History of Alameda County, California : including its geology, topography, soil, and productions, Part 70

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

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499

OAKLAND TOWNSHIP-CITY OF OAKLAND.

At the election of March 5, 1855, Charles Campbell succeeded Mr. Carpentier as Mayor, and a new Council was chosen, all of whom held their offices intact until the 28th April, when Messrs. Gallagher and Williams resigning, on the 29th May Messrs. E. Gibbons and Robert Worthington were elected in their stead.

On May 16th, in accordance with the report of a committee appointed to acquaint the Council in regard to certain moneys paid in by Horace W. Carpentier, the following resolution was passed :-

Resolved, That the sum of twenty dollars and sixteen cents for wharf percentage, and fifty dollars for ferry money reported by the Treasurer (May 2d) as being received by him from H. W. Carpentier be rejected by the city and not received by them, as not being money belonging to the city.

Thus showing that in the opinion of the then Council the arrangement entered into with Carpentier was illegal.

There now entered into the breasts of the City Fathers an evident desire to "put their house in order," and at once strike at the root of the evil, for on June 6, 1855, Alderman Gibbons presented the ordinance entitled "An Ordinance repealing an ordi- nance entitled 'An Ordinance concerning Wharves,'" passed October 29, 1853, which abrogated all concessions made in regard to the water front. It was duly approved by Mayor Campbell, became law, and there is no record extant to show that it was ever cancelled by official decree. The next move of the Council, which seemed bent upon giving a death-blow to monopolies, was directed against an ordinance passed in April, 1853, granting to Edward R. Carpentier, the brother of the ex-Mayor, the exclusive right of ferry privileges between Oakland and San Francisco. The initial step in the matter was taken by Alderman Williams, who offered the following resolution :-

IN THE COUNCIL OF THE CITY OF OAKLAND, April 25, 1855.

TO THE HONORABLE, THE LEGISLATURE OF THE STATE OF CALIFORNIA: The Mayor and Council of the city of Oakland, in obedience to what they consider the popular wish in said city, respectfully but strongly and earnestly remonstrate against the passage of any law granting to any person or persons, or body, a monopoly of ferry privileges, between this city and the city of San Francisco.

The resolution was duly carried. On June 6th Alderman Gibbons introduced an ordinance in reference to ferry laws, which, having passed its second reading, was referred to the Committee on Ordinances, who, under date June 14, 1855, made the subjoined report :

The Committee to whom was referred the ordinance for the repeal of an ordinance entitled "An Ordinatice to create a Public Ferry between the town of Oakland and the city of San Francisco, and to provide for the keeping up and running of the same," respectfully report: The ordinance which it is proposed to repeal was passed by the Board of Trustees of the town of Oakland, on March 5, 1855 .* It authorizes and directs the conveyance to E. R. Carpentier, his heirs, agents, or assigns of exclusive ferry privileges "between Oakland and San Francisco, or between the said town or any other place," for the term of twenty years, together with all the ferry rights, privileges, and franchises which now are or may hereafter be held or owned by the town of Oakland.

The ordinance directing this conveyance to Mr. Carpentier is but one of similar ordinances by which the town of Oakland has been unlawfully despoiled of her property, divested of her rights, and retarded in her pros- perity. Prior to the passage of this ordinance, the trustees of the town granted to the brother of said Carpentier all the water front of the town extending to ship channel in the bay of San Francisco, together with the exclu- sive right of constructing wharves and collecting wharfage (without limit or restriction), for thirty-seven years. A mere nominal percentage, without guarantee or security to the town, and amounting, in the course of two or three years to about one hundred dollars, is the only consideration (with the exception of a small frame school house for which no deed can be found) proffered to the town for the aforesaid grants. As trifling as this consideration is, the grantee in the latter case applied to the Board of Trustees, and obtained the passage of an ordinance by which

* This date should be 1853.

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HISTORY OF ALAMEDA COUNTY, CALIFORNIA.

the town assumes all taxes which might be levied upon any wharf or wharves which he had constructed or might hereafter construct. This would render the city liable for the State and County taxes upon said wharves, which, at a moderate estimate, would amount in one year to more than the aforesaid has amounted to in two years; thus compelling the city to pay a premium to the grantees for taking all the property, ferry rights, privileges, and fran- chises which the town of Oakland had, present or prospective, to give away. Under this arrangement the people of the town are plundered of their property, and then taxed to pay the taxes of those who have plundered them, and to support a monopoly which adds its exactions to the measure of iniquity thus imposed upon the community.

