City of San Francisco v. Canavan
42 Cal. 541
Cal.
1872
Check Treatment
By the Court, Crockett, J.:

The only question which we are called upon to consider in these cases is, whether in enacting the Act of April 4th, 1870 (Stats. 1869-70, p. 738), providing for the erection of a City Hall in the City of San Francisco, the Legislature exceeded its constitutional power. The Act authorizes the Governor to appoint three Commissioners to superintend the work of erecting a City Hall, and directs them to take possession of all that certain tract of land belonging to said city and county, and known as Yerba Buena Park, to grade it to the official grade of the surrounding streets, and directs how the work shall be let and paid for. It also directs that a portion of Yerba Buena Park be subdivided into lots and subdivisions, and provides for the manner of doing it, and that, after the land is laid out, the Commissioners shall immediately proceed to sell, at public auction, the lots and subdivisions in such manner as will bring the largest sum or price possible, and directs the mode of doing it, and that, upon payment of the purchase pri ce and interest, as therein provided, the Commissioners are to execute deeds, in the name of the City and County of San Francisco, to the purchasers, and that these deeds shall be prima facie evidence *551of the regularity of the proceedings, * * * and shall be evidence of the title and right of possession in the grantees, upon which actions for the recovery of real property, or injuries thereto, may be maintained and defended in all the Courts of this State. It is then provided, that all moneys received from sales of the lots shall be paid into the City Treasury, there to constitute a fund to be known as City Hall Fund, and not to be drawn out or used except as provided in the Act. Provision is then made for the erection of a City Hall, at a cost not exceeding one and a half millions of dollars, on that portion of the land not sold, and for the manner in which warrants are to be drawn on the City Treasury, as funds are needed for the prosecution of the work. If vacancies should occur in the Commission, they are to be temporarily filled by the Board of Supervisors until the next meeting of the Legislature, when the vacancies shall be permanently filled. On the completion of the work, the Commissioners are to make a report and render an account to the Board of Supervisors; and if any surplus remains of the City Hall Fund, one hundred thousand dollars thereof, if there be so much, shall be placed to the credit of the School Department Fund of the city, to be used for the erection of a normal school building in the city. These actions are brought for the purpose of enjoining the Commissioners from proceeding with the work, on the ground that the Act of the Legislature is unconstitutional and void. The plaintiffs applied for a temporary injunction, which was denied, and they appeal from the order denying it. The Act is alleged to be unconstitutional on the ground—first, that Yerba Buena Park was dedicated to the public as a public park, and that the Legislature has no power to divert it to any other use; second, that it is the property of the City and County of San Francisco, as a municipal corporation, in its capacity of a proprietor of lands, and is as much protected by the Constitution from invasion by the Legisla*552ture as the property of a private individual; third, that the Constitution provides for the formation of counties, cities, incorporated villages and towns, as subdivisions of the State Government, with the intention that they should exercise all the powers of local self-government which usually pertain to municipal corporations; and whilst it is conceded that the Legislature may create, modify, or abolish these corporations, and may direct the mode and manner in which they shall exercise their powers, or may limit the extent of their powers, it is denied that the Legislature can itself usurp their functions or interfere with their proprietary rights as owners of lands. In discussing the first point, it is necessary to ascertain, primarily, whether or not the land has been dedicated to the public as a park. It appears that up to the time of the passage of the Act, this land had been used as a public burying ground, and had never at any time been used as a public park. On the contrary, since the Commissioners commenced the work of grading the land, very many dead bodies had to be removed and buried elsewhere. So far, therefore, as an acceptance of the dedication by the public might be inferred, from a public use of the ground as a park, there is no proof in the record of such an acceptance. But it is claimed that there was an express dedication, by ordinance by the proper city authorities, and that if an acceptance by the public was necdssary, there has been such an -acceptance by reason of the appropriation of large sums of money out of the City Treasury, under the authority of the Legislature, for the purpose of removing the dead bodies from the ground, in order to prepare it for use-as a public park. The ordinance referred to is in the following words: “ The Mayor is authorized and empowered to take possession of the lot or parcel of ground, in the City and County of San Francisco, situated between Market, McAllister, and Larkin streets, and keep possession thereof for and in the name of the City and County of San Fran*553cisco; and that the said land be, and the same shall be, known as Yerba Buena Park. That the same shall hereafter be known and designated as a public park, to be held and used for public and municipal purposes, and the same shall be, and is hereby dedicated to public uses as a public park or plaza; provided, that nothing contained in the said order shall prevent the said city and county from devoting the said land, at any time, to any public purpose, either State or municipal.” It is one of the essential elements of a good dedication, that it shall be irrevocable, and that the land shall be forever dedicated to the public use which is designated, provided the public see fit to use it for that purpose. If a private person should, by deed, attempt to dedicate a parcel of land to public use, as a highway, street, park, or for any other public use whatsoever, and should, in the same deed, reserve the right, at his pleasure, to revoke the dedication, and to devote the land to any other use he might see proper, this would be no dedication. (Irwin v. Dixon et al., 9 How. U. S. R. 30, and cases cited; Washburne on Easements, 139; State v. Trask, 6 Vermont, 335; N. O. v. U. S., 10 Pet. 622; Commonwealth v. Alburger, 1 Whart. 469; Huber v. Gazley, 18 Ohio, 18; Missouri Ins. v. Horr, 27 Mo. 211.) The proviso in the ordinance, reserving to the city and county the right to devote the land, at any time, to any other public use, State or municipal, defeats the alleged dedication of the grounds as a public park, so far as a dedication is supposed to result from the ordinance itself. But if there had been no reservation in the ordinance* it would not, proprio vigore, have operated as a dedication of the land until the dedication had been accepted by the public. Until accepted, the dedication, whether made by deed or otherwise, may be revoked by the owner of the land. To constitute a valid and complete dedication, two things *554must occur, to wit: an intention by the owner, clearly indicated by his words or acts, to dedicate the land to public use, and an acceptance by the public of the dedication. This acceptance is generally established by the use by the public of the land for the purpose to which it had been dedicated. These propositions are thoroughly established by a long line of decisions, and it will only be necessary to refer to the following: San Francisco v. Calderwood, 31 Cal. 580; Washburne on Easements, 132; Harding v. Jasper, 14 Cal. 647; Child v. Chappel, 9 N. Y. Reports, 257; Washburne on Easements, 239, 140. This use must be of such duration that the public interest and private rights would be materially impaired if the dedication were revoked, and the use by the public discontinued. (Cincinnati v. White, 6 Peters, 431, 439; 2 Smith’s Leading Cases, 182, and cases cited.) In order to establish the dedication, the plaintiff also produced what is known as the Van Hess Ordinance Map. But the Van Hess Ordinance relates only to lands lying west of Larkin street, and on the map made in pursuance of the ordinance, this land is marked only by a cross, to indicate its use as a cemetery. This map, therefore, did not tend to prove the dedication as a public park. My conclusion on this branch of the case is, that the land has not been dedicated to the public use as a park. I do not understand counsel to claim that it was dedicated as a public cemetery; but if it had been so dedicated, it had practically ceased to be used as such, through the action of the city authorities, before the passage of the Act; and I presume it will not be contended that it was not competent for the Board of Supervisors, as a police regulation merely, to prohibit the use, as a public burying ground, of a parcel of land situate nearly in the heart of a large and growing city.

