History of Alameda County, California : including its geology, topography, soil, and productions, Part 27

Author: Munro-Fraser, J. P
Publication date: 1883
Publisher: Oakland, Calif. : M.W. Wood
Number of Pages: 1206

USA > California > Alameda County > History of Alameda County, California : including its geology, topography, soil, and productions > Part 27

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The Capital being removed from San José, the Town Council sold the State House for thirty-eight thousand dollars, which sum it was intended should be applied to the liquidation of the note mentioned above. The money, it would appear, was not so applied, therefore legal proceedings were instituted by the gentlemen holding the premises in trust for the purchasers, or their representatives, against the city, to obtain the foreclosure of a mortgage executed to them by the civic authorities in 1850, to secure the purchase of the property. A decree of foreclosure was obtained, the public lands brought to the hammer, and bought in by the trustees of the plaintiffs who had organized themselves into a land company, and claimed title to all the pueblo lands, a claim which was resisted to the bitter end by the pueblo authorities.

The question of the legality of the removal was brought up in 1854, before the Supreme Court, when a majority of the Justices, Heydenfeldt and Wells, held that, according to law, San José was the Capital of the State, who thereupon made the fol- lowing order, March 27th :--

" It is ordered that the Sheriff of Santa Clara County procure in the town of San José, and properly arrange and furnish, a Court-room, Clerk's office, and consultation room for the use of the Court. It is further ordered that the Clerk of this Court forth- with remove the records of the Court to the town of San José. It is further ordered that the Court will meet to deliver opinions at San José, on the first Monday in April, and on that day will appoint some future day of the term for the argument of cases.

"Attest: D. K. WOODSIDE, Clerk."

" HEYDENFELDT, J. "WELLS, J.

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A writ of mandamus, on the strength of the above, was issued from the Third District Court against all the State officers, commanding that they should remove their offices to San José, or show cause why they should not do so. The argument was heard and the theory maintained that San José was the. proper capital of the State, whereupon an appeal was carried to the Supreme Court. In the interim Justice Wells had died, his place being filled by Justice Bryant. On the appeal, the Supreme Court decided that San José was not the State Capital, from which decision Justice Heydenfeldt dissented.

Hitherto we have dwelt principally upon the establishment of the State Capital, a matter but little known to the general public ; we will now turn to the particular records of Alameda County, before touching upon which, however, we will briefly allude to the position of Contra Costa County before the year 1853.

POLITICAL HISTORY PRIOR TO 1853 .- In the year 1852, and while Alameda was still a portion of Contra Costa County, an Act providing that " the stream called San Antonio Creek, in the county of Contra Costa, is declared navigable from its mouth to the old Embarcadero of San Antonio, and no obstruction to the navigation thereof shall be permitted," was passed; yet notwithstanding, the question has fre- quently "cropped up" since then, and indeed has been the subject of much legislation not only in our own State Capital, but in Washington also. In this year, too, the town of Oakland was incorporated, the chief promoter of the scheme being Horace W. Carpentier, while early in the following year. the towns of Clinton and Oakland were commenced to be connected by a bridge across the slough of San Antonio, an affair whose history we now place before the reader, as given in a "Statement of Facts," drawn up for the State Legislature by Judge Thomas A. Brown of Contra Costa :-

On October 28, 1852, the Board of Supervisors of Contra Costa County made a contract with T. C. Gilman to build a bridge across the San Antonio Creek, in Oak- land, the contract price being seven thousand four hundred dollars. It was stipulated in the contract that should the Treasurer refuse to pay any warrant or order drawn in favor of Gilman, the Treasurer having in his hands any money belonging to said county, they agreed to pay Gilman a penalty of five per cent. per month, to be deemed an interest. On March 8, 1853, the Board of Supervisors met and accepted the bridge, and made an order directing the County Auditor to draw a warrant upon the County Treasurer, in favor of Gilman, for seven thousand six hundred and sixty-two dollars and fifty cents, being the contract price of the bridge, together with interest thereon at five per cent. per month from the time the bridge had been completed up to the period the order was made. A warrant was drawn (number two hundred and sixteen) by the Auditor, in favor of Gilman, and delivered to him, March 8, 1853, for seven thousand six hundred and sixty-two dollars and fifty cents. The warrant was accepted by Gilman, and on the same day was presented by him to the County Treasurer, and the Treasurer made the following indorsement on the warrant: "Not paid for want of funds; March eighth, eighteen hundred and fifty-three; D. Hunsaker, Treasurer, by A. M. Holliday, Deputy." Gilman retained the warrant. It does not appear that Gil- man presented his warrant to the Treasurer for payment again. On November 15, 1854, Gilman commenced an action against the county of Contra Costa to recover the

