History of Alameda County, California : including its geology, topography, soil, and productions, Part 78

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

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" Second .- That if the power to establish ferries was conferred, such power was held by them as a public trust, to be exercised by them and their successors when the public good might require. They had, therefore, no authority to confer upon any individual the exclusive right to keep and run a ferry or ferries between Oakland and San Francisco, still less such a right with regard to ferries 'between Oakland and any other place.'

" Third .- That if such powers were intended to be given the Trustees, they could only have referred to ferries across waters wholly within the corporate limits of the town.

" Fourth .- That under any possible view of the case, the right of the complainant is doubtful; and that therefore the injunction ought not now to be granted.

In the same case, Judge McAllister delivered an opinion, and in summing up says:

" The contract between the town of Oakland and Carpentier must be deemed a fraud upon the law and a complete evasion of its policy and object. A public trust was confined to the authorities of Oakland, to be executed by them as agents of the public. It was not in their power to denude themselves of the trust. It was not their 'common property,' and by the charter could not be sold or disposed of. It was a public trust to be exercised by them as agents of the community, which they could not discard so as to prevent their successors from establishing additional ferries required by the public convenience. By the contract they 'granted, sold, released, and conveyed' to an individual, his successors and assigns, exclusively, for the space of twenty years, the right to keep and run a public ferry or ferries, so as to demand and receive compensation therefor, between the town of Oakland and the city of San Francisco, and between 'the said town and any other place' together with all and singular, the ferry rights, privileges, and franchises which now are, or may hereafter be, held and owned by said town. By such contract the then authorities of Oakland attempted to convert a public trust to private and individual use, and to place for twenty years under the exclusive control of an individual and his assigns all, even future means of ferry communication across the navigable waters from Oakland to any other place. Such never was the intention of the Legislature. Such an Act it was not in the power of the authorities of Oakland to do, and such a transaction a Court of Equity cannot sustain.

" This tribunal could not interpose by the extraordinary process of injunction, to support rights derived from such a source; and maintain a title, which, so far from

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HISTORY OF ALAMEDA COUNTY, CALIFORNIA.

being free from doubt, was executed under a contract in fraud of the law, under which it proposes to be executed, and to sustain restrictions over the navigable waters of this State, which the Legislature has declared shall be exempt from all such restric- tions."

The case was taken on appeal to the Supreme Court of the United States, when the judgment of the Lower Courts was sustained, as will be gleaned from the follow- ing decision of Mr. Justice Nelson :-

"This is an appeal from a decree of the Circuit Court of the United States for the district of California.

" The bill was filed by the complainant in the Court below to restrain the defend- ants from running a ferry between the city of San Francisco and the city of Oakland, on the opposite side of the bay, and which, it is claimed, is in violation of the exclusive privileges belonging to him under the authority of law. The authority, as set forth in the bill, is derived from the charter of the town (now city) of Oakland. The third section of the charter (passed May 4, 1852) provided that 'the Board of Trustees shall have power to make such by-laws and ordinances as they may deem proper and necessary;' among other things, 'to lay out, make, open, widen, regulate, and keep in repair all streets, roads, bridges, ferries,' etc., 'wharves, docks, piers, slips,' etc., ‘and to authorize the construction of the same; and with a view to facilitate the construc- tions of wharves and other improvements the land lying within the limits aforesaid, (that is of the corporation) between high tide and ship channel, are hereby granted and released to said town.'

"It is admitted, if the authorities of the town of Oakland possessed the power under the charter to grant an exclusive right of ferries between that place and the city of San Francisco, the complainant has become vested with it. The question in the case, therefore, is whether or not the power was conferred by this third section of the charter.

" It is a well-settled rule of construction of grants by the Legislature to corpora- tions, whether public or private, that only such powers and rights can be exercised under them as are clearly comprehended within the words of the Act, or derived therefrom by necessary implication, regard being had to the objects of the grant. Any ambiguity or doubt arising out of the terms used by the Legislature must be resolved in favor of the public. This principle has been so often applied in the con- struction of corporate powers, that we need not stop to refer to authorities.

