USA > California > Alameda County > History of Alameda County, California : including its geology, topography, soil, and productions > Part 90
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" Another subject to which your attention is asked in connection with the services of your legal adviser is the condition of the City Ordinances. I am informed that
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HISTORY OF ALAMEDA COUNTY, CALIFORNIA.
many of them are inefficient to obtain the objects designed by their passage, and that there are but few laws on the Ordinance Book that are not subject, more or less, to legal criticism. The present time seems to me to be peculiarly appropriate for the task, it being one requiring much judgment and experience, and should be accom- plished whilst you can obtain the benefit of the more than ordinary talent of the legal gentlemen among you.
" There has been for some time past much conflict and jealousy between our city officers and the officials of the county respecting the charge and subsistence of pris- oners. It is contended on the part of the county, that, inasmuch as the city receives and appropriates to her own use all the moneys collected for licenses within her limits that she should be at the sole expense of the custody and care of her prisoners. To some extent this position is well taken. I think the city ought to bear the expense of the trial of all persons convicted by her Magistrates. of such offenses as may by law be punished by Justices of the Peace, but that persons accused of crimes of a higher grade, which are triable before a Court of Record, ought to be taken care of at the expense of the county. All cities have much transient population, and a large pro- portion of offenses are committed by persons of this description, and whilst the municipal government may with propriety be asked to bear the expense of preserving the peace within its limits as to all minor offenses, there would be no propriety in fixing on the city the expense of a trial for murder merely because the crime happened to be perpetrated within her boundaries.
" A proper chamber for the meeting of the Council together with an office for the Mayor and a suitable place in which the records of the city may be kept are urgently needed. The damage to the city that would ensue by the loss or destruction of her files and records cannot well be estimated. I would recommend an appropriation for the purchase of a suitable iron safe in which they may be placed. The services of the gentlemen composing your Body are rendered without reward and are the more onerous from the fact that they are required at such times as to withdraw you from the comforts of your homes and firesides. Whilst I should be much averse to any extravagant expenditure for such purposes I deem it only proper that a comfortable apartment for your meetings should be provided. It is unfortunate that with the debt contracted by our predecessors they were not sufficiently provident to secure to the city a suitable building for the transaction of her business."
On November 22, 1863, Edward Hoskins offered the pavilion on Washington Square, formerly occupied by the Alameda Agricultural Society, for sale to the city at twelve hundred dollars, who, on December 22d tendered one thousand dollars for the same, subject to a good and sufficient deed being given.
January 1, 1863, a Democratic newspaper named The Press was started in Oak- land by S. B. English, a gentleman who had previously been associated with James F. Kapp in the publication of the San Leandro Gazette. It lasted only three months, the material being subsequently purchased by Mr. Gagan when he started the Oakland News, in the month of September.
At this time Oakland was, and with perfect right, proud of the number and excellence of her literary institutes. Here was located the only unsectarian college in the State, or indeed on the Pacific Coast, to which were attached professors of
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OAKLAND TOWNSHIP-CITY OF OAKLAND.
acknowledged ability and talent. It afforded every facility for acquiring a classical education, and erected an ornamental frame building for its purposes. The Oakland Female College was in course of construction at this time; while the College School, offering all the advantages of a first-class High School, was in full swing. Besides there was Mrs. Blake's Seminary, considered the most fashionable institution in this portion of the State, and there were the free and several private schools as well. In addition to her schools Oakland was beginning to show activity in her industries. The News of November 19, 1863, has the following: " Few of our citizens are aware of the amount of work turned out by Messrs. Barnes & Palmer at their planing-mill on the corner of Second and Washington Streets, in our city, or of the magnitude and capacity of that establishment. This firm commenced an humble business one short year ago, doing within themselves almost all of their own work, but, by their prompt- ness, energy, and strict attention to business, soon became the leading contractors in this place. Since their start they have turned out and are now turning out nearly all the moldings and scroll-work used on this side of the bay, their machinery being suitable for this work, as well as for doors, sash blinds, window and door frames, finish for buildings, and every article usually manufactured in an ordinary planing-mill. By the use of the latest and most improved machinery they are enabled to compete successfully with San Francisco firms, or, in fact, any firm in the State, so far as the cheapness and quality of their work is concerned, and we are glad to know that our citizens are becoming fully aware of this fact, as a rapid increase of business amply testifies. Pass when you will and the hum of busy industry is heard in the locality of this shop, its capacity being tested to its utmost extent from early morning until the late hours of night. Twenty-five mechanics are now regularly employed, and even this large force is being added to weekly. The heavy contracts for the various build- ings which are now in progress of construction here, have been awarded to this firm, their superior facilities giving them great advantages over many other competitors. Nor is the reputation of this firm confined to Oakland; other cities are fast becoming acquainted with the merits of the Oakland Planing-Mills. Messrs. Barnes & Palmer have been lately receiving plans and specifications of public buildings and private residences from San Mateo and San Francisco, and the contractors of the latter will have to figure pretty close if they would prevent our Oakland mechanics from getting the inside track. And whatever work they agree to do will be done promptly and well, their employés being all firss-class mechanics, while their foreman, Mr. Willet, as an outside workman, has very few equals in the State."
