USA > California > Alameda County > Past and present of Alameda County, California, Volume I > Part 22
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At this time (1877) Oakland was the second city and Alameda the second county in the state in point of population. For several years the cases docketed were far too numerous to be properly disposed of in the time allotted by the court term. Sixty cases went over to the next term in April, 1877, for lack of time of the judge to hear them. Many of the parties were ready for trial. In addition there were about thirty cases under advisement awaiting the decision of the court. The whole community suffered from this state of affairs. There was thus a gen- eral demand that Alameda county should be made a separate and independent judicial district. In July the case of the State vs. the San Francisco Chronicle was tried here and attracted much attention. That newspaper was charged with having libeled Senator A. A. Sargent and Congressman H. T. Page. Among the distinguished citizens present were George F. Gorham, secretary of the United States Senate, Gen. O. H. La Grange, of the Mint, Charles de Young, of the Chronicle, and several of the ablest attorneys of San Francisco.
The large and increasing number of juvenile criminals early in 1877, was cause of serious reflection on the part of the county and the citizens. The grand jury in April found one or two true bills against each of six boys all under eighteen years of age and five of them but a few months over sixteen years. Burglary and
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grand larceny were the principal charges. In the previous January the police made 244 arrests, of which twenty-eight were of boys under eighteen years of age ; five were arrested on charges amounting to felony. In February 261 arrests were made, of which twenty-five were of boys under eighteen years. In March 264 persons were arrested, thirty-six being boys under eighteen years ; many were cases of felony. There was a general demand that the county should have an industrial school for such delinquents.
In 1880 under the new state constitution the county probate and district courts were merged into the superior courts under three judges. The judges of the old district court had been for several years overworked; it was declared that Judge Crance became blind from overwork on the bench. Litigation had enormously increased. In 1863 there were commenced in the district court 101 actions and in the probate court nineteen new cases. In 1890 there were commenced in the superior court 758 actions and in the probate department 310 new cases.
In 1883 Judge Crane, of the superior court, decided the case of San Leandro vs. E. J. Le Breton, deceased, in favor of the plaintiff, holding that Court square there was the property of the municipality to be used for common or public pur- poses. In 1854 San Leandro was made the county seat. Later in the same year the town proprietors agreed to convey to the county four acres to be used for public buildings and the county authorities selected a tract 1,500 feet distant from Court square. In 1872 when the county seat was removed to Oakland the land donated reverted to the original proprietors. The block known as Court square remained open from 1854 to 1864, when one of the original proprietors built a stable thereon and occupied the land until 1883. In 1872 the town of San Leandro was incorporated. About the year 1871 Theodore Leroy bought of the town proprietors all the unsold lots and lands in the town and paid all taxes thereon; until his death Judge Crane held that the intent of the town proprietors to dedicate Court square for purposes of public buildings was governed by their subsequent acts, and if the dedication was so intended they should have resumed possession in 1856 when they conveyed block 19 to the county, but it remained common, used by all the people thereafter. The fact that the square was left blank and was not divided into lots indicated an intent to devote it to public uses. The imposition of taxes on Court square was a void act. The trustees by such an act could not void the people's right to the square.
In the Oakland city prison in September, 1883, there was a cell full of Chinese criminals and all were confirmed opium subjects. They were deprived of the drug and became desperate and almost insane through the deprivation. Their friends from the outside made desperate efforts to supply them with the drug, throwing opium cake through the bars, carrying it in on platters of rice, etc. Not infre- quently in spite of all efforts, the entire prison would reek with fumes of the drug; on one occasion the officers raided the Chinese cell and caught the inmates smok- ing. They had constructed a pipe out of a soda-water bottle. They had even bored a hole through the bottle, covered the bottle with cloth, collected tallow from their meat, made a wick and lit it. Their "Yen hock" or wire on which the opium was burned was made of a hair pin. The neck of the bottle was the stem of the pipe. The tallow was the lamp. The prison vanished. Dreams of a Chinese Elysium filled the sodden brains of the prisoners. Happiness reigned
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supreme. When the outfit was destroyed they repeated the same act of improvisa- tion within forty-eight hours.
In 1885 there were 26 suicides in Alameda county, 48 accidental deaths, 9 sudden deaths and 6 murders. Received at the county jail 1,359 prisoners, of whom 730 were vagrants.
