USA > California > Alameda County > History of Alameda County, California : including its geology, topography, soil, and productions > Part 69
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But let us have a glance at what was transpiring on the spot. On December 5, 1853, Horace W. and Edward R. Carpentier executed a lease to Edson Adams and Andrew Moon, "for the period of twenty years, an equal, undivided two-third interest" in and to the following described premises in the town of Oakland, county of Ala- meda, California, the same being a beach and water lot, bounded as follows: Com- mencing at a point in the easterly line of Broadway, protracted four hundred and twenty feet southerly from the southern line of First Street; thence running easterly on a line parallel with First Street one hundred and five feet; thence running northerly on a line parallel with Broadway fifty feet; thence running westerly on a line paral- lel with First Street one hundred and five feet to the easterly line of Broadway con- tinued; thence southerly along said line fifty feet to the place of beginning, being the same lot on which the store-house erected by the said parties is now standing," for the the sum of two thousand dollars. It is in this transaction that either Edson Adams or Andrew Moon appear in the roll of lessees, although it was pretty generally acknowl- edged that the former claimed one-half of the entire property, and, indeed, did event- ually obtain his share by forcible measures, subsequently selling it to the Central Pacific Railroad Company for a large sum.
We last left the citizens of Oakland entertaining a dim idea that all was not as it should be in regard to the transfer of the water front to Horace W. Carpentier, and that the Board of Trustees had declined to entertain their petition that steps should be taken to recover them. For this and several other cogent reasons a riot was apprehended; therefore, on October 22, 1853, it was ordered that "circumstances appearing to endanger the destruction by riot of the town records, the clerk is author- ized to remove them to a place of safety." This was done, a fact which may account for the non-appearance of several very valuable documents. That the exasperated mob took their revenge upon the property of Carpentier is, however, to be gleaned from the statement of the records, as on November 19th of the same year we find that the President laid before the Board of Trustees a certified copy of a summons and complaint in the case of Horace W. Carpentier versus The Town of Oakland, in a suit for four thousand five hundred dollars, damages to the plaintiff's property from a mob or riotous assemblage, to which, on motion of Mr. Moo1, the President, an answer was directed to be filed. This was ordered to be transferred, by consent, from the District Court of Alameda County to the Superior Court of the city of San Francisco on January 18, 1854, and on the 11th February H. P. Watkins was employed as counsel to defend the cause, but on February 18th an ordinance was passed com- promising the suit.
And now followed the incorporation of the city of Oakland on March 25, 1854, and in accordance with the charter an election was duly held, and Horace W. Car-
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OAKLAND TOWNSHIP-CITY OF OAKLAND.
pentier receiving one hundred and ninety-two votes was chosen the first Mayor, who, on April 29th, forwarded to the City Council his first message, an able and exhaust- ive document. But soon the air became oppressive, for trouble commenced to break through the clouds; the councilmen elected. were decidedly antagonistic to Mr. Car- pentier, and to his claims upon the water front. Besides, the Board of Trustees dis- played much unwillingness to transfer the papers and public moneys in their charge to the newly-elected City Council, although they subsequently did so in a very confused and incomplete condition, that is, as regards the papers, for the treasury had been attached in the hands of the Marshal by Colonel John C. Hays, and legal process was necess ry to release it. The storm soon burst. On August 5, 1854, at the meeting of the City Council, Alderman A. D. Eames presented Ordinance No. 34, entitled, "An Ordinance to provide for the construction and maintenance of a Wharf in the city of Oakland," and which reads as follows :-
SECTION ONE .- For the purpose of facilitating the commerce of said city and the travel to and from the same, there shall be and there is hereby established a street and wharf from a point on the Encinal in the southerly part of the city limits (to be selected and designated as hereinafter provided) to the nearest deep water in a westerly direction from said point and within the city limits, on the following conditions, viz .:
SECTION Two .- There is hereby granted to the person or persons who shall become the best bidder for the same under the following conditions-the right and franchise of building a wharf and collecting the wharfage thereon, on a wharf to be constructed at said point and to said deep water, for the term of fifty years.
