History of Alameda County, California : including its geology, topography, soil, and productions, Part 71

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 71

Note: The text from this book was generated using artificial intelligence so there may be some errors. The full pages can be found on Archive.org (link on the Part 1 page).

HISTORY OF ALAMEDA COUNTY, CALIFORNIA.

the same impression, believing that it was a true copy of the ordinance and amend- ments as passed, and did not know until some time afterwards that it was incorreet in not limiting the grant of the water front to the period of thirty-seven years.

" And deponent says that some time afterwards, as President of the Board of Trustees, he signed the grant or contraet, dated May 31, 1852, made in pursuance of said ordinanee; that said contraet had been previously drawn up by said Carpentier, and was laid with other papers on the table in the room where the Board met, where it remained for some days, but deponent was reluctant to sign it, and was determined not to do so until said Carpentier should give bonds according to his promise, to reconvey the property whenever requested; that at length the said contract was pre- sented to deponent by said Carpentier in person, on board the ferry-steamer Erastus Corning, at the wharf in the city of San Francisco, and deponent was requested by said Carpentier then to sign it; that said Carpentier represented that he wanted it immediately for some important purposes, deponent thinks to submit it to the Land Commissioners, and that it was very important that it should be executed at onee; that deponent asked said Carpentier where was the bond that he was to give to reconvey, to which said Carpentier replied that he had not time to give it then, but would give it as soon as he came over to Oakland, and thereupon, relying upon the representations and promises of said Carpentier, deponent signed said contraet.

"And deponent says, that at that time he knew very little of the nature and effects of deeds and grants, or of the forms and modes of doing business in munici- pal bodies, and had unlimited confidence in said Carpentier, who used to act as Clerk and draw up papers for the Board of Trustees and its members, and advise and counsel them in all matters connected with municipal matters, no member of the Board being able, unassisted, to draw up an ordinanee.

" And deponent says that prior to the passage of the Act of the Legislature incorporating the town of Oakland, the name of the place was Contra Costra, and it had never been called Oakland so far as deponent knew; that no proposition had ever been made amongst the residents of the place to change its name or to have it incor- porated, nor had there ever been any discussion upon these matters, nor any wish expressed for the incorporation of the town; that at the time of the passage of the Act there were only about seventy-five persons residing at the place; that when it became known amongst them, through the newspapers, that a town called Oakland, in Contra Costa County, had been incorporated, the people did not know that it was the town where they lived, and it was a subject of discussion amongst them where the town of Oakland was.

"(Signed)

A. MARIER.

"Sworn and subscribed before me this 28th day of May, 1858.

“ (Signed)

FRED'K A. SAWYER, Notary Public."

It is unnecessary for us to dilate upon these two documents; they breathe the air of truth; better, therefore, is it to leave them in the hands of the contemplative reader, while we return to the official acts of the City Fathers.

At the meeting of August 8, 1855, Alderman Gibbons introduced an ordinance having reference to wharfage and dockage, prescribing and regulating the amount thereof; that, after passing its second reading, was referred to the Committee on

507

OAKLAND TOWNSHIP-CITY OF OAKLAND.

Streets and Wharves. The intention of this enactment was a material reduction of the rates then in force, and being favorably reported upon by the committee, was, on the 15th August, read a third time, and unanimously adopted on the motion of Alderman Worthington. At this same session a resolution was passed refusing to recognize E. R. Carpentier, who had been appointed counsel for the town during the régime of his brother, as attorney for the city in the suit of S. J. Clark against the city, and forbidding him to act as counsel in her behalf in any action, matter, or pro- ceeding. On September 12th Aldermen Williams, Johnson, and Harwood were appointed a committee to draw up a contract with Rodman Gibbons for the building of the wharf at Bay Street, there being subsequently another ordinance passed con- firming the contract to him, while on January 17, 1856, he was granted an extension of time to August, 1856, for its completion.

The election for the third Council of the city of Oakland resulted in the choice of S. H. Robinson às Mayor, and although his seat was contested by Mr. Campbell, his immediate predecessor, resulted in the confirmation of the former gentleman. It is thought by some that the reason of Mr. Campbell's defeat is to be found in the implacable detestation he had for the water-front scheme and all that belonged to it, while it is hinted that many illegal votes were cast for Mr. Robinson. However, in the ranks of the new Council, Carpentier had several opponents to his claim, and they soon opened fire upon the enemy. Their first move was a petition to the State Leg- islature, praying for a confirmation to Rodman Gibbons of the contract to build the Bay-street Wharf.