On November 26, 1886, the suit of the City of Oakland vs. James Dods and his bondsmen for $47,374.06, the amount of his defalcation while acting as city treasurer, came before Judge Hamilton; J. C. Martin, A. A. Moore, W. H. Glascock, J. R. Glascock and Welles Whitmore appeared for the defendants and Judge Yule et al. for plaintiff. The case was dismissed in February, 1889, the city failing wholly and miserably to win. The case had been continued from time to time. A. A. Moore and John G. Glascock represented several of the bonds- men. City Attorney Johnson, assisted by John Yule and Henry Vrooman, prosecuted.
For many years prior to 1886 the attorneys of the county had often dis- cussed the question of forming a local lawyers' association, but no definite steps were taken with that object in view until late in February when it was decided that such an organization was a necessity. Finally a list of lawyers whom it was deemed proper should be members, was prepared and a public meeting was called to complete the organization. The meeting was held at the office of A. A. Moore. A preliminary organization was effected with Mr. Moore as chairman and George E. De Golia, secretary. The following committee was appointed to draft a con- stitution and by-laws: George D. Metcalf, R. M. Fitzgerald, A. M. Rosborough, A. A. Moore and George E. De Golia. It was agreed that each gentleman on the list already prepared, with a few additional names suggested at the meeting, should be declared a charter member of the association as soon as he should sub- scribe to the constitution. The meeting then adjourned for two weeks. The lawyers assembled on the 13th day of March (1886), adopted the constitution and by-laws prepared by the committee and elected the following permanent officers : A. A. Moore, president ; J. C. Martin, vice-president ; George De Golia, secretary ; George D. Metcalf, treasurer; A. M. Rosborough, Welles Whitmore and J. B. Richardson, executive committee and V. H. Metcalf, S. F. Daniels, J. R. Glascock, George W. Reed and F. B. Ogden, committee on admissions. At this time the association had thirty members.
In May, 1886, the Anti-Riparian Irrigation Organization of California was organized in view of the attitude of the supreme court. The organization declared that the right of the people to appropriate water for beneficial purposes was paramount to any alleged rights of riparian owners; that the common law of England did not nor should not rule the property of this state; that the common law rule as to riparian rights did not obtain here; that if necessary an amendment to the constitution would be secured to subordinate riparian rights to irrigation rights ; and that only such officials would be voted for as would support these measures. The Alvarado Club, Oakland Club and West Oakland Club of this organization and scores of individuals of Alameda county joined this movement. It received an immense membership from nearly every county in the state. The point was to have riparian rights not as vested rights.
Early in September, 1888, Judge David S. Terry and his wife, Sarah 'Althea Terry, were brought here and confined in the Alameda county jail by virtue of
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an order made by Justice Field adjudging them guilty of contempt of court in their outbreaks in the courtroom in San Francisco the day before. Clinton Terry, son of Judge Terry, resided in this city. While in jail they received many favors and visits from friends. After a few days R. Porter Ashe, Judge Terry's law partner, brought suit in the superior court of San Francisco, against J. A. Franks, United States marshal, to recover $10,000 damages, for false imprison- ment, the object being to secure Judge Field's deposition as to his statement made in the commitment for contempt that Judge Terry attempted to use a deadly weapon on the marshal. It was twenty-nine years before that on the present site of Oakland Terry killed Broderick in a duel. The letters written by Terry at that time were sent from the house of W. W. Blow on Olive street. Late in September the circuit court denied the petition of David S. Terry to revoke the order committing him to jail for contempt of court.
At a meeting of the Oakland Bar Association in April, 1888, the following ticket was chosen : J .J. Glascock, president ; S. P. Hall, vice president ; George E. De Golia, secretary ; George D. Metcalf, treasurer; W. Whitmore, F. W. Hen- shaw and E. Nusbaumer, executive committee ; V. H. Metcalf, A. A. Moore, R. M. Fitzgerald, F. B. Ogden and Charles Tuttle, committee on membership. In April, 1888, Judges Hamilton and Gibson decided that city justices of the peace had the same jurisdiction as police judges.
In the trial of Benjamin Lichtenstein for murder in July, 1888, the defense was conducted by M. C. Chapman and W. W. Foote. Mr. Chapman's address to' the jury was considered one of the ablest and most brilliant ever delivered in the county. His review of the evidence and conclusions therefrom were masterly in the extreme and was listened to by many of his fellow members of the local bar. He was warmly congratulated on his splendid success. The jury found Mr. Lichtenstein not guilty.
J. M. Estudillo was trustee of the Eckfeldt estate. T. H. Rearden, a superior court judge of San Francisco, was former trustee, was removed by Judge Greene, but reinstated, but then refused to qualify. J. M. Estudillo was appointed in his place. Judge Rearden refused to turn over to Mr. Estudillo all the property of the estate including $32,000 of United States bonds and was cited to appear in court. He could not produce the bonds; he did not have them. His friends agreed to raise $10,000 and give their notes for the balance.