SECTION THREE .- The said grantee or grantees shall also have the right to take, use, possess, and enjoy for said term of years a lot, strip, or parcel of land and water one hundred yards in width along the line of said wharf from the beach to the boundary line of the city.
SECTION FOUR .- Said grantee or grantees shall have the right to form an association and stock company for the construction of said wharf, or to make the same into stock of convenient shares.
SECTION FIVE .- The said right of franchise for the construction and maintenance of said wharf, together with the use of the land for the same, shall be offered at public auction as required by the charter of said city, and the person or persons responsible for the same, who will offer the largest percentage on the business of said wharf, shall be declared the best bidder, and to him and them shall be awarded the said right, title, and franchise for the term aforesaid.
SECTION SIX .- It shall be the duty of the Council to enter into a written covenant with the said contractor and grantee, expressing the foregoing contract and conveying such franchise, and the use of said land in appro- priate language.
SECTION SEVEN .- There is hereby granted to said grantee or grantees, the exclusive right to regulate the use, terms of landing, and rates of wharfage of said wharf, land and water, to the extent above expressed, providing they don't exceed the rates of wharfage at present charged in Oakland.
SECTION EIGHT .- The.said wharf, fit for use, shall be constructed within one year from the execution of the covenant aforesaid.
SECTION NINE .- H. P. Watkins, S. B. McKee, and William Hillegass are hereby appointed commis- sioners to locate said wharf and lands and to advertise and conduct the sale of the same, and to make a report thereof to the Council when such sale shall have been concluded.
SECTION TEN .- The grantee or grantees shall not hold the city responsible for any damages accruing to them from such grant as is made under this ordinance. But nothing herein contained shall be construed into any acknowledgment on the part of the city of the right of ownership of others to any part of the water front of the city except herein provided.
The ordinance was passed at the regular meeting of the Council held August 6, 1854, and on the 19th four separate petitions, signed in all by one hundred and seventy citizens, were received in favor of building the wharf on the southwestern corner of the Encinal. At the same session, August 19th, the ordinance above mentioned having previously been sent to Mayor Carpentier for his signature and approval,
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HISTORY OF ALAMEDA COUNTY, CALIFORNIA.
was returned to the Council with the following message, which, being in a measure his views on his tenure of the city water front, we produce in extenso :-
"TO THE COMMON COUNCIL :- A bill for an ordinance entitled 'An Ordinance to provide for the construction and maintenance of à wharf in the city of Oakland, has been presented to me and is herewith returned without my approval.
"My objections to the ordinance go both to its form and its substance: to its form because it is careless and illegal in its terms, and contains no provisions of safeguard to the city: to its substance, because, first, it is calculated to involve the city in long and costly litigation, and exposes her to ruinous losses by way of awarded damages, and, secondly, because it is in open violation of private rights and in contempt of that good faith which should mark the transactions of corporations as well as of individuals. . "In Section First of this ordinance the corporation, by an act of positive and arbitrary legislation, lays and establishes a wharf upon private property without the con- sent of the owner thereof, and, in Section Second, it sells the right and franchise of build- ing the same and of collecting wharfage thereon. If this ordinance proposed merely to part with the right and interest of the city, unless that right and interest were clearly ascertained and definite, it would still be an act of sufficient gravity and importance. In this case, however, the city undertakes to grant and convey real property already granted and regranted to others, and to sell certain positive, specific and substantive rights and franchises not owned by the city, under the terms and obligations of a contract of bargain and sale, which she is bound by every rule of law to make good and defend.
"' Right and Franchise' is a term of definite legal signification, and the sale of a right and franchise is in contemplation of law a declaration of ownership on the part of the granter, and is equivalent to a special warranty from the consequence of which nothing short of a release in clear and explicit language can relieve the grantor. In such covenants it is the rule of law to interpret them most strongly against the grantor. Nothing is taken in his favor by implication or intendment.