As matters now stand, two individuals claim exclusive and entire control over the only outlet through which the farmer can gain access to the market, or the merchant transport his goods. If the grants to these two individ- uals be valid, they can charge whatever rates of freight and wharfage they may choose to exact, and if the article transported should be thus taxed to double its valne, the owner thereof could have no redress. A monopoly which so completely subjects a whole community to the caprice of an individual, cannot stand the test of the law. In the case before us, your committee would suggest that the ordinance which it is proposed to repeal is of itself null and void. To suppose that the town of Oakland has any right to establish such a ferry across the bay of San Francisco, is about equivalent to supposing that she has a right to grant exclusive ferry privileges to the Sandwich Islands. But, however absurd the ordinance in question may be, the impression prevails to some extent that so long as said ordinance stands unrepealed, so long does the city of Oakland indorse the nefarious contract of a Board of Trustees who administered the town government for the especial benefit of two or three individuals, and to the detriment of the community at large. That this impression may be removed, and that any mere shadow of right on which the present ferry monopoly pretends to exist may be dissipated, and that the public may know that the door is open for unlimited competition, your committee report back the ordinance and recommend its passage, with an amendment declaring any contract made under or by virtue of said ordinance null and void.

Oakland, June 14, 1855.

E. GIBBONS, Į L. JOHNSON. J Committee.

No time was lost. At the same meeting the committee introduced an ordinance entitled "An Ordinance Repealing an Ordinance entitled 'An Ordinance to create a Public Ferry between the Town of Oakland and the City of San Francisco, and to provide for and the keeping up and running the same.'" This ordinance, which was passed on June 14, 1855, and approved by Mayor Campbell on the following day, reads :--

THE COUNCIL OF THE CITY OF OAKLAND DO ORDAIN AS FOLLOWS :

SECTION ONE .- The ordinance entitled "An Ordinance to create a Public Ferry between the town of Oak- land and the City of San Francisco, and to provide for the keeping up and innning the same," passed by the Board of Trustees of the town of Oakland, March 5, 1853, is hereby repealed.

SECTION Two .- Any contract made, or purporting to have been made, under or by virtue of said ordi- nance, is hereby declared null and void.

Thus was war declared against monopolies and Carpentier's Water-front claim. To support their action in repealing the ordinance concerning wharves on August 8, 1855, the Committee on Streets and Buildings was authorized to advertise for pro- posals to build a wharf at the foot of Bay Street, opened August 1, 1855. The jetty to be not less than eight hundred and fifty yards long, with a T at the end one hun- dred feet in length and fifty feet broad. This wharf was never completed; its remains may be seen in a few piles at Oakland Point, on the north of the railroad mole.

The passage of the Ferry ordinance was the cause of the establishment of a ferry by the late Hon. James B. Larue, of Brooklyn, and which led to the famous suit of Minturn versus Larue, in which the following most interesting and valuable affidavits of Doctor Gibbons and A. Marier, which are here produced, were taken in evidence:

" EDWARD GIBBONS, being duly sworn, deposes and says that he is a resident of the city of Oakland, in the County of Alameda, State of California, and has resided in

501

OAKLAND TOWNSHIP-CITY OF OAKLAND.

Oakland since the year 1851; that he was residing in Oakland at the time of the pas- sage of the Act to incorporate the town of Oakland, to wit: on the 4th day of May, 1852, and had been residing there for several months previous to that date; that so far as he knows or is informed, there was no petition or request of the people of that place (which was then, and had been previously, known by the name of Contra Costa M

and never by the name of Oakland) to the Legislature for the incorporation of said town, nor was the subject of its incorporation previously discussed among the people, nor the intention to incorporate it known to them; that there has been no public meeting in regard to any intended incorporation of said town, and that the population of the place did not exceed seventy or eighty persons; that when the news reached the people of the incorporation of the town of Oakland by said Act of the Legisla- ture, it was received by them with great surprise; that it was afterwards ascertained, as deponent was informed and believes, that the town had been so incorporated at the instigation and through the agency of Horace W. Carpentier.

