History of Alameda County, California : including its geology, topography, soil, and productions, Part 73

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

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HISTORY OF ALAMEDA COUNTY, CALIFORNIA.

"Stripped of the charges of fraud, the whole claim for equitable relief falls to the ground. The grant was either valid, or void, or voidable. If valid, as contended by the counsel of the Respondent, there can be no occasion for the interference of a Court of Equity. If void, the condition of things-of the rights, privileges, and estate of the city-remains as though no transfer had been attempted. No cloud is cast upon the title, and no embarrassment can attend the exercise of her legitimate func- tions. She has only to proceed and assert her privileges and claim her interests, and whoever interferes with them will be a trespasser. If, however, the grant is only voidable, and not void, the plaintiff seeking the aid of a Court of Equity by doing equity-that is, she can only obtain relief from the acts of agents of the town, by tendering compensation to the defendant, who has relied upon them, for his expend- itures. One of the counsel of the plaintiff, in a brief exhibiting ability and learning, takes the same position in answer to the defendant, who urges his principle against the relief prayed. 'The principle invoked,' says the counsel, 'is not applicable to a case like the present. It is a rule only in cases where a plaintiff is in Court seeking to set aside some act or contract voidable, but not void, as for fraud, mistake, etc .; or to rid himself of a liability, otherwise valid, upon a ground which is against good conscience, and not favorably regarded in equity, as usury, gaming, etc. Here our case is that there never was a grant, contract, or act of any sort, on the part of the town, whatever might have been attempted by her unfaithful agents. As already remarked, she was an artificial being, endowed by the law of her creation and existence with certain limited functions, and utterly incapable of acting or even of being beyond or against these, to any intent or purpose whatever.'

"The conclusion which follows from the views we have expressed is evident. The charges of fraud, as a ground for the equitable interposition of the Court, are fully answered, and must be left out of the case. If the ordinances of the Board, granting the franchises and lands to Carpentier are void, there is no occasion for the interference of equity. If they are only voidable, that interference cannot be invoked until equity is done by the party claiming it-that is, by placing or offering to place the party relying upon the acts of the agents of the town in the same position which he would have occupied but for his reliance upon their validity. These views dispose of the case, and render it unnecessary to consider the other point made by the appellants.

" The Judgment of the Court below must therefore be reversed and that Court directed to dismiss the suit, and it is so ordered."

The Plaintiff filed a petition for a rehearing, upon which Justice Norton deliv- ered the opinion of the Court-Chief Justice Cope concurring.

"The plaintiff asks a rehearing in this case, upon the ground that when the case was before this Court on a former occasion, it was decided: first, that the action could be sustained without an offer by the plaintiffs to do equity; and, second, that although the transfer to the defendant was void, it was a proper case to ask the transfer to be set aside by the equity powers of the Court, and that these decisions have become the law of the case and cannot now be reversed.

" In the former decision the complaint was held to be sufficient, upon the ground

Geor. S. Meyer

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OAKLAND TOWNSHIP-CITY OF OAKLAND.

that the transfer was absolutely void. Nothing was said as to whether it would have been sufficient without an offer to do equity, if the court had considered the transfer not void, but only voidable. Afterwards the opinion was modified, by reserving for future revision the question of the validity of the contract with Carpentier. This was a reservation of the whole question as to its validity, as well whether it was voidable as whether it was void. The question whether or not the transfer was voidable being thus withdrawn, no decision can be inferred as to what would have been necessary to render the complaint sufficient, in case the Court should consider the transfer only voidable.

" It may be argued that when this question was withdrawn from the opinion, there was no ground specified in the opinion upon which the decision was made, but it may be so, it does not follow that the decision necessarily involves a determination of a question which was not only not mentioned, but the basis for which was withdrawn from the opinion; and so, although it was said in that opinion that it was a proper case for equitable relief, considering the transfer absolutely void, yet when the ruling that the transfer was void was withdrawn from the opinion, the remark that it was a proper case for equitable relief became merely 'obiter' and decided nothing. At most, it could be considered as only saying what would be the opinion of the Court in case, upon a revision of the question on some future occasion, the Court should hold the transfer void. Rehearing denied. Filed June 1864."