In obedience to the provisions of the charter, the newly elected Mayor now dis- patched his first message to the City Council, in which he called their attention to the urgent necessity that existed for removing the bar at the mouth of the San Antonio Creek, and also to the manner in which the ferry between Oakland and San Francisco was being conducted. In regard to the latter, we quote his own words: "That the present ferry between this city and San Francisco is not what it ought to be, and is conducted in almost total disregard of the public wants and interests is a fact notori- ous to all. What steps, if any, ought to be taken by you with a view to an improve- ment, I am not at present prepared definitely to recommend; but I commend to you the whole subject-matter as one eminently worthy your careful consideration."

Water-front matters were comparatively tranquil during the tenure of the third Council, the only action worthy of notice being the granting of further time, to May, 1857, to Rodman Gibbons for the completion of the Bay street wharf, on which work had been commenced, however, without let or hinderance on the part of the water- front claimants. It is just possible that even at that early date they recognized the feebleness of the reed on which they leant.

On March 4, 1857, Andrew Williams was elected Mayor, and among the Coun- cilmen we once more have the name of Mr. Marier. In his message we find Mayor Williams referring to the vexed ferry question, while he strenuously urged upon the minds of the Council the fact that there existed no ferry monopoly; that they had under their sole control the matter of wharfage and dockage privileges, and were free and independent from the water-front ownership. In regard to the water front he remarked: "The question of the city's title to its water front is of such paramount

508

HISTORY OF ALAMEDA COUNTY, CALIFORNIA.

interest that I propose to make it the subject of a special communication to your Honorable Body at an early day. The great extent of the water front, bounding the city on three sides and part of the fourth, for a distance of eight or ten miles, and its future incalculable value, entitled it to your special and prompt attention. There have been put forth some claims of individuals to this large patrimony which we believe to be without foundation, and there is also a question as to its ownership by the pro- prietors of the Mexican grant of the adjacent shore. To obviate any pretense of the individual claims against the city first above named acquiring any plausibility by five years' adverse possession, I recommend the immediate commencement of a suit at law to quiet the title to this large and valuable property. It is believed an amicable arrangement can be made with the proprietors of the Spanish grant to save the city harmless from expense in case of the eventual confirmation of their title to this immense domain. The great importance of this subject is my apology for reiter- ating my earnest recommendation of this subject to you for your immediate action."

Acting upon the advice of the Mayor, at the meeting held April 1, 1857, Alder- man Davis offered the following resolution :-

Resolved, That the Judiciary Committee be, and they are hereby authorized and directed to confer with competent counsel upon the subject of the title to the water front of the city, and also to confer with the claimants thereto under the Spanish grant and ascertain and report to this Council what arrangements can be made, and what steps may be necessary and expedient to take for settling the claim of the city thereto,

Which, on motion of Alderman Marier, was adopted. On the 15th April they reported progress, and on May 13th the Judiciary Committee last mentioned in the matter (the water front) presented the following communication from Joseph Z. Bald- win and Henry P. Irving, attorneys :--

"Having been requested by Mr. Marier to state in writing the terms on which we would act as Counsel of the city of Oakland in a suit proposed to be instituted by the city for the purpose of setting aside a conveyance purporting to have been made by the town of Oakland to Horace W. Carpentier, we agree to render our professional services for that purpose on these terms: Two hundred dollars to be paid to each of us in cash, or as soon as convenient, and seven hundred and fifty to be paid to each in case of success in the judgment. The services to be rendered not only in the District Court, but, in case of an appeal, in the Supreme Court of California."

The committee also reported an agreement upon the part of certain claimants to the marsh-lands within the limits of the city, to bear their proportion of the expenses attending a suit for the recovery of the water front, which agreement they would present in writing at a subsequent meeting. This report was accepted in due form, and the annexed resolution adopted :-

Resolved, That the proposal of H. P. Irving and Joseph Baldwin be hereby accepted, and that they be instructed to commence suit immediately for the recovery of the water front.