" That a few days after the passage of said Act of Incorporation, to wit: on the roth day of May, 1852, an election for Trustees and other Town officers was held, and the following persons were elected Trustees, viz .: Amédée Marier, A. W. Burrell, A. Moon, E. Adams, and the said Horace W. Carpentier; that a day or two before the said election, the said Carpentier showed to deponent a ticket containing the names of persons to be voted for at the election, on which were the names of the five Trus- tees above named and who were afterwards elected; that at the time the said Horace W. Carpentier, A. Moon, and E. Adams were partners, and as such dealing in town lots, and deponent advised the said Carpentier to strike off from the ticket the name of A. Moon or E. Adams, for the reason that it was not right that three partners should be on the Board of Trustees, but he refused to do so, and the three were elected; that the said Horace W. Carpentier never qualified or took his seat as a member of the Board of Trustees, and no election was ordered or held to fill the place to which he had been elected, but until the next annual election the four remaining Trustees composed the Board.

" And deponent says that afterwards, to wit: about the 18th day of May, 1852, he, deponent, heard of the passage, by stid Board of Trustees, of an ordinance giving the water front of the town to the said Carpentier, and immediately went to said Carpentier and inquired of him the nature of it; that said Carpentier in reply said that it was to secure the water front to the town; that there was some talk of a called session of the Legislature, and if there should be a called session of the Legislature the Act incorporating the town of Oakland would be repealed, and he did not want to see the town deprived of so munificent an endowment; moreover, that it would enable settlers to make better terms with the Spanish claimants, in case the Spanish grant were confirmed; that he would rather deponent would take it, or any other responsible person, than hold it himself; that it was a mere conveyance in trust for the safe-keeping of the property, and that he would give bonds, if necessary, to restore it to the town; and added, that there was no necessity for the people knowing anything about the transaction; that the said Carpentier requested deponent to call upon the said Marier, who was President of the Board, and say to him that he (Carpentier) would give bonds to restore the property to the town, and to repeat to the said Marier

502

HISTORY OF ALAMEDA COUNTY, CALIFORNIA.

what he (Carpentier) had told this deponent, which request deponent complied with.

" Deponent further says that on the night of the same day, to wit, the 18th day of May, and after the conversation had as aforesaid, deponent was present at a meet- ing of the Board of Trustees, the said Carpentier was present, and stated publicly to the Board in the hearing of all present, that as some dissatisfaction had been expressed in relation to that ordinance, he would alter it to a term of years, or to a limited time, or words to that effect; that the words ' thirty-seven years,' or the words 'for the period of thirty-seven years' were then inserted by the said Carpentier (the ordinance having been reconsidered) as deponent supposed, and from the declarations of said Carpen- tier, so as to limit the estate or interest in the water front of the town to be vested in said Carpentier, to the period of thirty-seven years, or such shorter period as the authorities of the town might at any time thereafter determine, and it was not until after the lapse of six or eight months that deponent discovered that the said words had been so inserted as only to apply to the right to collect wharfage and dockage, and not to the grant of the water front; that the said ordinance appeared to be in the handwriting of said Carpentier, who, in the presence of the Board, himself inserted the said words. The amendment was adopted and the ordinance passed, and depo- nent says that the ordinance now on file amongst the papers in the office of the Clerk of the city is not the same paper which was then before the Board; that other amend- ments beside the one mentioned as aforesaid were made by the Board, as the journal of the Board will show; that any such amendments as the one suggested aforesaid by the said Carpentier, were either proposed to or adopted by the Board, nor does said journal contain any notice whatever of the same; that the ordinance now on file in the office of the Clerk of the city appears to be in the handwriting of the said Car- pentier; that it contains no interlineations or erasures, and cannot therefore be the ordinance that was passed by the Board at the said meeting; that only three members of the Board were present at that meeting, viz .: A. Marier, A. Moon, and E. Adams; that the journal of the proceedings of that and other meetings of the Board appear to be in the handwriting of the said Horace W. Carpentier.

" And deponent says further that afterwards, to wit: in the summer and fall of the year 1852, that Carpentier stated to deponent in the course of conversation, that he, Carpentier, had promised to give to Gen. James M. Estill a portion of the water front, and that he had been obliged to do so in order to get the bill incorporating the town of Oakland through (the said Estill being at the time of the passage of said Act a member of the State Senate), and afterwards, in the winter of 1852 and 1853, the said Carpentier again stated to deponent that he, Carpentier, was under bonds to the said Estill to convey to him the one-fourth of said water front, and that in the spring of 1853 the said Estill told deponent that he held the said Carpentier so bound as aforesaid, adding that it was in consideration of using his (Estill's) influence with the Governor to induce him to approve the bill incorporating the town of Oakland; that at or about the same time some conversation occurred between the said Carpen- tier and Estill, in the presence of deponent, in relation to the value of said one-fourth of the water front; that this last statement of the said Carpentier, and the conversa- tion between the latter and said Estill, occurred in consequence of an application made by deponent to said Carpentier, to purchase from him that part of the water front opposite deponent's premises.

