100 P. 820 | Ariz. | 1909
Lead Opinion
This is an original proceeding in this court to obtain a writ of mandamus directed to the district attorney of Coconino county, commanding him to institute quo war-ranto proceedings in the district court of Coconino county to determine by what right one Ralph H. Cameron is exercising a franchise to maintain and collect tolls upon a trail in that county leading down from the rim of the Grand canyon of the Colorado river, and known as the “Bright Angel trail.”
The respondent has interposed to the petition an answer in the nature of a plea in abatement, setting forth that petitioner is not a taxpayer or a resident of Coconino county, and therefore that he is not the real party in interest, nor any party in interest in the subject matter of the petition. To this answer the petitioner has demurrer. Paragraph 3794, Civil Code of 1901, under the title of “Quo Warranto,” provides as follows: “3794 (section 1). An action may be brought by the district attorney, in the name of the Territory, upon his own information or upon the verified complaint of any person, in the district court sitting for the county for which he is district attorney, against any person who usurps, intrudes into or who unlawfully holds or exercises any public office or any franchise within said county; and it is his duty to bring the action whenever he has reason to believe that any such office or franchise is being usurped, intruded into or unlawfully held or exercised: Provided, that any person
Following the special, plea of which we have just disposed, the respondent has interposed a general demurrer to the petition. For purposes of our adjudication of this demurrer, we may state sufficient of the facts appearing in the petition without setting forth the petition in its entirety. The main controversy hinges upon the validity of chapter 55 of the laws enacted by the twenty-fourth legislative assembly, in 1907, amendatory of Civil Code of 1901, paragraphs 3998-4009, prescribing the terms upon which toll-roads may be constructed and maintained within the territory. Pursuant to the provisions of paragraphs 3998-4009, prior to its amendment, one Berry constructed the “Bright Angel trail” and operated it as a toll trail. All of the provisions of that chapter were complied with by Berry. Subsequently Berry undertook to convey his franchise to one Ralph H. Cameron, who took possession of the trail under the conveyance and collected tolls thereon. Proceedings in quo warranto were instituted against Cameron in the district court of Coconino county which resulted, in the year 1903, in a judgment of ouster upon the ground that the franchise acquired by Berry was not transferable. Paragraphs 3998-4099, supra, provided that the toll-road franchise should exist for ten years, renewable for an additional period of five years under certain conditions. -The franchise in question was extended. The maximum life of the franchise under the extension was reached on January 31, 1906. On February 1, 1906, the board of supervisors of Coconino county, acting under the provisions of paragraph 4004, entered into a contract with one Ferrall for the maintenance of the trail and the collection of tolls thereon in the interest of the county. Ferrall took and retained possession thereof under that contract until April 17, 1907. On March 18, 1907, chapter 55, above referred to, became a law. This amendatory law provided, among other things: That the term “toll-road,” as used in paragraphs 3998-4009, shall be construed to include trails and to have included trails from the time of its enactment; that all rights and franchises provided for by paragraphs 3998-4009 shall be transferable, and shall be deemed to have been transfer
Petitioner attacks the enactment upon the ground that it is unlawfully retroactive in so far as it attempts to define what the legislature meant by “toll-road” when the amended act was originally enacted, and in so far as it attempts to validate theretofore void conveyances, contending that the purpose of the legislature and the effect of its act, if held valid, are to reverse decisions of this court and of the district court of Coconino county under which it was held (as petitioner contends) that the words “toll-road” did not comprehend a trail, and that the franchise conferred by the statute was not assignable. Without attempting to review the array of authorities presented in support of the views of petitioner and respondent
Tlie expression is accurate and fully describes the operation of the statute under consideration in this case. Here the grant is complete and available, and the law embodying the grant is operative from the moment of its passage by the legislature. Yet until it is availed of by the optional act of some person, by filing the necessary description of his proposed toll-road and by complying with the other statutory requirements, there is actually no franchise in existence. What the person does who avails himself of the law is, however, not to create the franchise, but to avail himself of the creative act which, when availed of, is self-operative as a present grant of a franchise. In the case now before us, when it comes to the matter of extending the franchise, or continuing its operation by contract, a new party is brought into the transaction. The franchise is not extensible exclusively at the option of the franchise holders, but by the concurrent option of the board of supervisors. When the board of supervisors gives that option, they are not creating the franchise or granting a privilege ; they are making available to the franchise holder, or the contractor, a continuation of the franchise already created and granted by the general act of the legislature and in the manner there prescribed. It is comparable somewhat, as already noted, to the vote of the stockholders by whom the franchise of a private corporation may be extended for a period. It is more directly comparable to the approval of a franchise by popular vote such as is required by our general laws, for the inception of a public utility franchise within one of our cities. The legislature by its general act has provided that franchises for the operation of street railways and other public utilities may be enjoyed by one who seeks such a franchise, if upon the submission of the question to popular suffrage a majority of the votes shall be found in favor of the franchise. Here, as in the extension of a toll-road franchise, there must concur the exercise of the option of two parties. Those. voting their approval are not exercising a legislative function. They are exercising an option upon which the enjoyment of the franchise grant is conditioned. In so far as the legal analogies and proprieties are concerned, it makes no difference whether the option is left to the body
The last objection raised by petitioners to the act is based upon the fact that since the construction of the Bright Angel trail, but prior to the passage of chapter 55 in 1907, the Grand canyon forest reserve was created by presidential proclamation, and that the Bright Angel trail is within the boundaries of that reserve. It is contended that the exercise of this franchise under the act of the legislature is a regulation of a highway within that reservation, and hence in conflict with the provisions of the United States laws vesting in the Secretary of the Interior the control of highways over forest reservations. Act June 4, 1897, c. 2; 30 Stat. 35, 36 (U. S. Comp. Stats. 1901, pp. 1540, 1541). It is sufficient answer to this contention to point out that the act referred to seems in terms
These are the only points to which our attention has been directed as the basis for petitioner’s contention that it was the duty of the district attorney to institute the proceedings in quo warranto to command which our writ of mandate is sought.
It follows that the exercise of discretion by the district attorney was sound, that the demurrer to the petition must be sustained, and the writ denied.
It is so ordered.
Concurrence Opinion
I concur in the judgment and in the views expressed by Mr. Justice MAYE, except that I am of the opinion that the demurrer to the plea in abatement should be overruled. I am of the opinion that the petitioner must show that he is “beneficially interested” in having the right of Cameron to maintain the franchise in question determined by quo warranto.
Concurrence Opinion
I concur in the result and in the views expressed by Mr. Justice SLOAN.