It remains a mystery why it was that the city, by her attorneys, never amended the complaint referred to above. It is evident . that the Court was on the side of the city, for it held that so far as the right of the question was concerned, the city was correct in its reasonableness. Had their pleadings been perfected and their case been properly conducted, there is but little doubt that the finding of the lower Court would have been sustained; but as it was the water front was given to Carpentier and the law to the city of Oakland.

On August 25, 1863, we find it on record that D. P. & A. Barstow were paid fifteen hundred dollars for services as counsel in the case of The City of Oakland versus H. W. Carpentier, these rendered being: "Trying the cause in the District Court; settling statement for new trial and appeal; arguing cause in the Supreme Court and preparing and filing brief; the same extending over a period of two years."

During the expiring days of the month of August an ordinance was introduced for the purpose of taking immediate action in the Courts to regain, if possible, the water front. The Council made arrangements with the late Hon. John B. Felton, then a lawyer of San Francisco, but the terms being illegal-that they should give and deed to him a certain portion of the public property-nothing was consummated, for such an act was especially forbidden by the charter.

On March 5, 1866, the thirteenth Council was elected, with the late J. W. Dwinelle in the civic chair, and on March 12th, Mr. Barstow introduced a bill grant- ing to the San Francisco and Oakland Railroad Company the privilege of construct- ing and maintaining a wharf for the landing of ferry-boats, and a marine railway for the repair of the boats belonging to the company, the wharf and railway to be located on the San Antonio Creek, at the foot of Franklin Street, the franchise to continue for a term of fifty years; all of which was referred to a special committee consisting of 34

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HISTORY OF ALAMEDA COUNTY, CALIFORNIA.

Aldermen Jayne and Wilcox, who, March 13th, reported: " That whereas, the prop- erty embraced in the bill was long since granted by the Legislature to the city of Oakland, thereby divesting the State of all its rights, title, and interest, the State has · no interest to grant; therefore it would be asking the Legislature to commit a moral wrong-a breach of faith-besides interfering with vested rights, in recommending it to grant again to other parties that which it has once already granted. Believing such to be the fact, we report against the recommendation asked for;" thereupon Alderman Barstow introduced the following resolution :-.

Resolved, That the Alameda delegation in the Legislature be requested to use their endeavors to procure the passage by the Legislature of the bill as amended by the Council authorizing the city of Oakland to grant to the San Francisco and Oakland Railroad Company the right to build a wharf and marine railway on the water front in the city of Oakland, and that a copy of this resolution, together with an engrossed copy of the bill, be for- warded by the Clerk to the delegation,

.Which was adopted.

After the decision of the Supreme Court, water-front matters remained quiescent until November 21, 1866, on which date the Council, at a general meeting, passed the accompanying resolution :---

Resolved, That the Judiciary Committee, in conjunction with the Mayor and the President of the Council, be authorized to take the opinion of counsel on behalf of the city, at an expense not exceeding two hundred and fifty dollars in gold coin, as to the rights of the city to the water front heretofore granted to the town of Oakland, and as to the proper mode of enforcing the same, and that they report thereon to this Board.

And on January 23, 1867, the same Council received a communication from the Mayor, advising the employment of Messrs. Wilson & Crittenden, Counselors-at-Law, to give their written opinion as to the right of the city to her water front, which was placed on file.

On March 4, 1867, a new (the fourteenth) Council was elected, with W. W. Crane, Jr., as Mayor. On July 30th, Aldermen Moody, Barstow, and Wilcox werc appointed a Committee to investigate and report to the Council as to the interest of the city in the water-front property, who, August 24th, represented by Mr. Moody, moved that the Council adjourn and resolve itself into a Committee of the Whole, for hearing the report of the Committee and for discussion. For this purpose a special meeting was convened on August 31st, when Alderman Moody made a verbal report and subsequently introduced " An Ordinance Providing for a Suit to Settle the Title of the City to the Water Front and for the employment of Counsel therein." The ordinance, which was passed, reads :-

SECTION ONE .- A suit shall be prosecuted in the proper Court to determine the rights of the city to the water front, against the persons claiming the same adversely, and John B. Felton is hereby retained to act for the city in said suit, to be paid for his services by a conveyance of an interest equal to fifteen per cent. of the prop- erty and franchises recovered by the city; but to receive no compensation for his services in case nothing shall be recovered.