Nothing more of interest in regard to water-front matters occurred during the year 1857, save that W. M. La Roche was granted until May, 1858, to complete the wharf at Bay Street.

In March, 1858, Mayor Williams was re-elected to the civic chair, and on May 19, 1858, an ordinance was passed granting permission to the San Antonio Steam

509

OAKLAND TOWNSHIP-CITY OF OAKLAND.

Navigation Company to run a ferry between the cities of Oakland and San Francisco, the passenger rates of which were not to exceed twenty-five cents for each passenger. The president of this company was the late James B. Larue, and he was licensed to run the ferry-boat San Antonio between the cities above named. The ordinance pro- vided also that nothing in it should be so construed as to prohibit any other com- pany or individual from running boats between Oakland and any other place.

During 1859 and until the election of the seventh Council in March 1860, no mention is made of water-front matters. In his message of March 28, 1860, however, Mayor J. P. M. Davis refers to the subject in these terms: "Prior to the organiza- tion of the city government, Oakland had fallen a prey to the passions of designing men, who, in an avaricious desire to accumulate wealth, regardless of the means by which it was to be obtained, seemed to set at defiance all rights of property, public and private. The results of this were oftentimes manifested in scenes of lawlessness and disorder on the one hand and a reckless regulation and control of municipal affairs on the other. The consequences were that when the city was organized under the charter of 1854 she was found despoiled of all the marsh-lands which had been donated to the town by the Legislature of the State, and burdened with an enormous debt, incurred by most reckless means. For the recovery of the land a suit has been instituted by the city which is now pending in the Supreme Court of the State."

On April 11, 1860, Alderman Cole offered the following resolution, which, on his motion, was read and adopted, a's follows :-

" Resolved, That Messrs. Irving & Thompson, Attorneys for the city in the case of the City of Oakland versus H. W. Carpentier et al., be and they are hereby requested to take such steps as they may deem necessary to obtain from the proper Court the appointment of a Receiver of the rents and revenues of the property involved in said suits."

In reply to which the Council received a communication from Irving & Thomp- son, informing them that the remittitur in the case of City of Oakland versus H. W. Carpentier et al. had been sent down and that the costs were due thereon. These were ordered paid on May 9th.

In the mean time Mr. Carpentier attempted to steal a march upon his antago- nists in the hope that he might be enabled to keep the water-front property. To this end he obtained the passage of an Act through the Legislature, entitled "An Act to amend an Act entitled an Act to Incorporate the City of Oakland,'" confirming all the ordinances passed by the town of Oakland. Of this proceeding the Council and the citizens of Oakland were supremely ignorant. Suddenly the startling intelli- gence burst upon them as they read the twelfth section of the Act, which is as fol- lows: "The Corporation created by this Act shall succeed to all the legal and equita- ble rights, clauses, and privileges, and be subject to all the legal or equitable liabilities and obligations of the town of Oakland; and the ordinances of the Board of Trustees of said town are hereby ratified and confirmed, and the Common Council shall have power to maintain suits in the proper Courts to recover any right or interest, or property which may have accrued to the town of Oakland." When the news reached the city officials of the passage of the Act it seemed as if a shell had burst in their ranks. A meeting was immediately convened, and on July 24, 1861, the following resolution was passed and ordered published three times in the Alta California and the Alameda Gazette :-

510

HISTORY OF ALAMEDA COUNTY, CALIFORNIA.

WHEREAS, At the late session of the Legislature of the State of California, a bill was introduced by F. F. Fargo, at the instigation, as we believe, of H. W. Carpentier, entitled "An Act to amend an Act entitled, ' An Act to Incorporate the City of Oakland, passed March 25, 1854,'" and

WHEREAS, The said Act so passed, ratified and confirmed all the ordinances passed by the Board of Trustees of .the town of Oakland, thereby designing to confirm to said Carpentier the entire water front of the city of Oakland, exclusive ferry privileges, and other grants and franchises unlawfully made by the Trustees of the said town, therefore

Resolved, That said Act of Confirmation was introduced and passed without the knowledge, consent, or approval, or application of the city of Oakland, or of any officer or agent of the same, and will be resisted by all legal means that the city can command.

These machinations of Carpentier, however, were soon to be thwarted. Recog- nizing the manifest impolicy of such a movement, the Legislature, at its next session, repealed the obnoxious Act, and there the subject rested for some time.