In discussing the second ground on which the Act is alleged to be unconstitutional it becomes material to inquire into the tenure by which the title to this land was acquired *555and is now held by the city and county. It is conceded to be a portion of what are known as the pueblo lands held by the City and County of San Francisco, as the successor of the former Mexican Pueblo of Yerba Buena. The nature of this title has been so often discussed and repeatedly adjudicated by this Court that it would now be a work of supererogation to undertake anew a critical analysis of. it. It will be sufficient to state generally that it has been established by these decisions too firmly to be shaken or overthrown at this late day that neither the former pueblo, nor the city and county, as its successor, ever held an indefeasible proprietary interest in these lands. On the contrary, they were and are held only in trust for certain municipal purposes. Under the Mexican system, while the pueblo might dispose of the lands or use them in pursuance of the trust on which they were held, they were nevertheless subject to the disposition of the Governor without the consent of the municipal authorities. On the change of Government what had before been known as the Pueblo of Yerba Buena was incorporated as the City of San Francisco, and afterwards as the City and County of San Francisco. As the successor of the former pueblo the city presented to the Board of United States Land Commissioners its claim for a confirmation of its title to these lands. These proceedings resulted in a final decree of confirmation by the Circuit Court of the United States (to which Court the case had been transferred), by which decree the trust on which the lands were held is distinctly .recognized. Subsequently the Congress of the United States, by two special Acts, released the fee of the land to the City and County of San Francisco; but upon the trusts already referred to. Whilst the Mexican Government exercised dominion over this territory, it had the power to direct how the trust should be executed by the pueblo, and to enlarge or limit its power in respect to the disposition of these lands; and when California was erected into a State of the Amer*556ican Union, it succeeded to the power which the Government of Mexico had'before exercised over its municipalities, in respect to the control and disposal of the pueblo lands so soon as the title of the pueblo, or its successor, and the nature of the trust on which the lands were held, should be recognized and ascertained by the proper tribunals of the United States created for that purpose. This has been done. The title has been recognized and the trust declared, not only by the Courts of the United States, to whom the subject was referred, but also by special Acts of Congress, as already stated. Acting upon its power to control and enforce this trust, the Legislature, as early as the year 1851, directed certain of these lands to be conveyed to several persons as Commissioners of the Funded Debt of the City of San Francisco, with power in the Commissioners to sell and convey said lands, and out of the proceeds to pay off the funded debt of said city. Numerous sales were made by these Commissioners, and the titles conveyed by them have been repeatedly recognized by this Court as valid. We have also decided, and it is now perfectly well settled in this State, that the City of San Francisco had no such proprietary interest in these lands as was subject to levy and forced sale on execution; that the tenure by which the lands were held was of a fiduciary nature, and could not be alienated except in accordance with the trust, and it was for the Legislature to decide how the trust should be performed. In support of these propositions, I refer to the following authorities: Hart v. Burnett, 15 Cal. 568, 573, et passim; Payne v. Tread-well, 16 id. 220; Brown v. San Francisco, id. 457; City and County of San Francisco v. Beideman, 17 id. 461; Leese v. Clark, 18 id. 573; Brenham et al. v. Mayor of San Jose, 24 id. 602; Greeley v. Townsend et al., 25 id. 610; Redding v. White, 27 id. 285; Grogan v. San Francisco, 18 id. 614; Stein-back v. Moore, 30 id. 506; Board of Education v. Fowler, 19 id. 20; Fulton v. Hanlon, 20 id. 480, et seq.; White v. Moses, *55721 id. 41; Carleton v. Townsend, 28 id. 223; Holliday v. Frisbie, 15 id. 635; Townsend v. Greeley, 5 Wallace, U. S. R. 326; Townsend v. Burbank, id. 337; Seale v. Doane, 17 id. 484; Kissling v. Shaw, 23 id. 445; Hubbard v. Sullivan, 18 id. 525; McCracken v. San Francisco, 16 id. 621; People v. Coon, 25 Cal. 649; People v. San Francisco, 36 id. 601; San Francisco v. Calderwood, 31 id. 588; People v. Doe, 36 id. 222. These authorities conclusively establish that the tenure by which these lands are held is wholly different from that by which lands acquired by a municipality by gift or purchase are ordinarily held; and whatever may be the extent of the legislative power over the latter class of lands, there can be no doubt, I think, that in respect to pueblo lands it is competent for the Legislature to control and direct how they shall be managed and controlled, or disposed of by the municipal corporation.

