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cows were than those of the city dairies, and what choice, clean, sweet butter he made; and the superiority of his milk over what he denominates the "swill milk" of the city dairies. He taught you how he fed and watered and cared for his cows; and then, with a facial expression of the utmost contempt, he denounced the slop-fed city dairy milk, with all its impurities. He also went into sanitary conditions, and grew eloquent over the pure air his cows breathed ;. while the poor, half starved, slop-fed city cows were diseased from drinking the fouled waters of the Spring Valley Water Company and breathing the impure air of the City of San Francisco. He ontlined how the defendant railroad company might improve the sanitary condition of San Francisco, if they would only build up his dairy and help him to grow rich, and weed out those noxious and disease-engendering city dairies. Thus he went on for over an hour, and to what purpose ? Simply to satisfy all fair minded people that he is a cold blooded business man, actuated by purely and solely his own selfish ends and purposes. He has no public grievance, but, if the defendant railroad would do him the favor to build up his private enterprise, at the expense of similar enterprises in San Francisco, then he would be happy. This complaint is frivolous, unjust, and unworthy of your attention, and would not be brought by any one, except a man like plaintiff, whose selfishness is so great that he cannot resist the temptation of trying to make your honorable body believe that his private desires are matters of public concern.
I. As to his written statement under Subdivision “I" of his pretended reply, we have only to say, that the conditions and factors controlling fares and freights in the Watsonville case are not the same as in this.
II. As to his "Il" statement, wherein he refers to Section 489 of Deering's Civil Code, we have only to say, that that section was long since repealed by the adoption of the new Constitution.
As to his "III" point in his "reply.” the same rule applies as hereinbefore stated, that is, that Section 489 of Deering's Civil Code is now repealed.
Plaintiff's “IV” point is untrue, as the defendant company has not, persistently or otherwise, refused to allow hay to be transferred from vessels to its cars at Mission Bay wharf, where other products, such as grain, coal, and lumber are constantly received and discharged, and where hay can readily be received and discharged; but defendant has refused to receive hay, or allow it to be piled in front of Mission Bay Warehouse No. 1, which is leased to a private party, for the reason that the risk of fire is so great that the insurance on the large warehouse at that point, and the insurance on the grain stored therein, would be vitiated, and to permit hay to be received and piled in front of said warehonse would virtually render said warehouse useless and unprofitable.
As to the plaintiff's "V" point, the same is only an argument on the part of plaintiff, and simply amounts to a showing that the conditions of his business are such that plaintiff has no need for the railroad company, for he makes $5,000 to $6,000 per annum by using teams.
Plaintiff's comparison of this company's charge for freight from San Bruno to San Francisco, with the average charge on all freight moved in the United States and certain individual States, is specious and unfair to this company.
The traffic of our Coast Division is entirely local, the hauls short, and the country served but sparsely populated, when compared with the States cited in his answer.
It is manifestly absurd to make any comparison between a local rate in California for a distance of only fourteen miles with the rates charged on the traffic of a continent, or by the great eastern trunk lines, such as the New York Central, the Erie, the Pennsylvania, the Baltimore and Ohio, and the great coal-carrying roads of the Eastern and Middle States.
It is not true, as plaintiff avers, that our expenses are lower than on eastern roads. On the contrary, as has been so often shown your honorable body, the expenses of California roads are much greater for labor, fuel, and all other supplies, while the volume of traffic is much less, and we are astonished that plaintiff should assume ignorance of a fact so patent to all' intelligent persons, and that he is actuated by only one motive, and that motive is the private gain of Mr. R. G. Sneath.
VI. We are much obliged for the complimentary introductory part of plaintiff's “VI” subdivision of his pretended reply, but we cannot see how this company is to be benefited by the removal of seven thousand five hundred cows to the vicinity of San Bruno. It is a
well known fact that this road brings into this market two thirds of the hay consumed here. If a large portion of this hay is to be stopped at San Bruno in consequence of the dairy industry centering at that point, there will be but little hay to ship from San Francisco to San "Bruno. It is plain that Mr. Sneath's real motive in asking this honorable Commission for a reduction of 50 cents per ton from producing points on this line, and the establishment of a rate of 50 cents per ton from San Francisco, is to enable him to take advantage of the necessities of the producer on the one hand or a glut in the San Francisco market on the other, to the manifest injury and loss of the producer, for whose welfare he pretends to be so solicitous.