503

OAKLAND TOWNSHIP-CITY OF OAKLAND.

" And deponent further says that the said Board of Trustees also passed an ordinance entitled 'An Ordinance to approve the Wharf at the foot of Main Street, and to extend the Time for constructing the other Wharves,' which ordinance appears to be in the handwriting of the said Carpentier, and that on the 5th day of March, 1853, according to the minutes of said Board, the said Adams introduced an ordinance entitled 'An Ordinance to create a Public Ferry between the Town of Oakland and the City of San Francisco, and to Provide for keeping up and running the same,' which ordinance according to said minutes was passed; and said minutes show, that the only members of the Board who were then present, were the said Adams, Burrell, and Moon; and no previous notice appears on the journal of said Board, of the introduction of said ordinance, nor does it appear that any petition was before the Board for the passage of the same, nor did the nature of said ordinance or its passage become generally known, as deponent 'believes, until several weeks thereafter.

"And deponent says further, that from the circumstances attending the passage of the Act incorporating the town of Oakland, the secrecy practiced, the agency through which it was effected, the manner in which the Board of Trustees was elected -two of its members being partners of said Carpentier-the failure of the said Carpentier to qualify or take his seat as a member, although elected by his own choice, the action of the Board in the passage of the ordinance giving to said Carpentier the exclusive privilege of erecting wharves and collecting wharfage, and granting him the water front of the town; the circumstances attending the amendment of that ordi- nance, and the other facts herein stated, he, deponent, became convinced and verily believes that the incorporation of said town and all that was done by the Board of Trustees in the premises was the contrivance of the said Carpentier, fraudulently to get into his hands a valuable property and valuable right's, and convert to his own use what had been intended and should have been used for the public benefit, and deponent says that such has been the general conviction and belief of the people of Oakland, and that all subsequent actings and doings of the said Carpentier and his confederates have tended to strengthen that conviction and belief.

" And deponent says further, that when the facts above stated became generally known, and it was ascertained that under the ordinance first above referred to, and a contract made in pursuance thereof, the said Carpentier claimed for his own use the exclusive privilege of constructing wharves and collecting wharfage, and to hold an absolute grant of the water front of the town, and that the said Board of Trustees, had conveyed to E. R. Carpentier (who was generally believed claimed a one-fourth undivided interest in said water front) exclusive ferry privileges under the ordinance passed as aforesaid on the 5th day of March, 1853, it excited great public indignation, and with a view to check the fraudulent practices of said Carpentier and his partners and creatures in said Board of Trustees, and to assert the rights of the town, the people attempted at the second municipal election which took place (to the best of deponent's recollection) on the 9th day of May, 1853, to elect a Board of Trustees composed of men in whom they had confidence, but the appointment of Judges and Inspector of the election being in the hands of the former Board, and the Board hav- ing the power to determine upon the election and qualifications of its own members,

504

HISTORY OF ALAMEDA COUNTY, CALIFORNIA.

it was declared by the Board that the following persons. were elected, viz .: Alpheus Staples, A. W. Burrell, A. Moon, E. Adams, and A. Marier, the last four of whom were members of the former Board; that at said election, when the tickets were consulted, it appeared that only some forty odd votes had been cast for the candidates who were declared to have been defeated while about seventy or eighty had been cast for those declared elected, but in the course of thirty-six or forty-eight hours after the election, not less than seventy voters made their affidavits that they had voted for the former. And the deponent says that the returns of said election together with the tally-list are not on file in the office of the Clerk of the city, nor from the best information he can obtain, does not believe that the same were ever handed over to the authorities which succeeded to the town of Oakland.

" And deponent further says, that A. Marier, one of the Trustees declared elected, and whose name had been on both tickets, and who for some time had refused to attend the meetings of the Board, did not qualify or take his seat as one of the Trustees, and the four remaining members composed the Board during the year; that said Board so elected and so constituted, did, as appears by the minutes of the pro- ceedings of said Board, on the 27th of August, 1853, pass an ordinance entitled ‘ An Ordinance concerning Wharves and the Water Front;' and that said Board also passed an ordinance on the 29th of October, 1853, entitled ‘ An Ordinance concern- ing Wharves'-That the passage of said ordinances as deponent believes, and has been informed, was not publicly known for several weeks or months thereafter.

