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Legislative History.

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30, 1874 (Amendments 1873-74, p. 214); but by section 287 of that act, page 269, other laws passed at that session superseded the provisions of that act, leaving the preceding act of March 28, 1874, in force sixty days after its passage.

Section Cited.

Stoney Hill T. R. Co. v. Placer Co., 88 Cal. 632, 26 Pac. 513.

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Annotation.

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. 5. Supervisors, 88 Cal. 635, 26 Pac. 513.)

And the right of such corporation to exercise 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 F. 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,

En.

drovers, or anyone transporting property over the same. March 21, 1872.

Legislative History.

Section 3 of the wagon road act of 1853, page 114, is the basis of this section.

Annotation.

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 ('al. 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.)

PATES OF TOLL TO BE POSTED AT GATE.

Sec. 516, C. C. The corporation must affix and keep up, at cr over each gate, or in some conspicuous place, so as to be conveniently read, a printed list showing, first, the date when the franchise or privilege under which the right to collect tolls is claimed, was granted and the terms of duration of said franchise; second, the date upon which rates of tolls were last fixed by the board of supervisors; and, third, the rates of tolls levied and demanded. Failure to comply with the provisions of this act shall work an immediate forfeiture of franchise. En. March 21, 1872. Amd. 1900-01, 5.

Legislative History.

This, and the following four sections are based on sections 30, 29, 31, 33, and 32, respectively, of the turnpike act of 1853, page 176. The original section provided only for notice of the rates of tolls, and contained no penalty as above.

TOLL GATHERER MAY DETAIN PERSONS UNTIL THEY PAY

TOLL. Sec. 517, C. C. Each toll gatherer may prevent from passing through his gate persons leading or driving animals or vehicles subject to toll, until they shall have paid, respectively, the tolls authorized to be collected. En, March 21, 1872.

Legislative History.

For basis of section, see sec. 516, C. C., supra.

TOLL GATHERER NOT TO DETAIN ANY PERSON UNNECES

SARILY. Sec. 518, C. C. Every toll gatherer who, at any gate, unreasonably hinders or delays any traveler or passenger liable to the payment of toll, or demands or receives from any person more than he is authorized to collect, for each offense forfeits the sum of twenty-five dollars to the person aggrieved. En. March 21, 1872.

Legislative History.

For basis of section, see sec. 516, C. C., supra.

PERSONS AVOIDING TOLLS TO PAY FIVE DOLLARS.

Sec. 519, C. C. Every person who, to avoid the payment of the legal toll, with his team, vehicle, or horse, turns out of a wagon, turnpike, or plank road, or passes any gate thereon or ground adjacent thereto, and again enters upon such road, for each offense forfeits the sum of five dollars to the corporation injured. En. March 21, 1872.

Legislative History.

For basis of section, see sec. 516, C. C., supra.

PENALTIES FOR TRESPASSES ON PROPERTY OF CORPORA

TION. ! Sec. 520, C. C. Every person who:

1. Willfully breaks, cuts down, defaces, or injures, any milestone or post on any wagon, turnpike, or plank road; or,

2. Willfully breaks or throws down any gate on such road; or,

3. Digs up or injures any part of such road, or anything thereunto belonging; or,

4. Forcibly or fraudulently passes any gate thereon without having paid the legal toll;

For each offense forfeits to the corporation injured the sum of twenty-five dollars, in addition to the damages resulting from his wrongful act. En. March 21, 1872.

Legislative History.

For basis of section, see sec. 516, C. C., supra.

REVENUE, HOW APPROPRIATED-TOLLS TO BE REDUCED,

ETC. Sec. 521, C. C. The entire revenue derived from the road shall be appropriated; first, to repayment to the corporation of the cost of its construction, together with the incidental expenses incurred in collecting tolls and keeping the road in repair; and, second, to the payment of the dividend among its stockholders, as provided in section five hundred and fourteen. When the repayment of the cost of construction is completed, the tolls must be so reduced as to raise no more than an amount sufficient to pay said dividend, and incidental expenses, and to keep the road in good repair. En. March 21, 1872. Amd. 1873-74, 215.

Legislative History.

Section 4 of the wagon road act of 1853, page 114, is the basis of this section. The original section is as follows: “Sec. 521. The entire revenue derived from the road shall be appropriated; First, to repayment to the corporation the costs of its construction, with fifteen per cent per annum interest thereon, together with the incidental expenses incurred in collecting tolls and keeping the road in repair. When the repayment is completed, the tolls must be so reduced as to raise no more than an amount sufficient to pay in. cidental expenses, and to keep the road in good repair.

“The amendment in the text was evidently drawn in conjunction with and refers to the amendment in the same act of section 514. The amendment seems to have been superseded, and in fact never to have taken effect. See note to section 514, C. C., ante."

MAY MORTGAGE AND HYPOTHECATE CORPORATE PROP.

ERTY. Sec. 522, C. C. The corporation may mortgage or hypothecate its road and other property for funds with which to construct or repair their road, but no mortgage or hypothecation is valid or binding unless at least twenty-five per cent of the capital stock subscribed has been paid in and invested in the construction of the road and appurtenances, and then only after an affirmative vote of two-thirds of the capital stock subscribed. En. March 21, 1872.

Legislative History.

Section 19 of the turnpike act of 1853, page 173, is the basis of this section.

Section Cited.

Welsh v. Plumas Co., 80 Cal. 341, 22 Pac. 254.

Annotation.

Mortgage of Corporate Property.-It requires two-thirds vote of stockholders to authorize mortgage, and requires two-thirds vote to ratify mortgage improperly issued. (Forbes v. San Rafael Turnpike Co., 50 Cal. 340.)

It is competent for majority of stockholders at stockholders' meet. ing, to authorize issuance of note by board of directors. Although note is issued without authority of board of directors, a subsequent resolution adopted by majority of stockholders levying assessment to pay the note is a ratification, and makes the note the vote of the corporation. (Forbes v. San Rafael T. Co., 50 Cal. 340.)

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