The last proposition urged by the appellants is, that, inasmuch as the Constitution provides for the organization of county, city, and town governments for the administration of their local affairs, the necessary implication is, that it was intended to prohibit the Legislature from usurping the functions of these municipal bodies by taking upon itself, through its constituted agents, against the will and without the consent of the municipal authorities, the performance of duties which pertain only to the municipal body itself. In support of this argument it is said that the erection of a City Hall is a purely local improvement, and that it was for the city and county to determine for itself whether it needed such an improvement, and if so, when and how it should be made, and at what cost, and how the expense should be defrayed. But it is well settled, in this State at least, that municipal corporations are but subordinate subdivisions of the State Government, which may be created, altered, or abolished, at the will of the Legislature, which may enlarge or restrict their powers, direct the mode and manner of their exercise, *558and may define what acts they may or may not perform, subject, however, to the limitation that the Legislature cannot direct the performance of an act which will impair the obligation of a contract. On the theory of the appellants it would be difficult, if not impracticable, to define the line at which the power of the Legislature to interfere in the affairs of a municipal corporation would terminate. We have already decided that it may compel the corporation to reduce the grade of a street, and may prescribe the details for letting out the contract, etc. (People ex rel. Ferguson v. San Francisco, 36 Cal. 595, 601.)

In Payne v. Treadwell, 16 Cal. 233, this Court says: “The principle of the numerous cases cited is, that a municipal corporation is a public institution, created for public purposes; that the municipality is a political subdivision or department of the State, governed and regulated and constituted by public law; that the agents who administer its affairs derive their power from the Legislature, and can only act in obedience to legislative authority; that the original power- to control, as well as to create them, therefore, is in the Legislature, and that the Legislature can as well immediately direct the use and disposition of the public property, as a general rule, as it can mediately do this by appointing or providing for the appointment of agents, or giving authority for that purpose; in other words, what the Legislature can authorize to be done, it can itself do. The agents of the corporation can sell or dispose of the property of the corporation only in the way and according to the order of the Legislature; and, therefore, the Legislature may, by law operating immediately upon the subject, dispose of.this property, or give effect to any previous disposition or attempted disposition of it. The property itself is a trust, and the Legislature is the prime and original controlling power, managing and directing the use, disposition, and direction of it. Otherwise the solecism would appear of a derivative *559power higher in degree and different in kind from the source of its derivation.” In Hart v. Burnett, 15 Cal. 568-573, et passim, the same views substantially, if not directly expressed, were distinctly intimated. These decisions have been too long acquiesced in to be now overthrown; and so many valuable property rights have, doubtless, been acquired on the faith of them, that disastrous consequences would ensue if a different rule was now established. In my opinion the Act in question is not unconstitutional, and the application for an injunction was properly denied.

Order affirmed.