" Now, looking at the terms of the grant in this case, and giving to them their widest meaning, either separately or in the connection in which they are found, or with the object for which the power was conferred, we find, indeed, a power to establish and regu- late ferries within the corporate limits of the town, but not an exclusive power. Full effect is given to the words in which the power is granted, when the simple right is conceded to establish and regulate ferries. If the grant had been made to an indi- vidual in the terms here used, the question would have been too plain for argument. In our judgment we can have no wider interpretation, though made to a corporation. It must be remembered that this is not the case where the Crown or the Legislature has aliened to a municipal corporation its whole power to establish and regulate ferries within its limits, as may be found in some of the ancient charters of cities of

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OAKLAND TOWNSHIP-CITY OF OAKLAND.

England and in this country. In these cases the municipal Body in respect to this legislature or public trust, represents the sovereign power and may make grants of ferry rights in as simple a manner as the sovereign. The error, we think, in the argument for the appellant, is in confounding this grant with these ancient charters, or those of a like character. But, on referring to them, it will be seen that the form of the grant is very different-much more particular and comprehensive, leaving no doubt as to the extent of the power (Costar vs. Brush., 25 Wend. R. 31). So here, if the Legislature had intended to confer their whole power upon this corporation to establish and regulate ferries within its limits, or a power to grant exclusive ferry rights therein, a very different form of grant would have been used-one that would have expressed the intent of the law-maker to part with the exclusive power over the subject, and vest it in the grantee. In the form used, no such intent appears or can be reached except by a very forced interpretation, which we are not at liberty to give, according to well-settled authority (II Pat. 422; 8 How. 569; Mills et al. vs. St. Clair Co. et al., 16 id. 524; Fanning vs. Gregoire). In Mills vs. St. Clair Co. the Court speaking of a ferry grant, said that in a grant like this by the sovereign power, the rule of construction is, that if the meaning of the words be doubtful, they shall be taken most strongly against the grantee and for the government, and therefore should not be extended by implication beyond the natural and obvious meaning of the words; and if these do not support the claim, it must fall. And again, in Fanning vs. Gre- goire, speaking on the same subject, the Court says: The exclusive right set up must be clearly expressed, or necessarily inferred, and the Court think that neither the one nor the other is found in the grant to the plaintiff nor in the circumstances connected with it.

" As the town of Oakland had no power, according to the above construction of the charter, to establish an exclusive right of ferries within its limits, it follows that it did not possess the power to confer upon others an exclusive privilege to establish them.

" The power conferred is to make (meaning to establish) and regulate ferries, or to authorize the construction (meaning the establishment) of the same.

" We think the Court below was right, and that the decree must be affirmed."

Too much credit cannot be accorded to the late Mr. Larue for the persistency with which he fought this monster imposition, finally proving beyond a peradventure that the first or subsequent Boards of Trustees had no authority in law to grant either property or privileges belonging to the city of Oakland to individuals.

The obstruction at the mouth of San Antonio Creek continued to offer many difficulties to free communication with San Francisco, and, to push the matter, some gentlemen formed themselves into a committee for the purpose of raising sub- scriptions to defray expenses of dredging, etc. The sum of eleven thousand dollars was soon collected, but three thousand dollars more were wanted; therefore in August, 1859, a circular letter was issued by these gentlemen, in which they remarked: "The channel is to be thoroughly dredged, from the deep water of the bay to the San Antonio Channel, two hundred feet wide and five feet deep at extreme low tide-to be marked with piles on each side through the whole length, at a distance of forty feet from each other. The whole work is to be done, and materials furnished, for the

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HISTORY OF ALAMEDA COUNTY, CALIFORNIA.

sum of fourteen thousand dollars, the contractor giving the most satisfactory securities for the faithful performance of the work. The United States Government has given the gratuitous use of the splendid dredging-machine which has been in use at Mare Island, and the work will be commenced as soon as the contract money is paid in to the treasurer, W. A. Bray, Esq.