The lawyers in 1884 were: A. A. Moore, Judge E. Nusbaumer, M. C. Chap- man, H. F. Crane, George W. Reed, T. D. Carmeal, J. A. Johnson, city attorney, E. C. Robison, S. B. McKee, C. G. Dodge, R. M. Fitzgerald, J. E. McElrath, Judge F. B. Ogden, L. A. Church, A. M. Rosborough, G. M. Shaw, J. H. Smith, J. K. Piersol, H. A. Luttrell, Victor H. Metcalf, Judge F. W. Henshaw, Welles Whitmore, J. B. Richardson, E. B. Pomroy, A. W. Bishop, C. L. Colvin, Max Marcuse, Hiram P. Brown, Guy C. Earl, William L. Hill, John Ellsworth of Alameda. F. W. Fry, Fred L. Button, Thomas H. Smith, Rhodes Borden, Cary Howard, T. A. Huxley, of Irvington, Fred E. Whitney, J. Burris, Edward K. Taylor, Frederick S. Stratton, E. O. Crosby, of Alameda, George W. Tyler, L. S. Church, Thomas Scott, Judge E. M. Hibson, Samuel P. Hall, district attorney.
An important case in 1888 was the suit of the Spring Valley Water Works against Edward Clark and the Union Savings Bank to condemn land on Alameda creek for water rights. The defendant claimed that while it was true that the old
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Vallejo mill had thus diverted a portion of the water, it was only temporarily to run the mill and was then returned to the stream.
In March, 1888, the judges of the superior court adopted new rules of court procedure and they were put into effect at once. In October, 1888, the county board accepted the advice of District Attorney Hall to compromise the case of Rhoda vs. Alameda county, which had been pending since 1875, for $3,000 and costs. The suit was for $5,000 damages for removing the iron vault from the old brick building at San Leandro when the county seat was removed to Brooklyn.
An important suit over several alternate sections of land in the southwest corner of Murray township was decided in favor of the preemptor late in 1888. William J. Field brought suit against the Central Pacific Railroad Company. It was shown that though Field sold the tract in 1861, yet as it was at that time uncertain whether it was public land or a part of a private Mexican grant, the sale was coupled with the understanding that if the tract ever became public land of the United States, Field should have the right to return to it and claim it under the preemption laws. Having done so as soon as the land was freed from the claim of El Sobrante in 1883 the sale did not deprive Field of his right of preemption to it. The case was decided by Assistant Secretary of the Interior Muldrow.
In January. 1889, J. C. Martin and A. A. Moore formed a partnership under the name of Martin & Moore. George W. Reed became district attorney and withdrew from his partnership with Mr. Moore and united with Mr. Nusbaumer under the name of Reed & Nusbaumer. Noble Hamilton was appointed judge of the superior court by Gov. G. C. Perkins and served with distinction until he was superseded by John Ellsworth in January, 1889. As judge he was industrious, faithful and his decisions were rarely reversed. He possessed the confidence, good will and respect of the local bar. He resumed active practice.
The case of the United States vs. Henry Curtner et al., was decided in the circuit court in February, 1889, in favor of the Central Pacific Railroad. The suit was brought by the United States at the request of the Secretary of the Interior to obtain a decree annulling the protests on 2,867 acres which land was originally granted to the Central Pacific Railroad Company from 1871 to 1873, but which was transferred by the land commissioner to California which in time had sold it to the defendants. The land was in Livermore valley and the following persons were affected: ] Henry Curtner, Samuel Davis, Samuel B. Martin, J. West Martin, W. D. English, John R. Deardorff, Anna T. Taylor, E. S. Wensinger, John O'Harra, Rasmus Bjoen, H. F. Crane, Thomas Newell, Le Grand Morehouse, A. S. Barron, James Barron, Bank of California, Franz Leberer, Patrick Armstrong, Garrison Gerst, C. G. Johnson, Sr., Anthony Thomp- son, R. S. Carstenson, Francis Schwier, John Hinkle, T. W. Moore and others. The point decided was that the listing of this land to the state was a mistake and without legal authority.
In April the judges of the superior court sitting in bank listened to the memorial upon the late Henry Vrooman presented by J. C. Martin, William R. Davis and George E. De Golia, the committee representing the county bar association. Eulogiums were delivered by Messrs. Martin, Davis, De Golia, Gib- son, Ellsworth and Green. The proceedings were spread on the court records. J. E. McElrath endeavored to establish a law library in this city. He proposed
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that all lawyers in the city should donate their law books except codes and reports to be used as a nucleus for such a library.