At the election held in March, 1863, William H. Bovee was elected Mayor, and in the Council were Messrs. O. L. Shafter, James de Fremery, and W. W. Crane, Jr. In their reign the water-front question assumed a new phase, as will be gathered from the following resolution, introduced by Alderman de Fremery and passed on motion of Alderman Woolsey :-

WHEREAS, The City Council of Oakland did, on the 14th day of January, A. D. 1861, pass an ordinance granting the right of way to the San Francisco and Oakland Railroad Company to construct their road through the city of Oakland, and, as a further inducement for the construction of their roal, granted to said company the use of a portion of the overflowed lands situated at the western terminus of said road; and

WHEREAS, Said City Council did, on the 21st day of Jannary, 1863, prepare a hill and forward the same to the Alameda delegation in the Legislature, ratifying and confirming said ordinance and the deed executed in pur- suance thereof, which bill is now pending in the Senate; and

WHEREAS, Opposition to the passage of said bill has been made by parties claiming all the overflowed lands within the limits of the city, and whose aim is to defeat the construction of said roa l or of any other similar enter- prise, and thereby securing a monopoly of the transportation of passengers and freight to and from the city, under an ordinance improperly obtained from, and, as we believe, illegally passed by, the Board of Trustees of the town of Oakland, in the year IS52; therefore, be it

Resolved, That the City Council of Oakland regard the construction of said road as of such vital importance to the interests of this community and of the people of Alameda County, that the city of Oakland can well afford to grant the use of said lands to said company as an inducement for its construction, and we respectfully represent to the Honorable Legislature that the passage of said bill will destroy rather than establish a monopoly and give almost universal satisfaction to the people of this city and county.

A copy of this resolution was sent to the Honorable A. M. Crane, Member for Alameda County. On April 21, 1863, Eugene Casserly was retained to represent the city of Oakland, and arrangements made with him to draw up a brief and conduct the case of the City versus Carpentier at the time pending, on appeal, in the Supreme Court. The city was ultimately defeated. Carpentier was defeated on all material points, but on legal technicalities he prevented any final judgment of ejection from being recorded against him. The case had been commencel in the Third District Court in Oakland, and, on application for a change of venue, was transferred to the Fourth District Court in San Francisco. A demurrer had been entered by Carpen- tier, and was tried before Judge Campbell. When the case was appealed, Judge Baldwin of the Supreme Court gave judgment against the city. The demurrer was on the question of the power of the town of Oakland to grant an exclusive right or franchise of the water front to any one person. The city failed to set up in its com- plaint the deed and the ordinance, as they should have been, therefore the demurrer

511

OAKLAND TOWNSHIP-CITY OF OAKLAND.

was not proceeded upon as to the power of the Trustees to convey in fee the water front.

The city set up an action for fraud when it was an equitable action, and on the first hearing of the demurrer, Judge Baldwin held that the grant of the exclusive right of the franchise by the Town Trustees was absolutely void. But he could not reach the power of the question of the water front, by reason of the defective plead- ings. There was a rehearing granted in the Supreme Court, and the case was sent back to the Court below, with the suggestion that the complaint be amended on the part of the city. But the city refused to amend. The result was, although on trial in the District Court, a judgment was given for the city. When it went again to the Supreme Court the judgment was reversed in favor of Carpentier.

We now append the decisions of the Supreme Court:

"CITY OF OAKLAND

US. Appeal from Third District Court.

"CARPENTIER.

" Thompson, Irving & Pete, for appellant;

" Justice Baldwin delivered the opinion of the Court, Chief Justice Terry con- curring.