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HISTORY OF ALAMEDA COUNTY, CALIFORNIA.

contract price of the bridge, together with five per cent. per month interest from and after March 8, 1853. The cause was tried in Solano County, and judgment was ren- dered in favor of the county. An appeal was taken to the Supreme Court, the judg- ment of the District Court was reversed and a new trial ordered. The cause was again tried in the District Court on January 30, 1856, and judgment was rendered against the county for twenty thousand four hundred and twenty-seven dollars, being the amount of the original contract price of the bridge, with five per cent. interest thereon from March 8, 1853, to the date of the judgment, and the said judgment to bear inter- est at five per cent. per month. On February 14, 1855, an Act was passed funding all the indebtedness of Contra Costa County which accrued prior to April 1, 1855, and the thirteenth section of the act provided that it should not be lawful for the County Treasurer to pay or liquidate any of the indebtedness of said county of Contra Costa, which accrued prior to February 1, 1855, in any other manner than in such Funding Act provided (Statutes 1855, page 12). Gilman did not present his claim to be funded. That on January 10, 1857, Gilman caused execution to be issued on the judgment in his favor, recovered on January 30, 1856, for twenty thousand four hundred and twenty- seven dollars. The execution was levied on all the monies in the county treasury belonging to all Funds. This levy was made January, 19, 1857. On February 25, 1857, the Sheriff, under the direction of Gilman, levied on the Court House, and on March 5, 1857, again levied on the funds in the county treasury. In March, 1857, the county moved the District Court to quash the execution and the several levies. The District Court denied the motion. The cause was appealed to the Supreme Court, and the Supreme Court reversed the order of the District Court, and ordered the exe- cutions should be quashed and the levy vacated, the Court holding that the county buildings were exempt from seizure and forced sale on execution; and also held that the levies upon the revenues in the hands of the Treasurer were illegal and void; that the revenues were authorized by law, and appropriated to distinct purposes, and were not the object of seizure upon execution (8 Cal. Rep., page 58).

On July 9, 1857, Gilman caused another execution to be issued on said judgment, and levied on private property, being an undivided eighth of the San Pablo Rancho. The property was advertised for sale, and the owner, Joseph Emeric, obtained an injunction from the District Court of the Seventh District, enjoining the sale. The case was appealed to the Supreme Court; that Court decided (10 Cal., p. 404) that the private property of an inhabitant of a county is not liable to seizure and sale on execution for the satisfaction of a judgment recovered against the county, and that no execution can issue upon a judgment rendered against the county. Gilman again caused an execution to be issued on his judgment against the county, on April 1, 1858, and levied the same on the funds in the county treasury. A motion was made to set aside the execution and quash the levy; the District Court granted the motion, and Gilman appealed to the Supreme Court. The Supreme Court affirmed the order of the District Court (10 Cal. Rep., p. 508). This left Gilman without any remedy whatever to collect his debt, and the county without any power or authority whatever to pay. The Supreme Court having decided, in the case of Hunsaker vs. Borden (5 Cal. Rep., p. 288), that the county of Contra Costa had no power to pay any of the indebtedness which existed against that county prior to February 1, 1855, in any

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Thos W Mulford

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other manner than as prescribed in the Act to fund the indebtedness of said county, passed February 14, 1855, and that the payment in any other manner was unlawful. Gilman's debt having been contracted prior to February 1, 1855, and he having failed and neglected to fund his debt, he was without remedy. The rights of the parties continued thus until March 14, 1860, when an Act was passed entitled “ An Act providing for the payment of a judgment in favor of Trusten C. Gilman, against the County of Contra Costa." (Stat. 1860, p. 94.) In the preamble of the Act it is recited :-

" WHEREAS, The Supreme Court has affirmed a judgment entered in the Seventh Judicial District Court, in favor of Trusten C. Gilman against the county of Contra Costa, which judgment was entered in said District Court on the twenty-second of March, eighteen hundred and fifty-six, for the sum of twenty thousand, four hundred and twenty-seven dollars, and interest and costs."