SECTION Two .- The Mayor of the city is hereby requested to execute the contract hereto annexed on behalf of the city, which is in the following words, viz. :

WHEREAS, The city of Oakland claims title to that portion of the tide lands situated within the limits of said city, and lying between high tide and ship channel, and also certain franchises connected therewith, by virtue of a grant to the town of Oakland made by the State of California, by an Act of the Legislature of said State, approved on the 4th day of March, 1852, and

WHEREAS, Certain persons claim said lands and franchises by virtue of pretended grants made by the pre- tended Board of Trustees of the town of Oakland, to Horace W. Carpentier, in the years 1852 and 1853. Now,

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OAKLAND TOWNSHIP-CITY OF OAKLAND.

therefore, this agreement made the - day of - -, 1867, between John B. Felton of the city and county of San Francisco, party of the first part, and the city of Oakland, party of the second part,

Witnesseth, That for the consideration hereinafter mentioned, the party of the first part undertakes and agrees, as the Attorney-at-Law of said city, to institute and prosecute to final judgment, a suit or suits in the proper Courts against the person or persons so claiming said lands and franchises, adversely to said city; to render his personal services therein until the title and right to the cause shall be finally settled and determined by the Supreme Court; and the city of Oakland promises and agrees to pay said Felton for such services by conveying to him an interest equal to fifteen per cent. of all the property recovered by the city in said litigation, after the same shall have been finally terminated, and a like interest in the franchises, which shall be adjudged, as against the persons so claiming them, to belong to the city; it being understood that, in case nothing is recovered, the city is to pay the necessary court costs and disbursements incurred in said litigation.

In his message, dated September 28, 1867, Mayor Crane observes on the water- front question: " The right of the city to its water front will very soon be tested, and I hope finally settled. It may be that the fraud which deprived the city of this valua- ble property has been so carefully covered as to now be effectual in preventing a recovery, but it will at least be satisfactory to our citizens to have such a conclusion judicially reached."

Save two petitions for certain portions of the water front from William Surrhyne and A. A. Cohen, made in the month of September, we cannot find that any action was taken by the City Council until the 19th October, 1867, on which date the Committee, to whom Cohen's application was referred, reported favorably on the granting of that portion of the water front lying between Webster and Franklin Streets, subject to certain conditions; while, on the 26th of the same month, the report on Surrhyne's application was made; but owing to the absence of the documents for that year, it is impossible to state whether it was favorable or otherwise. There was passed November Ist, " An Ordinance granting to the San Francisco and Oakland Railroad Company the use of a Portion of the Water Front for the erection of a Marine Railroad," which we quote:

SECTION ONE .- That portion of the water front lying below high-water mark, between the easterly line of Franklin Street and the westerly line of Webster Street extended, being three hundred feet in width, and running into San Antonio Creek for a distance of three hundred and fifty feet, is hereby granted to the San Francisco and Oakland Railroad Company, during the corporate existence of said Company, for the purpose of erecting and maintaining a marine railway and wharf, at the annual rent of one hundred dollars, in gold coin, for the first five years, and, at the expiration thereof, and every ten years thereafter, the rent shall be fixed by three Commission- ers, one to be chosen by the Council, one by said Company, and the third shall be appointed by the County Judge of Alameda County, provided, that said Company shall not collect tolls, or wharfage, or dockage, for the use of said wharf, without the consent of the Council of the city of Oakland; and provided, further, that said marine rail- way and wharf shall be so constructed as not to interfere with the free navigation, nor obstruct the channel of said creek.