"This is a bill in equity filed by a municipal corporation to set aside a contract or lease made of certain franchises and real estate. The bill charges that the city of Oakland is the legal successor of the town of Oakland by Act of the Legislature passed March 25, 1854; that the town of Oakland was incorporated by law on the 4th of May, 1852, and, by the same Act, was vested with a title to certain lands compris- ing the water front within the corporate limits; also, with certain privileges touching the erection of wharves, docks, etc .; that by the Act incorporating the town of Oak- land, the corporate and municipal powers were lodged in a Board of Trustees to con- sist of five members, whose election was given to the qualified voters of the town, the election fixed on the second Monday in May in each year, and the term of office one year, and until their successors were qualified; that an election for Trustees occurred in pursuance of the Act, but only four of them qualified as Trustees; and, at a meeting of the four persons so elected and qualified, a resolution, purporting to be an ordi- nance, was passed, whereby the Trustees pretended to convey to one Horace W. Car- pentier and his representatives the exclusive right and privilege of constructing wharves, piers, and docks at any point within the corporate limits of the town of Oakland, with the right of collecting wharfage and dockage as he might deem reason- able, upon certain conditions expressed in the ordinance; that by this pretended ordi- nance, and for the considerations therein set forth, a pretended grant was made to the said Carpentier and his assigns or legal representatives, with all the improvements, rights, and interests belonging to said town, in and to the lands lying within the limits of the town of Oakland; that Carpentier afterwards, by fraud, procured certain men to be elected again as the Board, who ratified this contract; that the first ordi- nance was fraudulent, Carpentier having procured himself to be elected Trustee for the purpose of getting it and having his agents on the Board of Trustees. Various other charges of fraud are made, some of which will be noticed in the course of the opinion.

" The defendants filed a demurrer to the bill. The ground is that it does not

512

HISTORY OF ALAMEDA COUNTY, CALIFORNIA.

state facts sufficient to show a cause of action, and that the claim of the plaintiff, as stated, is barred by the statute of limitations. Final judgment was rendered on the demurrer in favor of the defendants, the plaintiff declining to amend his bill.

" Several important questions are raised by the record.

"I. Had the Trustees of the town of Oakland power to grant to Carpentier the exclusive right and privilege of constructing wharves, piers, and docks at any point within the corporate limits of the town, with the right of collecting wharfage and dockage, at such rates as he might deem reasonable, for the period of thirty-seven years?

"The charter of the town of Oakland is to be found in the Acts of 1852, page 180. By section third of that Act it is provided: 'The Board of Trustees shall have power to make such by-laws and ordinances as they may deem proper and neces- sary: to regulate, improve, sell, or otherwise dispose of the common property; to pre- vent and extinguish fires; to lay out, make, open, widen, regulate, and keep in repair all streets, roads, bridges, ferries, public places and grounds, wharves, docks, piers, slips, sewers, wells, and alleys, and to authorize the construction of the same, and, with a view to facilitate the wharves and other improvements, the lands lying within the limits aforesaid, between high tide and ship channel, are hereby granted and released to said town; provided that said lands shall be retained by said town as com- mon property, or disposed of for the purposes aforesaid; to regulate and collect wharf- age and dockage; to secure the health, cleanliness, ornament, peace, and good order of said town; to organize and support common schools; to license and suppress dram- shops, horse-racing gambling-houses, and houses of ill-fame, and all indecent or immoral practices, shows and amusements; to regulate the location of slaughter- houses, stables, and places for the storage of gunpowder; and to pass such other laws and ordinances as, in their opinion, the order, good government, and general welfare of the town may require.'

"The rules in relation to the construction of charters of corporations are familiar. They are special grants of power, emanating from the paramount authority. The corporation owing its existence to the law, is precisely what the law makes it. It has no powers except those expressly given, or which are necessary to the exercise of those expressly given. The general legislative power residing in the State Government may delegate to a municipal government some portion of its own powers; but those grants are held in subordination to the general power, and are not construed as taking from that Government any other powers or rights than those clearly granted. These dele- gated powers, given for local objects, are regarded as trusts confided to the hands in which they are placed, and are not subject to be delegated by the repositories of them. To this Board of Trustees, as has been seen, was given power to 'lay out, make, open, widen, and regulate, and keep in repair all streets, roads, bridges, ferries, public places and grounds, wharves, docks, piers, slips, sewers, and alleys, and to authorize the con- struction of the same.' Under these general terms it is claimed that this Board had a right to authorize Carpentier to enjoy the exclusive privilege of laying out, estab- lishing, and constructing wharves within the city at pleasure, and fix the charges, for a period of thirty-seven years. It is not difficult to see that such a construction is not warranted by the provisions of this Act. The charge in the bill is not that Carpentier

Need help finding more records? Try our genealogical records directory which has more than 1 million sources to help you more easily locate the available records.

History of Alameda County, California : including its geology, topography, soil, and productions, Part 71

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