving the preceding act of March 28, 1874, in force sixty days after its passage.
Stoney Hill T. R. Co. v. Placer Co., 88 Cal. 632, 26 Pac. 513.
Fixing Rates of Toll.— It is the duty of the board of supervisors of a county, upon application of a toll-road corporation, whose road is within the county, to establish rates of toll, and they may be compelled to fix rates by writ of mandate. (Stoney Hill etc. Co. v. Placer Co., 88 Cal. 632, 26 Pac. 513. To same effect: W. & M. W. R. Co. v. Supervisors, 64 Cal. 69; 28 Pac. 496; Volcana etc. Co. F. Supervisors, 88 Cal. 635, 26 Pac. 513.)
And the right of such corporation to cerci its franchise cannot be determined in proceeding before board of supervisors to fix rates of toll, or in proceeding by mandamus to compel board to fix rates. (W. & M. W. R. Co. v. Supervisors, 64 Cal. 69, 28 Pac. 496. Note citation: People v. Water Co., 33 Am. St. Rep. 183.)
Penalty for Overcharge.—Held also, a failure of the supervisors to fix rates of toll as required by act of April 28, 1857, amending act of May 12, 1853, does not render a person who demands and receives tolls liable for the penalty prescribed by section 31 of the latter act for demanding and receiving excessive tolls. (Culbertson . Kinevan, 73 Cal. 68, 14 Pac. 364.)
And under section 3, act May 12, 1853, a toll gatherer who re ceives more than he is authorized to collect as toll, is not liable for the penalty imposed by that section, unless he also demanded the excessive amount of the person paying the same. (Culbertson v. Kinevan, 73 Cal. 68, 14 Pac. 364.)
NO TOLLS TO BE CHARGED ON HIGHWAYS OR PUBLIC ROADS.
Sec. 515, C. C. When any highway or public road is taken and used by any wagon road corporation as a part of its road, the corporation must not place a toll gate on or take tolls for the use of such highway or public road by teamsters, travelers,
drovers, or anyone transporting property over the same. March 21, 1872.
Section 3 of the wagon road act of 1853, page 114, is the basis of this section.
Tolls on Public Highway.- The grant of a franchise by a board of supervisors to collect tolls is a legislative act, but the court is not precluded from the inquiry as to whether the road was a toll road, or a free public highway. The board of supervisors has no authority to grant a franchise to collect tolls upon a free public road. (Blood v. Woods, 95 Cal. 78, 30 Pac. 129. To same effect: People v. Auburn ete. Co., 122 Cal. 340, 55 Pac. 10; Carter v. Menli, 122 Cal. 369, 55 Pac. 138; El Dorado Co. v. Davison, 30 Cal. 521. Distinguished in Blood v. McCarty, 112 Cal. 565, 44 Pac. 1025.)
All toll roads are public highways, the title to which pertains to the state, and, under, the county government act of 1893 (Stats, 1893, p. 359), the board of supervisors may grant the privilege of collecting tolls in consideration of the maintenance and repair of the road by the grantee. (Blood v. McCarty, 112 Cal. 565, 44 Pac. 1025; People v. Davidson, 79 Cal. 166, 21 Pac. 538; People v. Anderson etc. Co., 76 Cal. 190, 18 Pac. 308; McMillan v. Leitch, 83 Cal. 239, 23 Pac. 294; and People v. Pfister, 57 Cal. 532, distinguished.)
The vacation of a public highway over the line of a former toll road, the franchise of which had expired, operated to destroy the road as a public highway, and to vest the right of way, etc., in the owners of the private lands. The franchise to collect tolls over such a road may be granted by the supervisors. (Carter v. Menli, 122 Cal. 368, 55 Pac. 138.)
A toll-road company incorporated prior to the code, for a period of twenty years, which, during the life of its franchise, elected to continue its existence under sections 287 and 402 of this code, for the term of fifty years, though thereby losing its right to determine its own tolls, yet has the right, for the extended period, to collect such tolls as may be fixed by the supervisors. (People v. Auburn etc. Co., 122 Cal. 335, 55 Pac. 10.)
A grant of franchise to a county to collect toll by act of legislature does not authorize the county to grant the franchise to individuals. (People v. Horsley, 65 Cal. 381, 4 Pac. 384.)
LATES OF TOLL TO BE POSTED AT GATE.
Sec. 516, C. C. The corporation must affix and keep up, at or over each gate, or in some conspicuous place, so as to be con