" Section Four provides for the formation of a private corporation. Corporations are the creatures of sovereign power, and a mere municipality cannot, as such, pro- vide for their establishment. The charter of Oakland has not delegated to the City Council the exercise of any such extraordinary power, and nothing can legally be done under the charter but what is therein specially authorized, or is necessarily inci- dent thereto. Besides, the Constitution has imposed certain restrictions and limita- tions to the power of the Legislature to create corporations and joint-stock compa- nies which the City Council in this proposed creation have entirely neglected.
" Section Five provides for selling the right of franchise for the construction and maintenance of the wharf and the use of certain lands to the person who will offer the largest percentage on the business of the wharf, who is to be declared the 'best bidder.' This is an evasion of the section of the charter, which provides that sales or leases shall be to the the highest bidder. It authorizes the sale of lands and fran- chises with a limitation in effect that none shall bid beyond a certain price, whilst it leaves it entirely with the grantee to determine whether the city shall ever receive a farthing by giving him full power to fix the rates of wharfage and terms of landing.
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OAKLAND TOWNSHIP-CITY OF OAKLAND.
Such a sale does not allow the competition which the Legislature intended, and is not the kind of sale to the highest bidder which is contemplated in the charter.
"Section Six provides that the Council shall enter into a covenant, etc., with the grantee. This the Council cannot properly do. The Mayor is the executive officer of the corporation, and the charter provides that he shall sign all contracts on behalf of the city. Experience has generally shown that the public interest is best sub- served by leaving the responsibility of public acts where the law has placed it, and nothing has occurred to warrant the inference that the present executive will hesitate to perform any duty which may devolve upon him. The City Council are the mere creatures of the charter, and they cannot provide a new way of performing an act or discharging a duty when the charter has directed that it shall be done in a specified manner.
" Section Eight provides that the wharf ' fit for use ' shall be constructed within one year. Here there is no guarantee that a suitable wharf will ever be constructed. It is not provided that it shall be of a certain length, width, or strength, that it shall be built after one or another plan, or that it shall be subject to the approval of the city, or equal to the demands of public convenience. 'A wharf fit for use' is the language of the ordinance. One ten feet wide and five yards in length answers this descrip- tion. There are no provisions for keeping the wharf in repair, nor is even the build- ing of it 'fit for use' made a condition precedent to the grant. There are no condi- tions precedent or of avoidance or forfeiture.
" The grant is in terms positive, final, and absolute, and a total and willful failure on the part of the grantee to carry out any of the objects or intentions of the ordi- nance so far from working a forfeiture of the lands and franchise conveyed would not even afford sufficient grounds for a suit to annul the grant.
" So bald is the whole thing of any guarantees of remuneration to the city, or of performance on the part of the grantee as to induce the belief that the ordinance was artfully drawn and imposed upon the City Council under specious pretexts by some designing person whose only object is to involve the city in an expensive litigation with some of her own citizens under the hope of gaining large advantage from the losses of others by speculating in a grant so promising in its pretensions and which imposes no real obligations.
"There are unfortunately persons in every community not particularly distin- guished for enterprise or attention to their own business, who are always eager to agitate and embroil under the hope that out of confusion there will come spoils.
" The proviso in Section Ten is adroitly worded and amounts to nothing as a security to the city. It provides that the 'grantee or grantees shall not hold the city responsible for any damages accruing to them from such grant as is made under this ordinance.' This neither relieves the city from the legal consequences of a failure of the title and franchise which it undertakes to grant, nor does it save her from the pay- ment of such damages and costs of litigation as she would certainly incur by thus arbitrarily disposing of the private property and vested rights of others.
" And in this connection I ask your candid consideration of the fact that the franchise of wharfage and the land proposed to be granted do not belong to the city to grant or control.
496
HISTORY OF ALAMEDA COUNTY, CALIFORNIA.
" The land mentioned is a part of the 'water front of Oakland,' which was ceded by the State to the town in the first Act of Incorporation passed May 4, 1852, for the purpose of enabling the town to construct 'wharves and other improvements,' for which purpose the Act authorized the Trustees of the town to dispose of the land so granted.