In the month of December, 1863, Archbishop Alemany, assisted by Revs. Messrs. Harrington, Quinn, and Gabriel, performed the interesting and impressive ceremonies of consecrating the new Roman Catholic Cemetery, about four miles from Oakland. It was named St. Mary's Cemetery, and contained thirty-six acres, six of which were in the first instance inclosed. The ground was formerly known as the Mahoney Ranch, and was purchased from Thomas Mahoney. The first person to be buried in it was a Mr. Murphy, who was interred on the afternoon of the day of con- secration.
1864 .- The Street Railroad system of Oakland, which had its birth in this year,
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HISTORY OF ALAMEDA COUNTY, CALIFORNIA.
is very comprehensive, all of the streets of present or prospective importance being covered by a franchise. On June 25, 1864, E. B. Walsworth petitioned the City Coun- cil to the effect that he, with others, at great cost and expense, had erected just outside the northerly limits of the city, a building devoted to the purposes of learning, known as the "Pacific Female College," which at that time was somewhat inaccessible to strangers and persons residing in other parts of the State and from whom the said Institute expected to derive its chief support, while there being no regular means of communication or transportation between the ferries and railroads of the city and the college, the petitioner prayed that he should be granted the privilege of constructing and maintaining a railroad from the southerly limits of the town, running through Broadway, or some other parallel street, to the thoroughfare known as the Telegraph Road, and extending to the northerly limits of the city, and asking that he may be permitted to use either steam or horse power on it when completed. On December 27, 1854, a petition was received from Messrs. Weston, Fogg, and Goss, a committee on behalf of the Oakland Railroad Company, for permission to lay a double track on Broadway, below Fourteenth Street, and a single track from Fourteenth Street to the corporation line, with the other necessary improvements. The prayer was delegated to a committee to report, and stated that the Oakland Railroad Company is a cor- poration duly incorporated for the purpose of constructing, owning, and maintaining, a railroad from a point in Broadway, at or near the wharf in the city of Oakland, to a point in Oakland Township at or near the lands belonging to the "College of Califor- nia," the road being located through Broadway and Telegraph Road. On February 21, 1865, the Council-
Resolved, That the Oakland Railroad Company, previous to obtaining any right to lay tracks in the city, should agree to the following propositions: First, that the Company shall not ask the Legislature for any exten- sion of the term of twenty-five years without previous authorization of the Council, nor the right to use steam within the city limits without such previous authorization. Second, that the company shall petition and if possi- ble obtain from the Legislature the right to collect fare within the city limits.
The term of franchise was, however, changed to twenty years, on the 10th of March.
On March 28, 1865, a petition was received from the Contra Costa Railroad Company, to construct a line in the city of Oakland, from the water front of the said city, where the same is intersected by Broadway, and over and along said Broadway to its intersection with the roads known as the Telegraph and San Pablo Roads, or from said water front at its intersection with Washington Street, and over and along said Washington Street to its intersection with the said San Pablo Road, and thence along said road to the northerly boundary of the city.
