History of Alameda County, California : including its geology, topography, soil, and productions, Part 72

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 72

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Calvin Valpez

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OAKLAND TOWNSHIP-CITY OF OAKLAND.

agreed, or was allowed, to construct a wharf, or any number of wharves; that by con- tract he was authorized and bound himself, on certain terms and conditions, to do this; but that to him, in exclusion of the right of everybody else, and of the corporation itself, was imparted the sole privilege, not only of constructing all wharves, but of lay- ing out, establishing, and regulating them too. This amounts, not to the grant of a license or privilege to erect a wharf, or all the wharves, laid out or ordered by the Council, but the grant of an exclusive right to lay out and construct them at his own convenience, in his own way, and to hold and use them on his own terms; and if he did not choose to exercise this privilege, the corporation is prevented from giving the privilege to any one else; and so of docks, piers, and the like. If, by a sweeping ordi- nance of this sort, an exclusive and comprehensive privilege like this could be given to Carpentier, it is hard to see why the opening, repairing, and regulating of streets and roads should not be given to him exclusively, as a privilege with the right to charge and collect what tolls or charges for using them he might please, since, as has been seen, the very same words apply to these public easements as to docks, and piers, and wharves. We do not regard this ordinance as an exercise of a power under the charter, but as a transfer of the corporate powers intrusted to this Board, to this favored grantee. What power of regulation is left, after an unconditional grant of the exclusive privilege of all the wharves, and docks, and piers, and a lease for thirty- seven years of all the lands, and a right to fix such tolls as the grantees please, and this without any obligation to build or construct any, it is not easy to see. If the grant had been to the city of San Francisco, in the same words, and the city authori- ities had granted the exclusive privilege to one man to construct all the wharves along the line of the bay, and fix his own toll, we suppose no one would question that the grant exceeded the powers of the agents of the corporation.

"The general power over the wharves and docks is like the general power over the streets and highways. The corporation must exercise the general powers which the term 'regulate' implies. This general power involves the determination of the questions whether a wharf shall be constructed, when, how, in what places, on what terms, how kept, and what charges shall be exacted for their use. These police regulations are essential to the interest of the city, its commerce, its health possibly, certainly its convenience and general prosperity. It might, as we have intimated, just as well be said that the Board could by ordinance delegate to Carpentier the power of opening all streets and alleys anywhere in the town, where he chose, or widening them where he chose; to run an alley through any one's lot, or to make a sewer near any man's door, at his pleasure; but it would be rather a startling proposition to say that he would hold-through an ordinance-the exclusive privilege to do all these things, and charge for them what he chose, and that no one else-nor the town itself- had any right to do any of them. And the same reason precisely which denies the power to make this grant, applies to the grant of the exclusive privilege of construct- ing all the wharves he may choose, he determining, of course, where these wharves shall be, the number, the dimensions, the kind, the toll, and every matter concerning them-comprehended with the term 'regulation.' The reason is that this power of regulation is a political power, and therefore the transfer of it is the transfer of a power of municipal legislation; which authority is not, in its nature, alienable. It is

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HISTORY OF ALAMEDA COUNTY, CALIFORNIA.

not the transfer of so much property; it is the transfer of a power to create, and con- trol, and regulate, a certain species of franchise, the creation, control, and regulation of which are powers of the political department. It is no answer to say that after a wharf is constructed by the authority of the corporation, it might be sold as property: the reply to this is, that the establishment of it is of the promise of the corporation; and that it can no more give a general privilege to one man to establish wharves, when, where, and as he chose, within the limits of the city-the privilege being given for his own profit, use, and benefit.

" The principle upon which these general views rest, has been fully supported by the United States Circuit Court for the districts of California, in the case of Minturn vs. Larue* (I McAll. 370), involving the construction of this charter.

" The former is given the Board 'to regulate and collect wharfage and dockage;' but this power is not exercised, but ceded, by a grant allowing the grantee to regulate it as he pleases.