W. A. BRAY, A. A. COHEN, L. JOHNSON,

A. L. TUBBS, JOHN CAPERTON, R. E. COLE.

Meeting with success, the harbor was soon cleared of its hinderances, and for a time.at least something like certainty in duration of transit prevailed; while, an Act was passed in the Legislature for the improvement of San Antonio Creek, the Board of Supervisors being appointed to superintend the work. The Act also provided for plans and specifications being drawn up; stated that the county should not be respon- sible stockholders, but that it might purchase the work when the sum of forty thou- sand dollars was paid in, and directed that the privileges should expire in ten years. The scheme, however, did not result satisfactorily; therefore, in 1860, a bill was intro- duced in the Legislature to enable the Board of Supervisors to tax the county for the work, which duly became law. The Commissioners appointed under this enact- ment were James Dougherty, Alfred L. Tubbs, and W. A. Bray.

Much enthusiasm was evinced in Oakland on August 2, 1862, on the commence- ment of the ferry railroad, and the initial steps being taken towards the construction of the wharf, proceedings which caused an immediate advance of about fifty per cent. in the value of real estate. On September 2, 1863, the railroad ferry went into operation with the following time-table, which is produced simply as a matter of comparison between now and then :-

Leave San Francisco at 7 A. M., 9 A. M., II A. M., 2:30 P. M., 4:30 P. M., 6:30 P. M.

Leave Oakland at 6 A. M., S A. M., IO A. M., I P. M., 3:30 P. M., 5:30 P. M.

The steamer Clinton continued on the creek route, carrying freight and the San Antonio passengers, making five trips per day. By October, 1864, the railroad had been extended to San Antonio, and soon six daily trips between that place and San Francisco were made besides an extra "night trip" every Saturday, leaving San Antonio at 6:30 P. M., and returning from San Francisco at 11:30 P. M. In 1863 James B. Larue, A. W. Swett, and William Hayward obtained a franchise to con- struct a wharf in San Francisco for the accommodation of their line of steamers.

It may be mentioned that up to this time all previous efforts to place the bar at the mouth of San Antonio Creek in a good navigable condition had proved compara- tive failures; therefore, in January, 1864, Mr. Larue, in the name of the Oakland and San Antonio Steam Navigation Company, presented to the Board of Supervisors for their approval a scheme for dredging the bar, and keeping it clear, provided they would grant him a franchise and permit him to take toll. He argued that there was no danger of such a franchise proving a monopoly as there were two ferries communica- ting with Oakland and Alameda, irrespective of the creek. The proposition was sub- sequently approved by the Supervisors, and the project embodied in a bill, which, although it passed the Legislature, was, as the sequel has shown, very properly vetoed by the Governor.

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OAKLAND TOWNSHIP-CITY OF OAKLAND.

The Oakland and San Antonio Steam Navigation Company did not prosper financially as well as its promoters expected. The California Steam Navigation Com- pany purchased a large amount of their stock and strove to get the majority of it. The President, Mr. Larue, was forced to buy a sufficient amount to control the whole business, or allow the scheme to fail; in doing so he became largely involved. The steamers were sold to the Oakland and San Francisco Railroad and Ferry line, but the great desideratum of cheap rates was established in the place of most exorbitant demands. In March, 1865, the Contra Costa or Minturn ferry line of steamers, consisting of the Contra Costa and Clinton were sold to the San Francisco and Oakland Railroad Company, who continued the service.

Under date September 28, 1867, the City Records show that Mr. Moody offered the following resolution :-

WHEREAS, The population of the city of Oakland and vicinity being wholly made up of the families of those who do business in San Francisco, and of those who, not having business in San Francisco, are sustained by the business created here by those who daily cross the bay, and the Oakland Ferry and Railroad being the only means by which this large population can travel between their homes and places of business; and

WHEREAS, It being only by the extension of proper facilities, in frequency, regularity, speed, and safety of transit, combined with comfort upon the boats and convenience of stations upon the road, that homes here may become desirable and property valuable; and

WHEREAS, The facilities for transit afforded by the Oakland Ferry and Railroad not having been such as to give entire satisfaction to the community, and satisfaction and confidence being indispensable to our prosperity,

Resolved, That this matter be referred to a special Committee to devise ways and means to obtain more sat- isfactory ferry facilities between Oakland and San Francisco, wherein the community can have some voice or guarantee for the facilities afforded; and that said Committee be' instructed to consider and report with the view of obtaining Legislative aid if necessary.