In respect to the Oakland Railroad Company, the committee to whom was referred the draft of an ordinance granting to them the right of way to lay down a track in the city of Oakland, reported, August 15, 1865, that in their opinion the Council had no authority to pass the ordinance making the grant. They further stated: "The city is a municipal corporation existing and acting only by virtue of its organic law. It possesses no power not expressly given by its charter, except inci- dental powers which are necessary to the exercise of the powers expressly granted- or authorized by the general laws of the State; and we have only to look first to the charter, and second to the general laws to determine the question.
H. T. Nelas
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OAKLAND TOWNSHIP-CITY OF OAKLAND.
"First .- An examination of the charter fails to disclose any authority given directly or indirectly to divert a public street from its ordinary use. Streets are public property, dedicated to ordinary public uses, and no power is given to the cor- poration to permit them to be used for other than ordinary purposes-much less to give one man, or set of men, any exclusive right to use the same for any purpose. The Legislature has always regarded the exercise of such a power as dangerous to the public interests, and hence no municipal charter, it is believed, in the land, delegates such power to a city government. The right to control a public easement to the extent under consideration remains with the Legislature, and it is only granted in special cases by special Acts. But it is sufficient to say that the charter of Oakland does not, in terms or by implication, authorize the grant.
"Second .- No general law of the State authorizes it, but, on the contrary, all the laws on the subject directly imply the reverse.
"By Section twenty-one of the General Railroad Law (Acts of 1861, page 618) it is provided that a city may grant to a railroad company the use of any street which may be absolutely necessary to enable such company to reach an accessible point for a depot in such city, or to pass through the same on as direct a route as possible; but it expressly excepts street railroads from the benefits conferred by the section. Here then is something more than a denial by implication; but the section goes further and provides that no railroad company shall use their railroad for street railroad pur- poses, or for the purpose of carrying passengers for a consideration, from one point to another in the same city.
"Section fifty-eight provides that corporations may be formed under the Act, for the purpose of constructing, running, and maintaining a street railroad, being wholly within the limits of a city, etc., under a franchise granted to such corporation or its assignors, by the Legislature of the State. By this section the principle is clearly recognized that the power to grant such franchises is in the State, and what follows in the same section makes the matter still more clear, for it provides that such corpora- tions-i. e., street railroad companies-shall have all the rights, powers, and privileges conferred by the Act granting the franchise. By a fair construction of the section we conclude that the Legislature intended first, that street railroad companies should not operate except by virtue of a special Act; and second, that such companies should not have or exercise rights, powers, or privileges not conferred by such special Act.
" But it may be answered that the Oakland Railroad Company is not a strict railroad corporation; perhaps it is not, strictly speaking, a street railroad company, yet it is such for all purposes contemplated by the restrictive clauses of the Act referred to, and would be so regarded by a court of equity. The fact that the road is intended, at some definite time, to be extended considerably beyond the northern limits of the city, does not at present make it the less a street railroad; for, were it otherwise, the express provision of the law could be evaded by continuing the track one foot or one inch beyond the northern limits of the city. But, admit that the proposed road would not be a street railroad in the sense used by the statute, and we still meet with difficulties in the sections of the Act before referred to; for there a city is only allowed to grant the right of way through on as direct a route as possible, or to grant the use of a street which may be absolutely necessary to enable the company to
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HISTORY OF ALAMEDA COUNTY, CALIFORNIA.
reach an accessible point for a depot. It does not appear necessary to go to the foot of Broadway to reach an accessible point for a depot.
" But the inhibition against using the proposed road for 'street railroad purposes ' or for the purpose of carrying passengers, for a consideration, from one point to another in the same city (see Section twenty-one, above referred to) would seem to be suffi- cient to satisfy the company as to the unprofitable nature of their enterprise. They may be, and doubtless are, acting under advice as to their legal rights.
"In the case of The State of New York vs. The Mayor and Aldermen of the City of New York [3 Duer's Rep. p. 119, cited in Redfield's Railroad Law, p. 616], the powers of municipal corporations in like cases are thoroughly discussed, and the conclusion of the court is that such corporations do not possess the power to make grants like the one petitioned for by the Oakland Railroad Company.
" D. P. BARSTOW."