The Act provides for levying and collecting a special tax of one per cent. on the taxable property in the county to pay said judgment, together with interest thereon at ten per cent. per annum from its date. The fifth section of the Act provides that the Treasurer of the county of Contra Costa should pay the money collected by virtue of the Act from time to time, upon demand, to said Trusten C. Gilman, his executors, administrators, or assignees, and at the same time take a receipt therefor from his assigns; and have said judgment credited with said payment or payments by the proper party or parties entitled to receive the same; and the said party or parties entitled to receive from the Treasurer the payment of said judgment, shall, before any payments are made by the Treasurer on account of the same, deliver to the Treasurer the warrant heretofore issued in favor of said Gilman, and known as Warrant Number Two Hundred and Sixteen, and the Treasurer shall cancel the same. Section eight of said Act provides that said T. C. Gilman, or his assigns, should be allowed until the first Monday in August next hereafter to make known to the Board of Super- visors of said county his or their acceptance of said amount in full satisfaction and payment of all demands accruing at any time in his favor against the county of Con- tra Costa for building a bridge across the San Antonio Creek; provided, that if he fail to declare said acceptance to the Board of Supervisors on or before the first Mon- day in August next, then said special tax shall not be collected.

That on August 6, 1860, George F. Sharp, to whom Gilman had assigned said judgment, and who was the legal assignee of the judgment, rendered in favor of Gil- man against the county of Contra Costa on March 22, 1856, for twenty thousand four hundred and twenty-seven dollars, with interest and costs, came before the Board of Supervisors of Contra Costa County, and in writing accepted the provisions of the Act of March 14, 1860, in full satisfaction and payment of all demands accruing at any time in favor of said Gilman against the county of Contra Costa for building a bridge across the San Antonio Creek, and he also surrendered to the Treasurer of said county, as provided in said Act, the county warrant, number two hundred and sixteen, for seven thousand six hundred and sixty-two dollars and fifty cents, which was canceled, as provided in the fifth section of the Act. On the same day, August 6, 1860, the Board of Supervisors of Contra Costa County levied a tax of one per cent. on the taxable property of the county, as provided in said Act, for the

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HISTORY OF ALAMEDA COUNTY, CALIFORNIA.

payment of said claim. The payments made by the Treasurer to Sharp, as the assignee of said judgment and in satisfaction of said claim, amounted in the aggre- gate, on June 19, 1862, the time of the last payment, to thirty-one thousand, six hun- dred and eleven dollars and twenty-one cents, that being the full sum due for prin- cipal and interest, as in said Act provided. And upon making the several payments the Treasurer took from said Sharp receipts as follows: "Office of the County Treas- urer of Contra Costa County .- Received from Hiram' Fogg, County Treasurer of Contra Costa County, the sum of ten thousand dollars, lawful currency of the United States of America, in part payment and satisfaction of the judgment recovered by Trusten C. Gilman against the county of Contra Costa. The said sum is paid out of the Gilman Judgment Fund, which was levied and collected in pursuance of an Act of the Legislature of the State of California, entitled an 'Act providing for the payment of a judgment in favor of Trusten C. Gilman against the county of Contra Costa, approved March 14, 1860, and by order of the Board of Supervisors of Contra Costa County, made on the sixth of August, eighteen hundred and sixty, a copy being annexed to this receipt; the said sum is received in part satisfaction of said judgment, in accordance with the provisions of the said Act of the Legislature, and I hereby authorize satisfaction of the amount receipted for to be entered." There were thir- teen different payments made, and thirteen receipts given by Sharp, as assignee of Gilman, to the Treasurer, of like tenor to the above. The debt was fully paid, as provided in said Act, on June 19, 1862.

That on March 15, 1860, prior to the passage of the Act of March 14th men- tioned, George F. Sharp, as the assignee of Gilman, commenced an action in the District Court of Solano County to revive the judgment of March 22, 1856, in favor of Gilman and against the county, for twenty thousand four hundred and twenty-seven dollars, with five per cent. per month interest. Judgment was entered in said action in favor of Sharp, assignee of Gilman, by default, in the Clerk's office, on July 18, 1860, for eighty-five thousand and forty-two dollars and eighty cents. No action was taken by Sharp on this last judgment until long after he had been fully paid, as stated, on and prior to June 19, 1862.