"It will not do to say that the lands lying between higli tide and ship channel are ceded to the city; this does not deprive the argument of its force, that the establish- ment of wharves, docks, etc., is one of its corporate powers, and that no wharf can be so constructed, unless each wharf be so laid out by the order, or with the leave of the corporation-which cannot be by the general session of a privilege to another to establish, when, where, and how he pleases. We understand the Supreme Court of Massachusetts, in Fay, Petitioner (15 Pick. 256), to intimate this doctrine, when it is said-speaking of the right of the city of Boston to grant a ferry-' Even if the city, by their authorized agents, had made a grant of a ferry or other franchise, claiming to be owners thereof, with express or implied covenants for an exclusive enjoyment of such franchise, this would not prohibit or restrain the Mayor or Aldermen from exer- cising the powers vested in them by statute, to license a ferry required by public con- venience and necessity. Such authority is vested in them as Trustees for the public, to be exercised for the public good, and cannot be restrained by the covenant of the city, though such covenant happens to be executed by the same agents.' But how much stronger would have been the statement of the venerable Judge C. J. Shaw, if in that case a general grant had been made of the exclusive privilege of establishing all the ferries on a river, or between the shores of Boston and Chelsea, with the right to select the places at which to exercise the privilege, or, if exercised, to charge what ferriage they chose. This would be, not to make the grantee a license of a ferry right, but the assignee of the privilege of making and unmaking ferry franchises at pleasure; indeed it would be transferring all the powers of government over the subject, to one individual.

"We see no distinction in this charter between a wharf or dock, in or upon a navigable stream, and a ferry right or bridge. They are all of the same class of interests, and the same powers over all of them are given in the same words.

" But if there was a difference, the charter giving the power of right and regula- tion to this corporation over the subject, it is held as a political power, and must be exercised by those to whom it is confided. The power to lay out and regulate wharves being given to the Council, cannot be exercised by Carpentier.

* This decision will be found in this chapter when treating the subject of ferries.

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OAKLAND TOWNSHIP-CITY OF OAKLAND.

" We think, then, that this general grant of this exclusive privilege is wholly void, as exceeding the powers of the corporation; and that the plaintiff, the successor of the old town, has a right to come into equity to remove this impediment, constituted by these proceedings, from the free and beneficial exercise of its corporate functions and property. The plaintiff stands here as a Trustee, administering important trusts, and charged with responsible duties to the public, which cannot be safely discharged so long as doubts hang upon its title to property, and to the exercise of its control over its franchises; and, like any other Trustee, has the right to seek the aid of equity to remove obstructions to the performance of its duties. It is difficult to see how else the plaintiff could vindicate its right. The claim of the defendants is in this case incorporeal. They assert that certain franchises have been ceded to them, and that the plaintiff has parted with them; the plaintiff, claiming only to hold these franchises and the administration of them in trust for the public, would be without any relief, if equity could not aid in removing this difficulty; for it could neither build wharves nor authorize others to build them, as long as its powers and rights were denied. Nor do we perceive what form of legal action would give an adequate remedy.

"This view disposes of the demurrer, for it is general-going to the whole bill; and if the bill contains in any part, a complete cause of action the general objection to it for want of equity, fails.

" What effect the invalidity of this has upon the grant of the land, the bill does not enable us to determine. Neither the ordinance nor the deed is set out as they should have been in the bill. It is charged in the complaint, it is true, that the land between high tide and ship channel, and this exclusive privilege, were conveyed in the same instrument; but in what relation the land stood to this privilege, or what were the particular considerations or inducements to the grant of the land, we are not dis- tinctly informed. If the land were conveyed merely or mainly to give effect to this illegal purpose, probably the incident would fall with its principal.