On October 28, 1869, notice was given at Sacramento that the Western Pacific and San Francisco and Bay Railroad Companies, the latter of which had been in exist- ence only a short time, had amalgamated and consolidated into a new company, and on the Ist November the Western Pacific took formal possession of the Oakland Ferry, the rates for commutation tickets being then established at three dollars per month, and hourly trips introduced. On May 1, 1871, the trips were increased from twelve to fourteen in number, and on the 30th of the same month the passenger-shed was opened.

March 16, 1868, a special meeting of the City Council was convened to take action in regard to a bill introduced in the Legislature granting a franchise to certain persons for cutting a channel through the bar at the mouth of San Antonio Creek, when Mr. Barstow introduced the following resolutions, which were unanimously agreed to :-

WHEREAS, It is reported in the newspapers that a bill has been introduced into the Assembly to grant to certain persons the right to improve the navigation of San Antonio Creek and to collect tolls at the rate of five cents per ton on all vessels navigating said creek; and

WHEREAS, The county of Alameda has expended the sum of forty thousand dollars and upwards in cribbing and dredging the bar at the mouth of said creek, thereby rendering the same passable for all vessels which are suited to the depth of water in the channel of said creek, except at the lowest stages of the tide, and affording all the facilities for navigating said creek which the demands of commerce will require for some time to come; and

WHEREAS, There has been no public demand on the part of the citizens of the county for the passage of any such bill or the granting of any such exclusive privileges, and said bill has been prepared in the interests of pri- vate parties, without reference to the public wants or the public good; therefore,

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HISTORY OF ALAMEDA COUNTY, CALIFORNIA.

Resolved, That we regard the granting of a franchise to collect tolls on vessels navigating San Antonio Creek, as a measure highly detrimental to the interests of our city and of the county as well.

Resolved, That there is no present necessity for the improvements contemplated by said bill, and that when such necessity shall arise it will be for the public interests that such improvements be made at the public expense, and the navigation of the creek remain free to the public.

Resolved, That the clerk send a copy of these resolutions to each member of the Alameda delegation in the Legislature.

Subsequently steps were taken to effect the dredging necessary, and on Septem- ber 16, 1873, the bid of Ball & Weatherby was accepted by the Council and the work proceeded with. On January 19, 1874, Mr. Warner presented a communication from his Honor, the Mayor, transmitting the preamble and resolution of the Board of Trustees of the town of San Leandro, petitioning Congress to make an appropriation for the construction of a ship channel from the bay of San Francisco, along the south- erly line of the city of Oakland, and connecting with San Leandro Bay, which was received. Mr. Spaulding then presented the following preamble and resolution:

CITY COUNCIL CHAMBER, 1

CITY HALL, OAKLAND, January 19, 1874. J

The Common Council of the city of Oakland, duly convened for official business this 19th day of January, A. D. 1874, the president and all the members being present, on motion of Councilman Spaulding, seconded by Councilman Warner, it is resolved to memorialize the honorable Congress of the United States upon the impor- tance of improving the harbor of Oakland for commercial purposes, and for the reasons which the following recital of facts will show:

First .- The commerce of the United States in traffic and travel, as connected with the Pacific Coast and the great Continental roads, is now and has been for several years carried on over the water front of the city o Oakland in the State of California.

Second .- That while this commercial business is rapidly increasing, it had already attained, in 1872 and 1873, the aggregate of four hundred and fifty thousand tons of general freight, and in the year ending July 1, 1873, no less than one hundred and ten ships were loaded at the Oakland Wharf with California wheat, amounting to one hundred and sixty-one thousand tons, to be distributed to the markets of the world.