SECTION Two .- Said Company shall commence the construction of said improvements within three months from the date of the passage of this ordinance, and complete the same within six months thereafter; and it is made a condition of this grant that said company shall, in good faith, contest any claim made to said premises by any person, under a pretended grant of the water front, made by the Board of Trustees of the late town of Oak- land, to Horace W. Carpentier; and shall not, upon any terms, compromise such claim, provided, that the time herein provided for commencing and completing said improvements shall be extended to a period equal to the time said work shall be delayed by legal proceedings; and provided, further, that said improvements shall be sub- ject to the payment of city taxes as personal property of said company.

And now that well-known resident of Oakland, Doctor Samuel Merritt, appears on the scene. On November 2, 1867, he succeeded to the mayoralty on the resig-

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HISTORY OF ALAMEDA COUNTY, CALIFORNIA.

nation of W. W. Crane, Jr., while, on the same date, F. M. Campbell took the seat in the Council vacant by the death of Alderman Anderson.

At this period the advisability of making a change in the charter commenced to engross the attention of the City Council. Several special meetings were had for the purpose of discussing the subject, and citizens were invited to suggest amendments thereto, and it was then that the section giving the city the power to compromise and settle all causes of action and legal proceedings then pending was embraced into it. On the 9th Alderman Miller offered a resolution to the effect that the city charter be referred to the proper committee for revision, with the intent of applying to the Legislature for the necessary amendments, and that the committee be instructed to report at the earliest possible moment. On December 16th they were granted further time, and on the following day, the 17th, on motion of Alderman Pendleton, the Council resolved to go into a Committee of the Whole, for the purpose of taking into consideration the proposed amendments to the charter; but the original committee was not yet ready to report, and further time had to be given them. On the 18th and 19th special meetings were held, but no report came from the committee. The 26th December was settled as the day on which they should make their report, but still none came, therefore, a motion was subsequently made by Alderman Moody, that the charter, with amendments, when ready, should be referred to a committee, which was instructed to put them into shape, and have two hundred copies of them printed. But the Committee on Amendments had made no progress towards a report on the 30th December, and although special meetings were called on January 2, 4, 6, and 8, 1868, it was not until the 13th of that month that their report was made. On January 22d, at a special meeting, the Council proceeded to take final action with regard to the amended charter. The first seven sections of it, with certain emendations, were adopted, while citizens were invited to note amendments which they wished to sub- mit to the Council, on the margin of the pamphlet, and to present them at the next meeting; at which, all the sections having been passed upon, the charter, as amended, was, on motion of Alderman Moody, given into the hands of a committee, with instructions to engross the same.

The amended charter having been accepted by the people it was forwarded to the Legislature, where it was so roughly handled that its original drafters would have failed to recognize their handiwork. The most earnest protests were entered against this action of the legislative body, and the Alameda representative was urged to strenuously oppose its passage. On March 9, 1868, the Council received a communi- cation from Hon. J. W. Dwinelle, the Alameda Delegate, in relation to the city charter and proposed amendments, which resulted in the action mentioned above and embodied in the following resolution: "That it is the unanimous desire of the city of Oakland, that the Oakland Charter Bill, now before the Legislature, should not pass that body, the charter having been so altered and amended since it left our hands, as no longer to be desirable," while at the same meeting it was, on motion of Alderman Hobart, resolved: "That the Senator and Assemblymen for Alameda County be requested to urge the passage of the bill left with Senator Robinson, entitled 'An Act Supplemental to an Act, etc., incorporating the City of Oakland,' passed in the year 1862." A resolution was also offered by Alderman Hobart, requesting the Mayor to

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inform the Council in regard to the present state of the suit for the recovery of the water front and of the contemplated compromise, which was laid upon the table; while, on the same date, Alderman Campbell offered a resolution, requesting John B. Felton to inform the Council as to his powers in the compromise matter, which, too, was laid over.

We have seen how the charter was sent to the Legislature, and how it was treated there. It should be mentioned that tacked on to the end of the instrument was the Act, authorizing the city to settle all causes of action and dispute, which was subse- quently segregated, duly approved March 21, 1868, and became known in history as "The Compromise Act." It is entitled "An Act to enable the City of Oakland to settle its Controversies," and is as follows :-

SECTION ONE .- The Council of the city of Oakland, with the concurrence of the Mayor of said city, is hereby authorized and empowered to compromise, settle, and adjust any and all claims, demands, controversies, and causes of action in which the said city is interested.