The California Bar Association was organized in July at San Francisco with Judge T. P. Stoney as president ; in less than a year it had a membership of 340. As stated it was organized for the purpose of securing judicial reform. Much dissatisfaction had been expressed regarding the inconsistencies both in the enactments and in the procedure. The decisions of the supreme court lacked harmony and the uncertainty connected with any legal step became unbearable. Many lawyers of Alameda county joined this association. This year suit was brought on the relation of Edson Adams to test the validity of the proceedings by which the recent annexation of territory was made to Oakland. City attorney, Johnson, W. R. Davis and Olney, Chickering and Thomas defended on the part of the city.
In May, a special committee of the Oakland Bar Association consisting of J. C. Martin, A. A. Moore, G. D. Metcalf, F. E. Whitney and J. R. Glascock pre- pared an address to Governor Waterman urging the appointment of Judge W. E. Greene of Oakland as successor to Jackson Temple on the supreme bench. The address was long and highly complimentary and said among other strong state- ments : "With a mind at once virile and judicial he unites a comprehensive knowl- edge of law and a sound judgment of human nature and its springs of action which , eminently fit him for a judicial office. We have found him quick to comprehend, acute and logical in analysis, tireless in investigation and accurate and just in judgment. He is not a case lawyer, but a student of principles and is absolutely fearless and impartial in the discharge of his official duties."
Late in June, Governor Waterman appointed Charles N. Fox of Oakland an associate justice of the supreme court to fill the Temple vacancy. He had become prominent and powerful in the practice here. He defended Prindle charged with the murder of Doctor Buck and secured his acquittal. Doctor Bowers was defended by him here and before the supreme court. He came to Oakland in 1875, served on the board of education, was sent to the Legislature.
The suit of Henry Pierce against the Spring Valley Water Works was settled in the fall of 1889, the company compromising by paying the plaintiff a considerable sum of money to drop the case. The company had diverted the water of Alameda creek. Many suits hinged on this settlement. The grand jury in December made a long report which was sharply criticised by Judge Ellsworth in open court. He stated that they had exceeded their authority in casting innuendoes of wrong doing upon many office holders and others.
The case of Edson F. Adams vs. the City of Oakland concerning the valid- ity of the annexation of the territory north of Lake Merritt came up for trial in December, 1890. Judges Ellsworth and Greene rendered a decision against the defendant. They held that the annexed territory comprising the greater parts of Adams Point, Vernon Heights and other tracts north of the lake were not a part of the city, because the act of 1883 under which the annexation proceed- ings were held was unconstitutional so far as it attempted to provide for annexa- tion of territory to a city because it did not provide for the exercise of the elective franchise by residents of the annexed territory. This decision upset all the calculations of the city council and the friends of annexation. Taxes had already been collected from many in the annexed territory and generally
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the city's sovereignty had been extended over the residents there. But the city took immediate measures to remedy the trouble.
By 1890 the legal and judicial business of the county had grown into a vast system. As the social and commercial system became larger, more varied and more complex, it became necessary for clients to employ the best talent both on the bench and at the bar.
In 1891 William Walkerley died in East Oakland leaving an estate valued at $650,000. He left a young widow to whom was born a son shortly after her husband's death. A considerable portion of the property was in this county. In court the claims against the estate were numerous. The following lawyers were present representing the various claimants: Martin, Williams, Hamilton, Sullivan, Ach, Plunkett, Bartlett, Olney, Bacon, Huxley, Coogan, Uhoon, Belcher, Nusbaumer and Firebaugh. The widow asked for an increased monthly allow- ance from $420 to $833. An important case in 1891 was that of J. B. Marvin against F. D. Black to dissolve their partnership in the Piedmont Hotel and receive an accounting. It was tried before Judge Ellsworth and was bitterly contested on both sides. Mr. Galpin was attorney for Marvin and Mr. Fitzgerald for Black. The case was settled by the withdrawal of Black upon the payment to him of a sum of money.
In May, 1891, the county board appointed Robert M. Fitzgerald trustee of the county public law library required to be formed under a recent law. Man- damus proceedings against the county board in the matter of creating sanitary district No. I were withdrawn in September, 1891, and all the proceedings were accordingly set aside. Lorin had objected to the provisions in the petition. The boundary of the proposed district was very irregular but included the ter- ritory between the southern line of Berkeley and a line twenty feet south of Temescal creek and the bay on the west and Claremont avenue on the east.