VII. As to plaintiff's “ VII” complaint, the defendant is compelled to this regulation, because otherwise defendant would have to build and construct warehouses, simply to hold freight which people neglected to take when delivered at defendant's depots; and defendant is a common carrier and not conducting the business of controlling and managing warehouses. Besides defendant's regulation is not as stated by plaintiff; but twentyfour hours after service of notice upon the consignee of the arrival of the freight, and it can be readily seen that it is not the duty of the defendant as a common carrier to keep warehouses for the shipper's freight, but that it is the duty of the consignee to be ready to take in his freight immediately upon delivery; and a regulation that the consignee is required to receive and take away his freight in twenty-four hours after notice of arrival, is certainly just and reasonable, as the consignee is presumed to know when freight is shipped, and when it will arrive, and should be prepared to receive the same. Any other regulation would put the defendant to large and unreasonable expense, and at the mercy of dilatory and unreasonable men, and delay the speedy and proper action of its large business.
VIII. As to plaintiff's “VIII” objection, we simply say this is the rule of all railroads, and is only a júst and reasonable compensation for the services rendered.
IX. The “IX" complaint of plaintiff is imaginary and illusive, and no part of the business of defendant, and whenever there is a demand for fertilizing material, as spoken of by plaintiff, then there will be time enough to consider the proposition, and besides it is not the business of defendant to make a market for fertilizing material by a reduction of rates of charges below the point of a reasonable compensation. We might say that if plaintiff will furnish better milk and butter to San Francisco than San Francisco dairies, and at a rate much cheaper than Spring Valley water, that in all probability it will greatly build. up his business and destroy "slop” dairies of which he so much complains. This argument is equally as reasonable as plaintiff's. Now plaintiff knows that he cannot furnish milk to the citizens of San Francisco below the price of San Bruno water and carry on his business, and that he is not the especial agent of the Board of Supervisors of San Francisco on the subject of sanitary regulations.
The latter part of complaint “ IX” is readily answered by saying that the distance is too short for the railroad to compete with vegetable wagons, and by saying that there is no demand for the transportation by rail of vegetables from the close district mentioned by plaintiff, and his asking the regulation of freight upon articles which have no existence, is puerile and unfair.
X. As to plaintiff's “X” complaint, we would respectfully state that the defendant is not the Board
of Health of San Francisco, nor endowed by law with any of its powers; and that this honorable Commission has no jurisdiction to enforce on the defendant the duty of fixing and regulating the quality of milk, or improving the sanitary condition of San Francisco as to the deposit of filth.
As to plaintiff's “XI” charge, in the hauling of stone from some quarry for the building of the Unitarian Church, we simply say we know nothing about it. That for short distances, as we have heretofore stated, no railroad can compete with wagons. The rates and charges are not made and based upon short distances to underbid vehicles, but upon a reasonable compensation for the service rendered.
XII. As to the "XII” charge, we admit that such a condition of things will sometimes occur, not only with the defendant, but with all railroads. But the defendant claims that no railroad is required by law, and no just man will expect, that this defendant will keep on hand a large number of idle and empty cars, simply to meet an unexpected demand, because of an unusual or extraordinary season, or an unusual market. Defendant has on hand cars and rolling stock sufficient in quantity and capacity to transport every pound of freight produced along its line in reasonable time for the accommodation of all
its customers. Railroads are not run upon the rise and fall of the market price of products, but upon the supposed necessary and just demands of the business along its road. Defendant has all the cars necessary, and is doing and has done all the freightage of the road, with fairness, impartiality, and dispatch, and at a just and reasonable, and only a just and reasonable, rate of charge.
XIII. In reply to plaintiff's “XIII” and last charge, we deny that the producers of hay and grain along the line of its Coast Division road are in straightened circumstances by reason of the freight rates charged by the defendant; and we aver that plaintiff's gratuitous interference in behalf of the producers along the line of defendant's road does not spring from any want of a reduction of rates in behalf of the producer, who presents no complaint before your honorable body, but from a selfish desire on the part of Mr. R. G. Sneath to accomplish his private and selfish purposes, by making it appear that the producers are interested in his unjust complaint.
Not recognizing the document filed by plaintiff as a pleading, but looking upon the same as an argument, we respectfully request that its prayer be denied. Respectfully submitted.
S. F. GEIL AND H. V. MOREHOUSE,
Attorneys for the Defendant.