SECTION Two .- This Act shall take effect immediately.

On March 27, 1868, there sprung into existence an incorporation called the "Water Front Company," whose first Board of Trustees consisted of E. R. Carpentier, Horace W. Carpentier, Leland Stanford, John B. Felton, Samuel Merritt, and Lloyd Tevis. The articles of incorporation of this company we now append :--

This certifies that we, whose names are hereunto subscribed, do hereby associate ourselves together, and form a company, under the provisions of the Act of the Legislature of the State of California, passed April 14, 1853, entitled "An Act to Provide for the Formation of Corporations for certain Purposes." and the Acts amendatory thereto and supplemental thereto.

The objects for which the said company is formed are, to acquire, build, construct, own, hold, manage, use, and control wharves, docks, basins, dry-docks, piers, and warehouses in the city of Oakland, and in the vicinity thereof, in the State of California, and to lease, sell, convey, grant, mortgage, hypothecate, alienate, or otherwise dispose of the same; to borrow and loan money; to engage in and carry on the business of commerce, foreign and domestic; to purchase, acquire, manage, hold, and control, or to lease, sell, convey, grant, mortgage, hypothe- cate, alienate, or otherwise dispose of the water front of said city, or any part thereof, and any submerged tide and other lands in and about the bay of San Francisco, or elsewhere, together with the rights and franchises con- nected therewith or appurtenant thereto; and also all other property, real, personal, or mixed, choses in action, rights, privileges, or franchises.

The corporate name of the said company shall be "The Oakland Water Front Company;" the time of its existence fifty years, and its principal place of business shall be located in the city of Oakland, in the county of Alameda, and State of California.

The amount of the capital stock of said company shall be five million dollars, and shall consist of fifty thou" sand shares, of one hundred dollars.

The number of the Trustees of said company shall be six, and the names of those who shall manage the con- cerns of the company for the first three months are Edward R. Carpentier, Lloyd Tevis, Horace W. Carpentier, Samuel Merritt, John B. Felton, and Leland Stanford.

In witness whereof we have herewith signed our names, this 27th day of March, A. D. 1868.

[Signed] [Signed] [Signed] [Signed]

[Signed] [Signed]

E. R. CARPENTIER, H. W. CARPENTIER, LELAND STANFORD, JOHN B. FELTON, SAMUEL MERRITT, LLOYD TEVIS.

On behalf of the Committee on Water Front, April 1, 1868, Alderman Moody introduced "An Ordinance for the Settlement of Controversies and Disputes con- cerning the Water Front of the City of Oakland, the Franchise thereof and other

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HISTORY OF ALAMEDA COUNTY, CALIFORNIA.

Matters relating thereto," which was passed to its third reading and unanimously car- ried. The ordinance is as follows :-

SECTION ONE .- The claims, demands, controversies, disputes, litigations, and causes of action heretofore existing between the city of Oakland, on the one part, and Horace W. Carpentier, and his assigns, on the other part, relating to the force, validity, and effect of a certain ordinance passed by the Board of Trustees of the town of Oakland, on the 18th day of May, A. D. 1852, and enrolled May 27, 1852, signed by A. Marier, President of the said Board of Trustees, and F. K. Shattuck, Clerk of said Board, entitled "An Ordinance for the Disposal of the Water Front belonging to the Town of Oakland, and to Provide for the construction of Wharves," wherein and whereby, for the consideration therein named, "the water front of said town, that is to say, all the lands lying within the limits of the town of Oakland, between high tide and ship channel," as described in theAct of the Legislature for the incorporation of said town, passed May 4, 1852, together with all the right, title, and interest of said town therein, together with all the privileges, rights, and franchises therein mentioned, were sold, granted, and released to Horace W. Carpentier and his assigns.

And also in relation to the validity, force, and effect of a certain conveyance, executed and delivered to the said Carpentier, of the said water front, dated May 31, 1852, by the said Amédée Marier, President of said Board of Trustees, under and in pursuance of said ordinance.

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History of Alameda County, California : including its geology, topography, soil, and productions, Part 73

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