In October the county board appropriated $1,250 for new books for the law library. Late in December, 1891, the supreme court affirmed the decision of the superior court of Alameda county in declaring the first annexation election raid. This was the suit of the people on the relation of Edson Adams vs. the City of Oakland. The plaintiff claimed that the city was illegally exercising municipal power and jurisdiction over territory not within its corporate limits. It was claimed that this suit was brought, not because the Adams estate had any grievance to remedy, but to test the validity of the annexation proceedings.
Late in 1892 two additional judges for the superior court were demanded by the attorneys of the county. A petition for such a change was prepared to be presented to the Legislature and was signed by nearly every lawyer in the county, as follows: J. E. McElrath, E. C. Chapman, Langan & Langan, E. C. Robinson, E. H. Shaw, F. E. Whitney, E. M. Gibson, S. B. McKee, Melvin Chapman, T. M. Bradley, J. H. Smith, S. F. Daniels, J. K. Piersol. John M. Poston, F. L. Button, H. A. Luttrell, W. J. Donovan, Metcalf & Metcalf, Dodge & Fry, E. A. Holman, G. M. Shaw, C. E. Snook, G. W. Reed, A. L. Frick, Rob- ert Edgar, T. C. Huxby, E. K. Taylor, D. M. Conner, C. L. Colvin, J. C. Plun- kett, R. M. Fitzgerald, C. H. Abbott, Frank J. Keauth, B. M. McFadden, J. B. Richardson, J. J. Allen, C. F. Craddock, F. B. Ogden. W. J. Robinson, Hall & Earl, C. J. Johns, R. B. Myers, Henry Miller, Max Marcuse, Fred V. Wood, F. W. Sawyer, E. J. Rodgers, S. G. Nye, E. Nusbaumer, T. F. Graber, A. M.
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Rosborough, A. A. Moore, W. D. Foote, John Yule, F. L. Krause, John R. Glascock, R. L. McKee, Cary Howard, J. W. Ward, E. H. Stearns, J. H. Brewer, Welles Whitmore, R. E. Hewlett, P. F. Benson, J. C. Martin, G. E. De Golia, H. B. M. Miller, J. A. Johnson, L. S. Church, H. A. Melvin, F. J. Brearty, R. B. Tappan, W. F. Aram, E. O. Crosby, F. C. Clift, H. F. Crane, A. W. Bishop and C. J. H. Palmer.
In February, 1893, Governor Markham appointed Frank B. Ogden a judge of the superior court of Alameda county to preside over the new court created at this time. The county law library was closed to the public and to many of the lawyers who were taxed one dollar for each case filed by them. There were so many rules and regulations that the lawyers expostulated and declared that the library was of little or no use to them. It was managed by a board of trus- tees and was opened every week day from 9 o'clock to 5 o'clock."
Late in May, 1895, the four superior judges sitting in bank decided that the legislative authority of the city had the power to call an election for the pur- pose of submitting proposed charter amendments to the qualified voters. The new board of public works was thus sustained in its proceedings. This decision legalized the amendments to the city charter.
The banquet at the Athenian Club in November, 1905, given in honor of Judge T. W. Harris was attended by about forty members of the county bar, among whom were F. B. Ogden, James G. Quinn, J. E. McElroy, G. Nusbaumer, E. S. Page, G. W. Reed, E. C. Robinson, H. S. Robinson, C. E. Snook, J. W. Stetson, George Samuels, Mortimer Smith, E. E. Trefethen, W. H. Waste, L. S. Church, J. J. Allen, F. L. Button, E. J. Brown, Percy Black, J. J. Burke, T. D. Cornell, M. C. Chapman, Clarence Crowell, George E. De Golia, John De Lancey, R. M. Fitzgerald, J. R. Glascock, B. H. Griffins, S. P. Hall, W. H. L. Hynes, T. W. Harris, J. R. Jones, H. Johnson, G. C. Earl, E. M. Gibson, Ben- jamin Woolner, G. Russ Lukens, E. W. Eugs, Hermon Bell, R. C. Staats, P. M. Walsh, G. W. Langan, H. A. Melvin, D. F. McWade, Stanley Moore, P. J. Crosby, W. H. Donahue and E. G. Ryker. Speeches were made by Messrs. Chapman, Harris, Ogden, Melvin, Hall, Glascock, Fitzgerald, Moore, Lukens, Snook, Earl and Nusbaumer. George Reed, president of the county bar asso- ciation, was chairman of this meeting.
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