That on July 16, 1865, Sharp commenced another action to revive the last judg- ment of eighty-five thousand and forty-two dollars and eighty cents, against the county. The action was commenced in the Fifteenth District Court in San Fran- cisco City and County. The county defended the action on the ground that the debt had been fully paid, satisfied and discharged. The cause was tried; judgment was rendered in the District Court in favor of the county. The Court decided that the county had fully paid and satisfied the said debt and the said judgment, and ordered and directed that Sharp should cancel and satisfy said judgment of record. Sharp appealed from said judgment to the Supreme Court. The judgment of the District Court was affirmed. The Supreme Court held that the county was not either legally or equitably indebted upon the demand in any sum whatever, but on the contrary, that the county had, under the Act of March 14, 1860, fully paid and discharged the said claim. The case is entitled "Sharp vs. Contra Costa County," and is reported in 34 Cal. Rep., p. 284.

Gilman's claim is now (1872) made to the Legislature for the same identical

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POLITICAL HISTORY OF THE COUNTY.

claim for building the bridge across the San Antonio Creek, and in relation to which the litigation named was had, and the same for which payment was provided in the Act of March 14, 1860, and is the same which was fully paid and satisfied under said Act. His county warrant has been surrendered and canceled; his judgment has been paid, satisfied, and discharged, and satisfaction entered of record; he now makes a claim against the county of over six hundred and seventy-six thousand and ninety dollars upon this claim. It is submitted that the county has not only paid the claim, but has actually paid more than double what was due him according to law. When Gilman received his warrant for seven thousand four hundred dollars, on March 8, 1853, and presented the same to the Treasurer, the Treasurer made the indorsement thereon required by law. From that time the debt drew ten per cent. per annum, interest, and no more. Section ten of the Act concerning County Treasurers, passed March 27, 1850, (Statutes, 1850, p. 115) provides when any warrants shall be pre- sented to the County Treasurer for payment, and the same is not paid for the want of funds, the Treasurer shall indorse thereon "not paid for want of funds," annexing the date of presentation, and sign his name thereto; and from that time till redeemed, said order or warrant shall bear ten per cent. per annum. That section of the Statute has been in force ever since it was passed in 1850. When Gilman accepted his war- rant, and presented it to the Treasurer and procured it to be indorsed by him, and had received it back into his possession, he knew, or was bound to know what the law was; and from that time no officer was authorized by law to pay any greater rate of interest on that debt than ten per cent. per annum. The interest on the debt up to June 19, 1862, the time when the full amount was paid under the Act of 1860-being nine years and three and one-third months, would have been six thousand eight hun- dred and sixty-five dollars, which, added to the principal, seven thousand four hundred dollars, amounted to fourteen thousand two hundred and sixty-five dollars. The county actually paid thirty-one thousand six hundred and eleven dollars and twenty- one cents, being seventeen thousand three hundred and forty-six dollars and twenty- one cents more than was due on the warrant, according to the law concerning indebt- edness of counties.

The facts in this case are fully set out and authenticated in the record on the appeal of the action of Sharp vs. The County of Contra Costa, in the Supreme Court, in the case reported in 34 Cal. p. 284. The transcript, briefs, and decisions of the District Court, with its findings, and the testimony in the case, will be found bound in Volume LXX of California Supreme Court Records, pp. 50 to 102.

The petitioner has no claims whatever upon the county, either legal or equitable; but he has been paid by the county actually more than twice as much as was justly due him, and his present claim is a sham without foundation, and is neither supported by equity nor good conscience, and should be postponed indefinitely.

Ere the segregation of Alameda County, an election for the position of Member of the Assembly was held on March 26, 1853, when three candidates, viz., Horace W. Carpentier of Oakland, Robert S. Farrelly of " Squatterville " or San Lorenzo, and B. R. Holliday of Martinez, entered the field. The election was subsequently contested in the House, and is here mentioned to give to the reader, not only an idea of what the voting strength of the district was then, but also to throw light upon the manner

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HISTORY OF ALAMEDA COUNTY, CALIFORNIA.