This report was referred to a Special Committee composed of Alderman Jayne, Shattuck, and Faulkner, who, August 22d, reported an ordinance granting the right of way as prayed for, to which several amendments were offered, the whole matter being subsequently referred to Messrs. Jayne, Miner, and Barstow, as a special committee, whereupon Mr. Barstow offered the following resolution, which was adopted :--
Resolved, That the Council will cooperate with the Oakland Railroad Company in procuring from the Leg- islature at its next session a franchise in conformity with the accompanying general form of an ordinance, provided that said Oakland Railroad Company shall notify the Council of their acceptance of the same on or before the first day of December next.
On January 30, 1866, a copy of the bill was transmitted to the Legislature, with the amendments proposed by the Council. The company obtained its franchise from the Legislature, May 3, 1866. This special Act granted to the Company the right to lay a track from Broadway Wharf to the University Grounds, the track within the city to be a double one, should the company so desire. Along the Telegraph Road only a single track could be laid. The fare for a single passenger was limited to ten cents, and sixteen tickets must be sold for one dollar. The franchise was to last thirty years; the speed was not to exceed eight miles an hour; and at the expiration of ten years the rates of fare were to be again fixed by the Legislature. The names of the original incorporators of the company are: F. Delger, E. B. Walsworth, Israel W. Knox, A. Hersey, S. E. Alden, I. H. Brayton, F. E. Weston, F. K. Shat- tuck, B. F. Ferris, S. H. Willey, George Goss, George H. Fogg.
On March 12, 1866, Mr. Jayne presented a petition of property-holders and residents on Fourth, Eighth, Twelfth, Broadway, and Market Streets in favor of a charter being granted by the Legislature for the building of a horse railroad on said streets. Also a bill granting to R. J. Vanderwater and his associates the right to construct said railroad, and a petition from that gentleman soliciting the Council to recommend to the Legislature the passage of said bill.
On January 18, 1868, in the matter of the Oakland Railroad Company, the Council passed the following resolutions :-
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OAKLAND TOWNSHIP-CITY OF OAKLAND.
Resolved, That the Council of the city of Oakland are opposed to the attempt to revive the Oakland Railroad franchise by an extension of time for commencement of the same.
Resolved, That we are in favor of granting a new franchise under proper limitations.
Resolved, As the sense of the Council, that any grant for a horse railroad should compel the company asking for a franchise to complete the same within one year from the time of the grant, and to commence the same within six months.
Resolved, That the Clerk forward to our Senator and Assemblymen a copy of these resolutions.
This bill was duly approved February 4, 1868, and the time for completing the road so extended that, under the law, one track should be laid within the limits of the city within three years and six months from the date of the passage of the first Act, and the whole road completed within five years from that time.
On May 2, 1870, the right of way was granted to F. K. Shattuck and others for a street railway to commence at the charter line on the east of the city on Twelfth Street; thence upon and along said line of Twelfth Street to Broadway; thence down Broadway to Eighth Street; thence westerly along Eighth Street to Wood Street; thence southerly along Wood and Pine Streets to Railroad Avenue; another franchise being at the same time granted to said parties for a line commencing at the water front on Adeline Street and running thence along that thoroughfare northerly to the charter line. On May 24th a petition was received by the Council from B. F. Mann and others for the right to lay and operate an iron railroad commencing at Broadway, at its intersection with San Pablo Road, along that thoroughfare to the charter line. On August 29th an ordinance granting to certain persons the right and franchise for constructing, building, and operating and maintaining a street railroad from San Antonio Creek along the center of Market Street to the northern charter line of the city, was passed. On May 22, 1871, an ordinance granting to Edward Tompkins, Thomas J. Murphy, and others the right to lay down and maintain an iron railway in certain streets, and, June 2d, another giving a like privilege to J. S. Emery and others for a steam railroad through Peralta Street, were passed. This latter was again granted a franchise in 1872. June 24, 1872, an ordinance granting to the Oak- land Central Railroad Company a franchise to lay a track and operate a line on Second and Franklin Streets was passed, and, on December 9th, a like privilege for certain other streets was granted to H. F. Shepardson, Theodore Meetz, H. S. Slicer, and J. E. Whitcher. This last is the Alameda Road. On March 10, 1873, certain privileges were granted to the Oakland, Alameda & Piedmont Railroad Company. On December 8, 1873, an ordinance was passed consenting to the abandonment of the portion of the franchise, so far as regards Eighth Street, to the Oakland, Brooklyn & Fruit Vale Railroad. On March 9, 1874, the Oakland Railroad Company were authorized to lay down an additional track from Fourteenth to Durant Streets. On September 21, 1874, an ordinance granting to the Alameda, Oakland & Piedmont Railroad Company the right to lay down an iron railroad on certain streets was passed. On April 12, 1875, the right to lay a track in certain streets was granted to C. T. Hopkins and others. On February 7, 1876, the same privilege was granted to the Northern Railroad Company as far as regards Cedar Street. On March, 13, 1876, the right to construct a street railroad for horse-cars was granted to the East Oakland, Fruit Vale, and Mills' Seminary Railroad Company. On March 20, 1876, the same right was given to Grant I. Taggart and others for a line extending from West Oak-
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HISTORY OF ALAMEDA COUNTY, CALIFORNIA.