" The charter is, perhaps, the most defective upon the statute book, and this is saying a great deal. A perverse ingenuity seems to have been exercised to make it as lame and loose as possible. The joint labors of Malaprop and Partington could scarcely have made such a collocation or dislocation of words and sentences. Among other things, it gives the Board of Trustees power 'to license and suppress dram-shops, horse-racing, gambling-houses, and houses of ill-fame, and all indecent and immoral practices, shows, and amusements.' However general the words of this charter, the received rules of construction require us to construe them in reference to the substan- tive purposes expressed. The Act gives power 'to regulate, im prove, sell, or other- wise dispose of the common property; to prevent 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, mills and alleys, and to author- ize the construction of the same, and with a view to facilitate the construction of 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, the said lands shall be retained by said town as common property, or disposed of for the purposes aforesaid.' Now, looking into this jumble of incoherent and contradictory verbiage, the questions arise: To what 'other' improvements besides wharves, was it

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HISTORY OF ALAMEDA COUNTY, CALIFORNIA.

designed that this water front should be applied ? or, what are 'the purposes aforesaid' for which it might be disposed of, and how disposed of? It may well be doubted whether, under this charter, the Town Council, being bound to lay out and regulate these wharves, streets, and docks, an unconditional sale or lease of the land necessary to be ret ained, to accomplish and give effect to this power, could be made, especially if accompanied with this was a renunciation of all dominion or control over the land necessary for the site of these docks, streets, or wharves. But perhaps it is not nec- essary to decide these points now, as they can be presented more satisfactorily where the facts are better developed.

"2. It is contended by the appellant that this ordinance and deed are void, for the reason that the Board of Trustees were not legally organized; that though five were elected (Carpentier being one), all did not qualify; and that though a majority of the members of such a public body may act after the organization, it requires all the members to make the organization.

"Section second of the charter is in these words: 'The corporate powers and duties of said town shall be vested in a Board of Trustees, to consist of five members who shall be elected,' etc. Nothing is said in this Act further, as to the number required or mode of corporate action. In the first section, the town is declared to be incorporated under the provisions of the Act of 1850, to provide for the incorporation of towns. (C. L. 114.) The third section of this last Act provides that the Board of Trustees shall assemble within ten days after their election, etc., and, section fourth : ' At all meetings of the Board a majority of the Trustees shall constitute a quorum to do business.'

"We can see no reason for holding that a majority of the members elected to this Board should not as well be held empowered to act at the first as at any subse- quent meeting of it.

" 3. The next question is as to the alleged fraud in procuring this grant by Car-

pentier. Some astute and forcible criticism is employed by the counsel for the respondent upon the complaint. The facts are not as fully stated as is desirable in such cases. The complaint is defective in not averring fully the terms of the ordinance and the contract, and the particular injury resulting to the plaintiff from the alleged fraud; nor are the fraudulent practices of the defendent, Carpentier, in procuring the election of the first Board, or his procuring the election of the second, nor the circum- stances attending the ratification of the first contract, nor the promises or agreements made by him on or inducing the execution and delivery of the deed fully set out. But as the bill may be amended, on the return of the cause, in these particulars, and as the general questions have been discussed, we proceed to consider them.

" It is alleged that Carpentier procured men, who were his agents or conspirators with him, to be elected to this Board, for the purpose of getting them to defraud the town, for his benefit, of all this property and these franchises; and if he got himself elected to this place, in order to help the contrivance through, whether by his influ- ence, or by keeping out some one else who might have exposed the scheme, then this was sufficient to brand the whole transaction with illegality. Nay, more-if Carpen- tier put himself in the position of a member elect of this Board, neither resigning nor qualifying, and took advantage of this position to advance his personal interests, at

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OAKLAND TOWNSHIP-CITY OF OAKLAND.

the expense of those of the corporation, this was a fraud for which a Court of Equity would hold him responsible. He would occupy the position, really, of a Trustee deal- ing for his own profit with the subject of the trust, and his conduct would be scrutin- ized with the jealousy with which equity regards the interested dealings of an agent with the principal, in respect to the subject of the trust. Nor would a ratification by a subsequent Board, if the members were fraudulently elected, or procured to be elected, by Carpentier, have any effect in validating the transaction. Carpentier could not protect this fraud by the sanction of his own associates united in effect, together, an illegal enterprise.