DEFENDANT'S POINTS AND AUTHORITIES.
BRIEF OF DEFENDANT.
It will be observed that by Section 489 of the Civil Code, that the Legislature had the power to fix and did fix the charges for freight and fares. Before the adoption of the new Constitution, the Legislature made the rules by which railroads were to regulate the charges of fares or freights, and the railroads looked to the Legislature.
But by Section 22 of Article XII of the new Constitution, this right was taken from the Legislature and given solely and exclusively to your honorable body, and the Constitution says, " it shall be their duty to establish rates of charges for the transportation of passengers and freight by railroad or other transportation companies."
For this “purpose” you have power to “issue subpoenas,” to “hear and determine complaints," and to act in “the same manner and to the same extent as Courts of record," and in the event of a railroad company failing to conform to the rates of charges fixed by you, the railroad company shall be fined not exceeding $20,000, and the rates of charges fixed by you shall in all controversies be deemed conclusively just and reasonable.
Now, then, this constitutional provision puts the defendant company under the absolute control of your honorable body, and the only power left the Legislature is that it may district the State into Railroad Districts (Section 23, Article XII, new Constitution), and that it shall have power to pass laws necessary for the enforcement of the provisions of Section 22, Article XII (Section 24, Article XII, new Constitution), and it is provided by Section 1, Article XXII, new Constitution, that "the provisions of all laws which are inconsistent with this Constitution shall cease upon the adoption thereof."
This law is inconsistent, because by it the defendant railroad company would have to obey an Act of the Legislature fixing the rate of charges, instead of an order of your honorable body; because the Legislature, after the adoption of the new Constitution, has no power to fix rates of charges; because there is a different penalty fixed for the violation of Section 489 by the defendant company, than to an order of your honorable body; because your honorable body has the right to fix, and you have fixed, different rates of charges; because the rates fixed by you shall be deemed conclusively just and reasonable, while the rates fixed by Section 489, C. C., have no such presumption attending them.
We need not cite other inconsistencies, because it is perfectly apparent that the intention of the framers of the new Constitution was to take the right of fixing the rates of charges of fares or freights away from the Legislature and delegate and remand this whole question to your honorable body-a body created and established for no other purposeand when such is the case the Act of the Legislature falls.
In the case of the People vs. Martin, 60 Cal. 153, Section 12 of Article XI of the new Constitution was held to have repealed Section 3360 of the Political Code, because it was apparent that it was the intention of the framers of the new Constitution to take the power of imposing license taxes from the Legislature and vest it in the local authorities."
So by parity of reasoning it is apparent that it was the intention of the framers of the new Constitution to take the power of fixing the rates of charges of fares and freights from the Legislature and vest the same in your honorable body.
And again, by Section 22 of Article I, new Constitution, "The provisions of the new
Constitution are both mandatory and prohibitory, unless by express words they are declared to be otherwise."
Therefore, when the Constitution vests the power absolutely in your honorable body to fix the rate of charges, all other laws or rules of charges are prohibited, and Section 489, C. C., is at once repealed.
This must be true, or else the defendant company would be under the necessity of obeying two masters, exacting two different and conflicting rates of charges, so that, if we obeyed Section 489, C. C., then we would be subject to the $20,000 penalty for violating the rates of charges fixed by your honorable body; but if we obey the orders of your honorable body, then we would be subject to the annoyance of vexatious suits and punitive damages fixed by Section 489, C. c. From this it is clearly seen that either Section 489, C. C., controls the Constitution, or else the Constitution controls Section 489, C. C., and it will not be seriously argued that an organic law like the Constitution of the State can be defeated by a legislative enactment.
It has been held that a statute is repealed by a new statute revising the whole subjectmatter of the first.
Bartlett vs. King, 12 Mass. 537.
Nichols vs. Squire, 5 Pick. 168. It is also held" that a subsequent statute, which is clearly repugnant to a prior one, necessarily repeals the former, although it do not so in terms; and even if the subsequent statute be not repugnant in all its provisions to a prior one, yet if the latter statute was clearly intended to prescribe the only rule that should govern in the case provided for, it repeals the original Act."
Sedgwick on Stat. Con., p. 104. "Where the second Act in pari materia en braces all the provisions of the first, and also new provisions, and imposes different penalties, it repeals the former by implication."
U.S. vs. Tynen, 11 Wall.88.
Sacramento ys. Bird, 15 Cal. 294.