" At that time the town had no public improvements nor the means of construct- ing them. There were but few inhabitants and but little taxable property in the city. It became then a matter of the first importance and anxiety in the minds of those who wished to see the young town thrive and prosper that suitable wharves should be built as contemplated by the Legislature, and that common schools should be at once established. But how were these desirable and necessary objects to be accomplished?
" The town had received the water front from the State for the very purpose, and for that purpose was it disposed of by the Board of Trustees. They sold and con- veyed the land, including that mentioned in the bill herewith returned to you to one of her citizens under ample guarantee for the faithful performance of the contract which he entered into to construct three wharves and a school house. And in con- sideration of a percentage upon the income of the wharves, and the care and repairs of the same, and in consideration of the premises, the exclusive right and franchise of wharfage was granted for a term of years to the contractor, and has passed from him into the hands of other citizens.
" This grant was made under an ordinance passed May 27, 1852, to which your attention is respectfully directed. The grantee at once constructed at a large expense the substantial wharf at the foot of Broadway, which was duly approved by ordinance passed December 30, 1852. He also built and delivered to the town the commodious school house now in use on the corner of Clay and Fourth Streets, and subsequently erected the wharf at the foot of Webster Street, both of which were approved and accepted, and the grant reaffirmed in all of its provisions by ordinance passed August 27, 1853, to which you are also referred. The third wharf has also recently been built at the foot of E, now Washington, Street, in final completion on the part of the grantee with the terms and conditions of the contract, and the percentages have been duly paid over from time to time and received by the city.
"These are public acts and matters of record in the office of the City Clerk and of the Recorder of Alameda County, and are existing legal facts not depending upon hearsay nor the treacherous memories of men.
"A report of a Select Committee of the late Board of Trustees on this subject was made in October, 1853, a copy of which is hereunto annexed as exhibiting some of the facts referred to more fully than I have deemed it necessary in this communi- cation.
"To suppose that the grantee would volunteer these costly improvements with no object but to invest his private fortune for the common benefit of the public would be doing violence to common sense and common experience. And for the city to endeavor to retake, or by her consent to permit others to appropriate, the legitimate consideration for those public benefits would be equal violence to common justice and to vested legal rights. Corporations are as much bound to keep faith as individuals, and a disregard of this principle will prove disastrous to the credit and finances of any city.
L.J. Hardy
497
OAKLAND TOWNSHIP-CITY OF OAKLAND.
"I am enabled to state for the information of the City Council that the present owners and holders of the water front and of the franchise connected therewith have expended in this behalf a very large sum, say one hundred thousand dollars, and I am assured they will not submit to any interference with their rights, but will demand and recover from the city full compensation for any losses, costs, or expenses which they may sustain by reason of her illegal acts.
"The conveyance of the water front was a contract binding upon the town and its successor and successors in interest. The consideration in this contract was on one side the percentage payable to the city and the capital invested for her benefit; on the other side the use and enjoyment of the lands and franchise purchased and con- veyed and of the advantages naturally flowing therefrom. On the faith of this con- tract large sums have been expended and much time and labor employed, and any acts on the part of the city, whether directly or constructively, in violation of this con- tract is in fraud of private rights and will meet with no favor from any Court of Justice.
"If the city has cause of complaint, or fancies that she has cause, she should resort to the Courts, which are open to all. But whilst her deeds of conveyance remain of record, and the contracts which bind her conscience are unimpeached, she cannot, with any regard to morality or law, make the grant contemplated by the pro- posed ordinance.
"The Legislature has wisely declared it to be a felony, punishable by heavy penalty, for a person who has once conveyed lands knowingly shall ab initio null and void (sic). If in this case the proposed regrant would not be a criminal offense it is simply because corporations are not in the same manner as individuals amenable to penitentiary punishments, but at least the moral force of such a statute should deter public officers from a willful infraction of the spirit of the law.