" If these facts be made to appear, the statute of limitation would not begin to run until after the corporation thus defrauded got out of the hands of the confeder- ates, and an opportunity were afforded innocent agents, coming to the management of the affairs of the town, to look into and ascertain the true state of things. Knowl- edge on the part of the guilty agents of the corporation of the criminal fact is not notice to the corporation of such fraud, so as to give the advantage of this notice to the equally guilty associate of those agents. If this were the law, an agent could always protect himself by joining in a conspiracy to defraud his principal with a convenient friend, who received the principal's property, and who might claim against the principal that the agent had notice of the fraud.

"4. The next and last point is, the statute of limitations of three years applies and bars the claim of the plaintiff to set aside this deed. By article seventeenth, section seventeen (Wood's Digest, 47), is given the limitations of certain actions. The section is 'Actions other than those for the real property, can be commenced as fol- lows: # *

** within three years. An action for relief on the ground of fraud, the cause of action in such case not to be deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud.'

"We think that this provision has no relation to an equitable proceeding to set aside a fraudulent deed or real estate when the effect of it is to restore the possession of the premises to the defrauded party. In such a case, the action is substantially an action for the recovery of the real estate; indeed, it is literally. Express fraud, gen- era'ly, as well avoids a deed at law as in equity, and it would be strange if, after three years, a party could set up the fraud in avoidance of the deed at law, and a different rule prevail in equity. This is really an action for the recovery of real estate, and the plaintiff is no worse off because fraud has been committed upon him, nor the defend- ant in any better situation than if the latter had innocently bought and entered under an imperfect title.

" For the reasons assigned, the judgment below must be reversed and the cause remanded for further proceedings, in accordance with this opinion."

On petition for rehearing, Judge Baldwin delivered the following opinion- Chief Justice Field concurring :.

" Petition for rehearing denied. The opinion modified so as to leave open for future revision the question of the validity of the contract with Carpentier under the ordinance referred to in the opinion."

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HISTORY OF ALAMEDA COUNTY, CALIFORNIA.

"CITY OF OAKLAND v'S. - Appeal from Third Judicial District.

"CARPENTIER.

"The facts are stated in the opinion. The case was before this Court at the April term, 1857, on appeal from an order sustaining a demurrer to the complaint, a report of which will be found in 13 Cal., 154. A trial was subsequently had in the lower Court, resulting in a judgment to the plaintiff, from which the present appeal is taken by defendants."

Chief Justice Field delivered the opinion of the Court, Justices Cope and Nor- ton concurring.

" By an Act of the Legislature passed May 4, 1852, the town of Oakland was created a municipal corporation, the corporate powers being vested in a Board of Trustees, consisting of five members, to be elected on the second Monday of May of each year. By the third section of the Act, the Trustees were clothed with certain powers in relation to wharves, piers, and docks; and with a view to facilitate the con- struction of wharves and other improvements, the town was invested with the title to lands within the corporate limits lying between high tide and ship channel of the bay of San Francisco. On the second Monday of the same month, pursuant to the Act of Incorporation, an election was held, and five Trustees were chosen. Of these only four ever qualified; and at a meeting of the Trustees, consisting of this number, an ordinance was passed granting, in its first section, to the defendant, Horace W Carpentier, and his legal representatives, for the period of thirty-seven years, 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, subject to certain provisions as to the erection of particular wharves, and the payment to the town of a certain percent- age of the receipts of the wharfage; and granting to him in its second section, with a view, as expressed therein, the more speedily to carry out intentions and purposes of the Act of Incorporation, and in consideration of a contract on his part to build a public school house for the town, all the land lying within the corporate limits between high tide and the ship channel. The ordinance also charged the President of the Board of Trustees with the duty of executing, on behalf of the town, a grant or con- veyance to Carpentier, in accordance with its provisions. Under this ordinance the President executed to Carpentier the grant or conveyance designated, reciting in the instrument the authority under which he acted.