in which elections were carried on. The highest number of votes were polled by Mr. Carpentier, against which Mr. Farrelly protested on the ground of fraud, upon which plaint a certificate of election was refused to Mr. Carpentier by the County Clerk, and the matter handed over to be unraveled by the Committee on Elections of the Legislature. Mr. Carpentier claimed five hundred and nineteen votes; Mr. Farrelly, two hundred and fifty-four, and Mr. Holliday one hundred and ninety-two, thus showing a majority of seventy-three votes in favor of the first named. S. J. Clark, attorney for Mr. Farrelly, presented various grounds of objection, and forcibly signified fraud on the part of Mr. Carpentier, as well as collusion on the part of the Board of Judges, Inspectors and Clerks of Contra Costa or Oakland Township. In the examination it was ascertained that the whole number of votes cast in the town- ship was three hundred and seventy-seven, while, according to the testimony of the agent who took the census of the township, but ten short weeks before, there were only one hundred and thirty votes within its limits-a rather unprecedented influx of people in so limited a space of time. It was also declared that it took almost two hours to count the Carpentier tickets which lay in a compact yellow mass at the top of the box, ere any white ones, representing Farrelly, were reached, and yet three of the last voters who cast their ballots at sundown swore positively that they had voted white tickets for Farrelly. An affidavit was made by a man named Ford, that he crossed on the ferry-boat to San Francisco on the day of the election and there found a man called Gilman who said he had thirty-seven workmen for his bridge on board and was arranging for their fare. These men, or some of them, Ford afterwards recognized voting at the polls, while he heard one of them say that he had voted seven times. The Board of Supervisors of Contra Costa County, however, took the view that Mr. Carpentier was duly elected, and made affidavits to that end, and a majority of four to six of the Committee on Elections were of the like opinion, and reported in favor of his taking his seat, in which he was duly confirmed, and sworn in April 11, 1853.

We will now proceed with the recorded events as found in the minutes of meet- ings and proceedings of the Courts of Sessions and Boards of Supervisors.

THE RECORDS .- In the month of May, 1853, the first election of officers took place, when any man who sought official distinction was at full liberty to seek the suffrages of his fellow-citizens. This election was long known as the " steeple chase " for there were from five to six candidates for each office, while many of the would-be county officers appeared in the poll-lists under nick-names. The following gentlemen were eventually elected in accordance with the provisions of the Organic Act: Addison M. Crane, County Judge; A. N. Broder, Sheriff; William H. Coombs, District Attorney; A. M. Church, County Clerk; J. S. Marston, Treasurer; Joseph S. Watkins, Public Administrator; William H. Chamberlain, Coroner; H. A. Higley, Surveyor; George W. Goucher, Assessor; W. W. Brier, Superintendent of Schools. The Senator was Jacob Grewell, who continued to act as Joint Senator for the three counties of Santa Clara, Alameda, and Contra Costa, while the first chosen Member of Assembly was Joseph S. Watkins. The Third Judicial District held sway over this portion of the State, the Judge being Craven P. Hester.

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POLITICAL HISTORY OF THE COUNTY.

1853 .- The first meeting of the Court of Sessions was held in the town of Alvarado on Monday, June 6, 1853, when there were present Hon. A. M. Crane, County Judge; A. M. Church, County Clerk; Andrew H. Broder, Sheriff; William H. Coombs, District Attorney; together with the five Justices of the Peace elect, viz., A. W. Harris, I. S. Long, David S. Lacey, A. Marier and John McMurtry. The first duty undertaken was the selection from among these last-named gentlemen of two to serve as Associate Justices, the choice falling upon Messrs. Lacey and Long, who, after producing their certificates of election, were duly installed, and with the County Judge constituted the first Court of Sessions of Alameda County. Mr. Coombs, the District Attorney elect, then produced his license as attorney and counselor at law, and was duly admitted to practice in open court. The county was next divided into the six townships of Oakland, Contra Costa, Clinton, Eden, Washington, and Murray, as mentioned elsewhere, and thus was the machinery of Alameda put in motion.

On August 4, 1851, the Court of Sessions of Contra Costa County granted a license to H. W. Carpentier and A. Moon to run a ferry "from Contra Costa, in the township of San Antonio, to the city of San Francisco," the tariff being then fixed as follows :-

For one person $1.00

" one horse. 3.00

" one wagon 3.00

" one two-horse wagon. 5.00

" neat cattle, per head . 3.00

" each hundred-weight. . 50

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History of Alameda County, California : including its geology, topography, soil, and productions, Part 27

Author: Munro-Fraser, J. P Publication date: 1883 Publisher: Oakland, Calif. : M.W. Wood Number of Pages: 1206

Author: Munro-Fraser, J. P
Publication date: 1883
Publisher: Oakland, Calif. : M.W. Wood
Number of Pages: 1206