[Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]          Rehearing (Denied, Granted) 51 Cal. 328 at 340.

         Appeal from the District Court, Fifth Judicial District, County of San Joaquin.

         The San Joaquin River takes its rise at a point over two hundred miles a little southeasterly from the city of Stockton. It drains the country lying between the Sierra Nevada Mountains on the east, and the Mount Diablo range of mountains on the west. The country between these ranges of mountains is called the San Joaquin Valley. The valley proper is about thirty miles in width, and the low foothills of the mountains on either side are several miles in width. Stockton is built midway the valley, on a slough of the river, a few miles from where it empties into the head of Suisun Bay. The Stockton and Visalia Railroad Company was a corporation organized prior to December, 1869, for the purpose, according to its articles of association, of constructing and maintaining a railroad from the navigable waters, in the city of Stockton, county of San Joaquin, through said county, and the counties of Stanislaus, Merced, Fresno and Tulare, to a point at or near the town of Visalia, in said county of Tulare. The Stockton and Copperopolis Railroad Company was also a corporation organized in 1865, for the purpose, according to its articles of association, of constructing and maintaining a railroad from the city of Stockton, in the county of San Joaquin, through said county and the counties of Stanislaus and Calaveras, to the town of Copperopolis, in Calaveras County. Copperopolis is in the county of Calaveras, forty-seven miles a little north of east from Stockton. Visalia is in Tulare County, about one hundred and sixty miles a little east of south from Stockton, and is in the San Joaquin Valley. On the 2d day of March, 1867, Congress passed an act granting public lands in alternate sections, on either side of the road, to aid in the construction of a railroad from Stockton to Copperopolis, and designating the Stockton and Copperopolis Company as the corporation entitled to the grant, provided the Legislature of this State designated it as the company to be vested with the grant. The Legislature did so designate it. On the 13th day of September, 1867, the Stockton and Copperopolis Company filed a map in the office of the Secretary of State, designating the line of its road, by which the same ran from Stockton a little north of east to the town of Peters, and thence to Copperopolis. The latter company acquired the right of way for its road to Milton, and, in 1866, graded eleven miles of its road between Stockton and Peters. Work was not resumed on the road until November, 1870, and the railroad was completed to Peters in February, 1871, and to Milton in September, 1871. It has not been extended beyond Milton, and, as a part of the political history of the country, I will state that Congress, since this case was tried in the District Court, has declared its land grant forfeited. The Legislature passed an act, approved April 1, 1870, requiring an election to be held in Stockton, to decide upon a proposition for said city to issue to the Stockton and Visalia Railroad Company three hundred of its bonds, of one thousand dollars each, bearing interest at seven per cent. per annum, payable in twenty years, to aid in the construction of a railroad from the water front of said city, through the county of San Joaquin, and up the San Joaquin Valley, in the direction of the town of Visalia, county of Tulare. If the election was favorable, the bonds were to be issued by the council of the city, and delivered to G. W. Kidd, B. W. Boursand J. M. Kelsey, who were to hold them as trustees for the following use: When the trustees received a written verified statement of the president of the company, that the track had been laid for the distance of five miles from the water front of the city, and that cars and engines were running over the same; and when they received the written statement of the council of the city that said five miles had been constructed and the track laid in a manner and of a character acceptable to them, and that the same was properly stocked, then the trustees were to deliver to the company one hundred of the bonds; so in like manner upon the completion of a second and third five miles; and upon receiving the written statements, the second and third one hundred bonds were to be delivered. An election was held under the act, and the result was favorable to the issuance of the bonds. The council caused them to be made, and delivered them to the trustees.

         The Stockton and Visalia Railroad Company did not file a map or profile of their railroad with the Secretary of State, but, after the result of said election, and after the bonds were delivered to the trustees, constructed a railroad from Peters, up the San Joaquin Valley, in the direction of Visalia, for a distance of nineteen miles and a quarter, to Oakdale, beyond the southern line of San Joaquin County, which was completed on the 20th of September, 1871. On the 28th of September, 1871, the Stockton and Copperopolis Railroad Company, pursuant to a resolution passed by its Board of Directors, conveyed to the Stockton and Visalia Company its railroad from the water front in Stockton to Peters. The latter company did not lay out, or project, or construct a railroad from Stockton to Peters, and had not built any railroad except that from Peters to Oakdale. From Stockton to Visalia, in a direct line, the country is level and entirely practicable for a railroad. The Stockton and Visalia Company, on the 16th of October, 1871, requested the council of Stockton to give the written statement required by the act, but the council refused.

         This action was commenced on the 28th day of March, 1873, and the members of the council of Stockton, its mayor, and the president of its council, and the trustees holding the bonds, were made defendants along with the city. The plaintiff asked for a writ of mandate directing the council of Stocktonto make the written statement required by the act, and to deliver it to the trustees, and requiring the trustees, upon receipt of the same, to deliver to it the bonds. The court denied the writ, and the plaintiff appealed.

         COUNSEL:

         The duty of the council is personal, and solely judicial; a duty placed by the law and by the acts of the partiessolely within the judgment and consciences of its members, and their judgment is made by the act of the Legislature an absolute, indispensable condition to the issuance of the bonds. (McCarthy v. Brooks , 16 Cal. 57; 3 Railway Cases, 298, and 27 Eng. L. & Eq. 35; People v. Canal Board, 13 Barb. 432, 442; Brown v. Overbury, 34 Eng. L. & Eq. 610; Snodgrass v. Gavitt, 28 Penn. St. 221.)

         The petitioner was bound to comply with the act before he could claim the benefit of its provisions. (2 Redf. on Railways, 259, note.)

         A corporation cannot be formed under the statute for the purchase of a railroad already built.

         The charters of said companies contain no such authority. Corporations are bound strictly to follow the letter of their charters. They can exercise no power unless granted to them, or absolutely necessary to carry out the power so granted. (Smith v. Moore , 2 Cal. 524; People v. The Troy House Co., 44 Barb. 625; Wood et al. v. Truckee Turnp. Co. , 24 Cal. 474.) Cannot be sold at forced sale. (Monro v. Thomas , 5 Cal. 470; Redf. on Railways, 419, 422.) Cannot be sold by voluntary assignment, unless by consent of government.

         The deedattempts to separate the road from the franchise, which cannot be done. (2 Redf. on Railways, 412; Note case 2 Gray 1, and 474 Cal. cited above; Tucker v. Tower, 9 Pick. 108; 3 Kent's Com. 532, 8th ed.; Commonwealth v. Wilkinson, 16 Pick. 176; N. Y. & Erie Railway v. Carey, 26 Penn. 237.

         The purchased road, even if the deed was good, is such a variation from the line laid down in the act of incorporation of the petitioner, and, also, that of the act of April 1, 1870, as would defeat all claim for the bonds. (1 Redf. on Railways, Sec. 165, pp. 390-1; Little Miami Railway Co. v. Naylor, 2 Ohio St. 285.)

         In the case at bar the road called for by the statute never was built. No map of the location of its route was ever filed. The substituted road is not an equivalent. It is not in the same direction, and does not secure the benefits intended to result therefrom. The road to Peters was laid out as part of the Stockton and Copperopolis road.

         " It is a well-settled rule of law, that if a party by his contract charge himself with an obligation possible to be performed, he must make it good, unless its performanceis rendered impossible by the act of God, the law, or the other party. Unforeseen difficulties, howevergreat, will notexcuse him." (Baker v. Johnson , 42 N.Y. 131; Oakley v. Morton, 1 Kern. 34.) " The performance must be exact. (Oakley v. Morton, 1 Kern. 34.)