"In May, 1853, at the second election under the Act of Incorporation, five Trustees were again elected, and of them also only four ever qualified. The Board, consisting of the four who qualified, by an ordinance, passed in August, 1853, ratified and confirmed the ordinance of the previous Board, reciting that the consideration upon which such previous ordinance had been passed had been 'in chief satisfactorily paid and performed,' and also regranted to Carpentier, and his legal representatives, the water front of the town, with the right to erect wharves, piers, docks, and buildings at any and all points thereon not obstructing navigation.

" By an Act of the Legislature, passed March 25, 1854, a municipal corporation by the name of the 'City of Oakland' was erected, and invested with all the rights,

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claims, and privileges, and subjected to all the obligations and liabilities of the 'Town of Oakland.' The present suit is brought by the new corporation, and its object is to set aside and cancel the grant or conveyance to Carpentier, and enforce a surrender of the interests and property transferred, or claims to be transferred thereby.

" The suit is, of course, for equitable relief, and the grounds alleged for the inter- position of equity are that the grant or conveyance was obtained by fraud on the part of Carpentier, and was made without authority on the part of the Trustees, and that it constitues a cloud upon the title of the city, and embarrasses her in the exer- cise of her legitimate functions.

"The fraud alleged is that Carpentier obtained the Act of Incorporating the town of Oakland without the consent or knowledge of the people of the town, and for the purpose of acquiring the franchises and lands subsequently granted to him; that at the election held under the Act of Incorporation he procured the election of himself and 'partners in land speculations' as members of the Board of Trustees, and declined to qualify himself, in order to remove a legal obstacle to his obtaining the grant in question; and the conveyance to him by the President of the Board was according to an understanding with the Board, to be executed upon the delivery of a bond to reconvey the franchises and lands to the town when requested, but that it was obtained without such bond, upon representations that it was important to the interests of the town that it should be executed at once, in order to be filed before the Board of Land Commissioners, then in session, and that he would give the bond at some future period. No matters are stated in support of the allegation that he 'fraudu- lently procured the election of his tools and agents' in the year, 1853, when the con- firmation of the ordinance was obtained. It is very evident that the matters thus alleged, in order to taint and vitiate the ordinance of the Board of Trustees and defeat the grant to Carpentier, are on their face too vague and general to merit serious con- sideration. It is of no consequence whether the Act of Incorporation was procured with or without the knowledge of the people of Oakland. The validity of the public acts of the Legislature is in no respect impaired by the knowledge or ignorance of the parties who may be affected by their operation. And the general charges referring to the election of members of the Board of 1852 and of 1853, so far as the complaint is

concerned, rest in mere averment. And in relation to the bond for conveyance, which it is alleged Carpentier, by an understanding with the Board, was to execute, it is sufficient to observe that the ordinance itself, to which the complaint refers, negatives any understanding of the kind. The allegations of the complaint are, as a whole, of so vague and indefinite a character that no relief can be based thereon. When the case was here upon the demurrer to the complaint, the Court observed that the alleged fraudulent practices of Carpentier, in procuring the election of the first, or of the second Board, or the promises or agreements made to induce the execution and delivery of the conveyance from the President, were not fully set out; but as the com- plaint might be amended on the return of the cause in these particulars, it proceeded to consider the general questions discussed by the counsel. It is sufficient to say that the complaint was not amended; and aside from this consideration, the answer fully meets and denies the charges of fraud or fraudulent interest in the acts of Carpentier; and what is of more consequence, the charges are wholly unsustained by the proof.

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History of Alameda County, California : including its geology, topography, soil, and productions, Part 72

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