land to the eastern limits of the city. On April 24, 1876, the right to construct a railroad on Market Street was granted to the Oakland, Berkeley, and Contra Costa Railroad Company, and, on June 26th, a franchise was given to the Broadway and Piedmont Railroad Company. On November 12, 1877, E. C. Sessions and others were granted like privileges on East Eleventh Street. On February 17, 1879, an ordinance granting to A. C. Dietz and associates the right to lay a steam railroad in the city was passed, the "Elsey Ordinance" being lost at the same meeting, and, April 3, 1882, an ordinance was passed granting to the California and Nevada Railroad Com- pany the like privileges.
In the year 1864 the glory and promise of the Alameda Agricultural Association was dimmed by the selling of their buildings on Washington Square by E. Hoskins, who held a mortgage over the property, while a similar fate subsequently befell the Agricultural Pavilion. In this year (1864) there were passed by the Legislature, "An Act to authorize the City Council of Oakland to improve streets, lanes, alleys, courts, and places. To have power to lay out new streets; to grade and improve; notice to be given of intention to improve; remedy of persons aggrieved; to file a remonstrance; owners of property to petition for improvements; how contracts are to be made; duty of Marshals; assessment for expenses; city to pay for improvements on its own prop- erty; when done on one side of the street, the lots on that side only to be assessed; City Marshal to make assessments; warrants to be attached to the assessments; assess- ments to be a lien on the property; contractors to collect; appeal to counsel; contrac- tors may bring suit;" and, "An Act supplementary to an Act entitled, 'An Act to Incorporate the city of Oakland, passed March 26, 1854. Abating nuisances within city limits; providing building for municipal purposes; licenses; election of Justice of the Peace.'"
In April, 1864, a Methodist church was commenced on the corner of Ninth and Washington Streets, the building to be sixty feet long and thirty-eight in width, and to cost five thousand dollars; the architects being Hagland & Newsom. The build- ing was dedicated in August, 1864. On June IIth, the George Goss, afterwards named the Louise, a new steam ferry-boat, was launched in San Francisco; she being intended to replace the Contra Costa. In the same month, Messrs. Leland & Harwood opened a lumber-yard at the foot of Broadway. In August, 1864, the North Oakland Home- stead Association filed its articles of incorporation, having as its object the purchase of large tracts of land in Oakland Township, and the subdivison of them into lots for the members. Capital stock, twenty thousand dollars, divided into one hundred dol- lar shares : Trustees, J. S. Emery, Thomas Bass, D. N. Hawley, T. B. Bigelow, Elijah Bigelow, J. G. Darves, W. W. Crane, Jr .: while, on the 25th of the same month, the College Homestead Association filed its articles, capital stock, sixty-two thousand five hundred dollars, divided into shares of five hundred dollars each. Trustees: William Sherwan, E. B. Walsworth, Ira P. Rankin, L. B. Benchly, Cyrus Palmer, John W. Dwinelle, J. B. Bigelow. On August 22, 1864, A. Muller, opened a hotel at the corner of Broadway and Second Streets; while we learn that in the month of Septem- ber, the Oakland Flouring Mill was doing a large and profitable business, under the direction of Potter & Co.
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