Conley vs. Calhoun, 2 W. Va. 416. So, also, where the later statute imposes a different punishment, as the Constitution does here, the former statute is repealed.
Gorman vs. Hammond, 28 Geo. 85.
So where the same power is given to a different public body, as here in our Constitution your honorable body has been created for the special purpose of fixing rates of charges, the former Act is repealed.
Daw vs. Metropolitan Board, 12 C. B., 161.
Sedg. on Con. of Statutes, 19. It will be clearly seen from these authorities that Section 489 of the Civil Code was repealed by the new Constitution.
First-Because the power to fix rates was taken from the Legislature and given to your honorable body.
Second-Because it was the intention of the framers of the new Constitution to repeal all laws on the subject.
Third-Because Section 489, C. C.. is repugnant to the new Constitution.
Fourth-Because the new Constitution provides a different penalty for failure to put in force the rates fixed by your honorable body.
Fifth-Because the whole subject of rates was changed and revised in the new Constitution.
Sixth-Because the Constitution fixes the only rule on the subject of rates, by making the rates fixed by your honorable body conclusively just and reasonable.
Seventh-Because the new Constitution embraces everything in Section 489, C. C., and adds new provisions.
Eighth-Because the Constitution takes the power from the Legislature, and vests it absolutely in your honorable body.
Ninth--Because the defendant company cannot obey the statute and your honorable body at the same time.
Teuth-Because the entire purpose of the new Constitution was to change the law on the subject of railroads as to rates of charges, etc., and declares that all laws repugnant to its provisions are repealed, and that its provisions are prohibitory and mandatory.
For these reasons we submit that Section 489, C. C., has no existence, and was and is repealed. Respectfully submitted.
S. F. GEIL AND H. V. MOREHOUSE,
Attorneys for Southern Pacific Company.
PLAINTIFF'S DEMURRER TO DEFENDANT'S BRIEF.
Before the Board of Railroad Commissioners.
Plaintiff demurs to the brief of S. F. Geil and H. V. Morehouse, in behalf of the Southern Pacific Company, filed in your office on the third day of September, 1889, on the following grounds:
First-On the ground of surprise, as the plaintiff was not aware of the fact that your honorable body accepted as argument and good pleading the kind of language employed in their brief.
Second–That plaintiff's vocabulary is quite unsuitable, through lack of education, to respond properly on the occasion of a final hearing before your honors, and that further time will be necessary for preparation.
Plaintiff, therefore, submits that he should have a reasonable time granted, in order that he may become more familiar with the language used, and consult with the Hon. J. L. Sullivan, an accepted authority on matters of self defense, and that he should be granted the privilege of reinforcing his arguments with a rapid firing gun, such as are used with cranks, and a knife of the pattern made for the use of Judges.
Plaintiff admits that he has stated in his complaints before your body, that the defendant is and has been charging from five to ten times as much as they do in the Eastern States, for the same service--in transporting freight-and that it is a very serious matter, especially to the plaintiff, but the plaintift believes, and so states, that if his request for reinforcements is granted that he will be able to fully prove his assertions to be true. Respectfully submitted.
R. G. SNEATH,
Plaintiff. SAN FRANCISCO, September 5, 1889.
In the Board of Railroad Commissioners. R. G. SNEATH, SOUTHERN PACIFIC COMPANY (Coast Division). The People of the State of California send greeting to Berry Baldwin, W. W. Chase, Jas. M. Cos
tigan, Frank Dalton, E. Van Every, Jno. Laws, Geo. B. Morrow, A. C. Paulsell, Jno. McCord,
H.C. Summers, J. L. Vermeil, Jacob Eppinger: We command you, that all and singular business and excuses being set aside, you appear and attend before our said Board, at our office at 119 Phelan Block, San Francisco, on Monday, the twenty-fifth day of November, 1889, at 11 o'clock A. M., and then and there to testify in the above stated matter now pending in said Board; and for a failure to attend you will be deemed guilty of a contempt of this Board, and liable to pay all losses and damages sustained thereby by the parties aggrieved, and forfeit one hundred dollars in addition thereto.
Witness, P. J. White, President of said Board, with the seal thereof annexed, this twenty-first day of November, 1889. (SEAL.]
V. W. GASKILL,
Secretary of the Board of Railroad Commissioners. All of above named were served.
CHAS. H. ELDRED,
Bailiff of Commission. Dated November 25, 1889.