"The question of the diversion of travel and business from the neighborhood of the present landing, and the consequent injury to those who have made investments there, I do not propose now to discuss. The injustice and illegality of the measure and the amount of litigation and expense which would fall so heavily upon our young city if it were accomplished, and the injury which would result to her from the further discredit thrown upon her titles, is sufficient to point out the path of my duty, and I therefore withhold my approval of the bill and return it for your reconsideration.
" Mayor's Office, August 14, 1854. H. W. CARPENTIER."
The Council, however, were not to be intimidated; they therefore referred the ordinance to a Special Committee, consisting of Messrs. Eames, Blake, and Kelsey, who were empowered to take the advice of counsel in San Francisco on the subject. Having consulted the law firm of Crittenden & Ingo, these gentlemen gave their opinion-this document is nowhere to be found-which it is presumable was favora- ble to the city, for, at the meeting of the Council, held September 13th, it was moved by Alderman Marier that the ordinance providing for the maintenance and .construc- tion of a wharf be taken up, and carried. This was done notwithstanding the veto of the Mayor, by the following vote: Ayes-Aldermen Eames, Gallagher, Marier, and Kelsey. Noes-Alderman Josselyn. On the 23d September the following com-
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HISTORY OF ALAMEDA COUNTY, CALIFORNIA.
munication, with its inclosure (no trace of which is to be found in the records), was received and referred to the Committee on Public Buildings :-
"MAYOR'S OFFICE, September 14, 1854.
"TO THE COMMON COUNCIL :- Herewith is transmitted to you a copy of a com- munication from the owners of the water front concerning the wharf lately con- structed at the foot of Washington Street, formerly E Street, in this city.
"I have carefully examined said wharf and I find it to have been well and sub- stantially built from the shore to deep water, a distance of five hundred feet, accord- ing to the terms and within the time specified in the contracts providing for its con- struction, and I have accepted it on behalf of the city and in full and final satisfac- tion and discharge of the terms and conditions of the ordinances, grants, and con- tracts for the sale, disposal, and conveyance of the water front of the town of Oak- land.
HORACE W. CARPENTIER, Mayor."
It is curious to note the fact that Mr. Carpentier in this communication arrogated unto himself a prerogative that no single member of a corporation possesses, but which is usually delegated to a committee previous to final acceptance, namely, that of accepting on behalf of a city work in which the individual may be personally inter- ested, as in this case, and which he had performed himself.
On October 7, 1854, we find that a communication from the Attorney-General, having reference to the water front, was presented by Alderman Josselyn, and ordered placed on file, but this important document has also vanished from the records, as has the resolution proposed by Mr. Marier, and passed on the 21st of the same month, whereby the Marshal was instructed to erase from the Assessment Books the impost on the water front. At this juncture the tables were completely turned, and the Carpentier faction were elated, but what suasion was brought to bear upon the Coun- cil so that they should pass the ordinance to repeal "An Ordinance to provide for the construction and maintenance of a wharf in the city of Oakland," which had been passed finally on the previous 15th of September, may never transpire, suffice it to say that his Honor the Mayor won the day and and gave his approval to it (it was passed December 9, 1854) on December 11, 1854.
As a proof of the navigability of the San Antonio Creek, and the consequent . incalculable value of the water front to the city, it may be here mentioned that on January 10, 1855, a resolution to advertise for proposals to remove the bar at the mouth of that stream to admit of free passage was adopted; but let us not antici- pate, this subject will be especially treated elsewhere.
At a special meeting of the City Council, held January 24, 1855, the President gave official information that an outrage had been perpetrated on the previous even- ing which took the shape of an attempt to destroy or abstract the whole or a portion of the records of the city. Mayhap it was in the confusion consequent upon this violent proceeding that the several important documents mentioned were lost, while it is a remarkable coincidence that nearly all of the missing papers refer to this question of the water front. A reward of a thousand dollars was offered for the apprehension and conviction of the perpetrators, but whether they were ever arrested is a matter clothed in the profoundest mystery.
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