Third .- The transit of passengers from Asiatic and other foreign ports, from San Francisco and from the cities east of the Rocky Mountains, arriving and departing at Oakland by the great overland railroads, amounted to an aggregate of sixty-seven thousand souls for the year ending January 31, 1873. The local travel by ferry- boat between Oakland and San Francisco shows a rapid yearly increase and now requires the constant use of half-hourly boats and trains, carrying a daily average of five thousand persons, equal to a yearly total of nearly two million passengers. During the year 1873 the treasure from all sources in the interior of the State of Califor- nia, and from the Nevada mines reaching the Oakland dock, amounted to no less than thirty-one millions of dollars in value. The two staples of the Pacific Slope, wheat and bullion, find readiest access to deep water upon the Oakland water front. The location of the city of Oakland relative to the range of mountains known as the Coast Range of California, and the great bay of San Francisco, is such as to make the Oakland water front the nearest practicable railroad approach to deep water in the hay, alike adjacent to the city of San Francisco and the Pacific Ocean. And

WHEREAS, The present wharf, although erected by the railroad companies at a cost of nearly one million of dollars, can only be regarded as a temporary structure, entirely inadequate to the present and prospective demands of commerce. Now, therefore, be it

Resolved, That the City Council of the city of Oakland, California, do hereby most respectfully call the attention of Congress to the above plain recital of facts, and ask that a suitable appropriation may be made for the improvement of the estuary of San Antonio, the harbor of Oakland, in accordance with such plans as may be recommended or considered expedient hy the Board of Engineers for the Pacific Coast and the Chief of Engineers of the United States Army.

In the same month, January 12th, the Board of Supervisors adopted a memorial to the Senate and House of Representatives of the United States Congress, couched in similar language, the result of these being that appropriations were, and are being,

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made to perfect the contemplated improvement. On February 28, 1876, the Mayor informs the Council in this regard: "It affords me great pleasure to be able to announce that the improvements of the Oakland Harbor by the United States Gov- ernment have been progressing rapidly and with gratifying results. From the engi- neer in charge I learn that the work of constructing the channel training-walls has advanced satisfactorily and with few interruptions. Each of the two walls have now reached a respective length of nine thousand feet, linear, consuming collectively about ninety-five thousand tons of stone, and their further extension still progressing. The recent heavy weather has set at rest the disputed question as to their stability, and their anticipated settlement has been so small a per cent. that the funds at the disposal of the Board will accomplish an amount of work beyond the most sanguine expecta- tion. The effect of the building of the said walls has been to increase the tidal cur- rent to such an extent as to scour out the channel on the bar to a present depth of eight feet. at United States Coast Survey, mean low water, and it is continually increasing. Vessels drawing six feet of water and piloted by suitable men, can, at the present day, go and return through this channel at all stages of the tide, without danger.

" In regard to future operations I am informed that a channel two hundred feet in width and twelve feet deep at low water is to be dredged, and work will be com- menced very shortly. Should our representative in Congress have reasonable suc- cess, within one year from this date Oakland will enjoy shipping advantages far beyond all present expectations.

" Merchant vessels of three hundred tons and four hundred tons registered bur- then, drawing sixteen feet of water, will be able to receive and discharge cargoes along the present city front, even during ordinary tide. These facilities must necessarily give rise in the immediate future to a commercial prosperity of paramount importance to our city and county."

It is only necessary to say that these improvements are being still carried out with eminent success, and the day is not far distant when Oakland will possess com- mercial advantages in respect to her harbor second to no other port on the Pacific Coast.

In regard to the ferries we shall simply observe that no better service exists any- where. The building of the mole and new depot by the Central Pacific Railroad have added materially to the comfort of passengers on the main local line, while the creek route has its fair share of patronage; add to these the boon conferred by the South Pacific Coast Railroad Company and their excellent line of ferry-boats which, landing on the Alameda side of the San Antonio Creek, transfer their passengers by a local line over Webster-street Bridge into the heart of the city, and we have the summum summarum of comfortable travel.

In times past several steamers have been used on the creek route. One of these, the Express, is said to be laid up in Napa Creek, dismantled and fast rotting to pieces. She was run by Wingate, and made trips from San Francisco to Oakland and Brook- lyn. Oaklanders of some ten years back will recall the Chin-du-Wan, another stern- wheeler of small capacity, which was on the creek route in opposition to the regular ferry and to two small side-wheelers, the Louise and another, run by the Central

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History of Alameda County, California : including its geology, topography, soil, and productions, Part 78

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