" And deponent further says, that the journal of the said Board of Trustees shows that the said A. Marier did not attend any of the meetings of said Board held after the 3d of March, 1853, and that from that date to the 16th of May, 1853, the business of said Board was conducted by the said A. W. Burrell, A. Moon, and E. Adams, that the journal of the proceedings of the aforesaid second Board of Trustees shows that only four members qualified and took their seats, viz .: A. W. Burrell, A. Moon, E. Adams, and Alpheus Staples, and that nowhere does it appear that five members organized, constituted, or were present at any meeting or meetings of any Board of Trustees that ever existed in the town of Oakland.

"And deponent further says, that to the best of his knowledge and belief, the city of Oakland has never recognized the claims of the said Horace W. Carpentier and E. R. Carpentier under the grants aforesaid, as being valid, but on the contrary have passed sundry ordinances and resolutions asserting the rights of the city in the premises; certified copies of which ordinances and proceedings accompany this deposition, and the others being 'An Ordinance concerning Ferries' approved June 5, 1855; 'An Ordinance Repealing an Ordinance, entitled An Ordinance to create a Public Ferry between the Town of Oakland and the City of San Francisco, and to Provide for keeping up and running the same;' passed June 15, 1855; 'An Ordinance con- cerning Ferries,' approved May 19, 1855; an Ordinance passed on the 13th of September, 1855, under which a contract was made with Rodman Gibbons for the construction of a wharf; 'An Ordinance to extend the time for completing the wharf on Bay Street.'

"And deponent says that under authority of the Council of the city of Oakland an action was brought in the District Court of the Third Judicial District, for the

IMissup

505

OAKLAND TOWNSHIP-CITY OF OAKLAND.

county of Alameda, in the name of said city and against Horace W. Carpentier and Harriet N. Carpentier to set aside and have declared void the ordinances and deeds under which said Carpentier claimed the said water front and said exclusive privilege of erecting wharves and collecting wharfage, and for the delivery to the plaintiff of the wharf and property claimed under said ordinances and deeds, and that said action is now pending in the Supreme Court of this State.

"And deponent says, that he is the Treasurer of the city of Oakland and ex officio Clerk of the city, and has the custody of the journals of said Boards of Trustees of the town of Oakland and Council of the city of Oakland, and of the original ordinances and papers of said bodies.

"(Signed) "Sworn to before me this 28th day of May, A. D. 1858. "(Signed) T. J. THIBAULT, Notary Public."

E. GIBBONS.

" AMÉDÉE MARIER, being duly sworn, deposes and says, that he is a resident of the city of Oakland, in the county of Alameda, and has resided in said city, formerly town of Oakland, since April, 1851; that at the first election of Trustees for said town, held on the ioth day of May, 1852, he was elected a member of the Board of Trustees, and at the third meeting of said Trustees he was chosen President of the Board; that he was present at the meeting of the Board, at which was passed the 'Ordinance for the Disposal of the Water Front of the Town of Oakland, and to Provide for the construction of Wharves;' that said ordinance was introduced on the 17th of May, 1852, and was finally passed on the 18th of May; that the ordinance as presented was in the handwriting of Horace W. Carpentier; that on the 17th of May, 1852, before the meeting of the Board, said Carpentier exhibited the proposed ordi- nance to the deponent, and wished deponent to vote for it; that deponent refused to do so, whereupon said Carpentier stated to deponent that the object of having the ordinance passed was to secure the water front to the town of Oakland, and to enable the settlers to compromise with the claimants to the land on which the town of Oak- land was situated; that there was some talk of a called session of the Legislature, and if there was a called session, the Act of Incorporation would be repealed; and upon this subject he made to deponent various representations to induce him to support said ordinance, all which tended to show that the ordinance would benefit and could not injure the people of the town; that deponent did not then read the ordinance, but said Carpentier stated its contents to be that it was a grant to himself of the water front, and the exclusive privilege of constructing wharves at Oakland; but he said that he did not care to have the grant to himself; that he would rather that some other person should take it than himself; that he would hold it in trust for the town, and reconvey it to the town whenever requested; that deponent, relying upon these representations and promises, consented to support the ordinance, and at the meeting of the Board did vote for it; that before its final passage there were some amend- ments made to it by striking out the word 'forever,' and inserting the words 'for the period of thirty-seven years,' which alterations, as deponent then supposed and still believes, applied to the grant of the water front as well as to the privilege of con- structing wharves; that deponent afterwards signed the ordinance, now on file, under

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History of Alameda County, California : including its geology, topography, soil, and productions, Part 70

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