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that the franchise which it assessed was the franchise granted by respondent, and that its assessment was not, therefore, the assessment of a federal franchise, and whether or not this is so is the question to be determined on this appeal.

On the 20th day of February, 1892, the trustees of respon lent passed a certain ordinance designated as "ordinance No. 69," which was to take effect only upon the filing hy appellant with the clerk of the city a written acceptance of such ordinance. The respondent contends, and the court found, that by said ordinance a franchise was granted to appellant, and it is contended and found that the franchise assessed by respondent is the franchise which is a verred to have been created by said ordinance. If that ordinance did not create a franchise then the attempted assessment was on something which had no existence. This case, therefore, differs from Western Union Telegraph Co. v. County of San Joaquin, 141 Cal. 261, 74 Pac. 850, because in that case it did not appear from the pleadings that the plaintiff there did not have some franchise from the city of Stockton different and in addition to its federal franchise. The appellant had erected and was using its lines of poles and wires through what were afterWards streets of the city of Visalia before said city was incorporated; and has ever since used the same line. The said ordinance Yo. 69, passed February 20, 18992, with its il('ceptance by appellant is as follows:

Section 1. Be it ordained by the city council of the city of Visalia, state of California, that the Western Union Telegraph Company, its successors and assigns, are authorized to erect and maintain on the streets, alleys and public ways of said city the poles und fixtures and wires necessary for the purpose of supplying the citizens of said city and the public communication by telegraph, or other improved electrical device such use to be and continue upon the terms and conditions hereinafter stated.

“Sec, 2. The location of the poles and lines now in use is hereby approved, subject to the provisions of this ordinance, and provided the same shall be made to conform with the requirements of this ordinance and the location of all poles and lines now in use, or extensions thereof, shall be under the direction and control of the city council of the said city.

"Sec. 3. Said poles and wires shall be placed and maintained so as not to interfere with travel on said highways, and said company shall hold said.city free and harmless from all damages arising by reason of any abuse of said occupancy. This grant is made, and is to be enjoyed, subject to such reasonable regulations and ordinances of a public nature as said city council of said city is authorized and sees proper at any time to adopt not destructive to the rights herein granted.

"Sec. 4. The right of use herein given shall not be exclusive and the city council of said

city reserves the power to grant a like right of way to any other telegraph company; the same however, not to interfere with the reasonable and proper exercise of the privileges herein granted.

"Sec. 5. In consideration whereof, said Western Union Telegraph Company shall, and by the acceptance of this ordinance does, agree to allow the city council of said city to attach at any time to the top crossarm of any of said poles, where practicable, the city fire alarm and police wires, and said poles are hereby made a municipal instrumentality for that purpose; provided, however, said attachment shall be so made as not to interfere with said company's use, and said attachment shall be made and maintained under the direction of said company's manager in said city of Visalia.

“The said company shall and will furnish for the said city the use of its poles for the attachment thereto of its fire alarm boxes, without charge to said city.

"Sec. 6. This ordinance shall take effect on and after its passage and the filing by said company of unconditional acceptance thereof in the office of the clerk of said city of Visalia, and shall be published in one issue of the Tulare County Times, a newspaper printed and published in said city of Visalia.

"Sec. 7. That whenever said company ceases to operate a telegraph line in said city of Visalia and ceases to use the said poles and lines herein provided for in the operation of its line of telegraph then said company shall remove said lines and poles from the streets and alleys of said city within sixty days from date that said company so ceases to use and operate said lines.

“Sec. 8. This grant is made on condition that all poles used by said Western Union Telegraph Company within the city limits shall be of the uniform height of twenty-six feet above the surface of the ground, and shall be maintained at such height, without any splicing, relative to the sidewalks of said city as the common council may desig. nate.

“Sec. 9. All ordinances and parts of ordinances, orders and resolutions upon the subject of telegraph poles, wires, etc., of previous date, in so far as the same relates to the Western Union Telegraph Company, are hereby repealed and annulled.”

"San Francisco, Cal., Feb. 20, 1892. To his Honor, the Mayor, and the Honorable City Council, Visalia, Cal. - Gentlemen: The Western Union Telegraph hereby accepts your ordinance No. 69, passed the 10th day of February, 1892, and files hereby this its unconditional acceptance thereof, in the office of your city clerk. Very respectfully, The Western Union Telegraph Company, by Frank Jaynes, Supt."

The court found that, prior to the passage of this ordinance, “the plaintiff applied to defendant herein the city of Visalia for the

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privilege and franchise of constructing, main-, merely that, in the opinion of the court, the taining, and operating plaintiff's telegraph | ordinance 69 did, in law, create a franchise, lines, poles, and structures in the streets, and that, therefore, plaintiff can be said to alleys, and public ways or said city of Visal- have applied for a franchise. And, construia," and that said ordinance was passed in ing it in that sense, the case can now be pursuance of such application, and that "said here decided on its merits, without the neordinance and franchise were duly accepted cessity of ordering a new trial upon a point in writing by plaintiff.” If this can be con- that would only cause delay. The real quesstrued to mean literally that plaintiff really tion therefore, is, as before stated, does the applied for a franchise, eo nomine, to con- ordinance 69 create a "franchise?" and, in struct and operate a telegraph line through our opinion, it does not. If it can be conthe streets of the city, then it would have strued as an attempted granting or an origino support in the evidence, and the judgment nal franchise to operate a telegraph line would have to be reversed for that reason.

through the streets of the city, it would be The word "franchise" is not used in the merely an empty form of granting what the ordinance, and there is no pretense in it of plaintiff already had and of which the city the granting of a right to "operate" the could not deprive it. The plaintiff had that telegraph line. The only evidence on the right not only from the act of Congress subject is the testimony of plaintiff's su

above referred to but also from section 536 perintendent, H. H. Lamb. He said: "I ain of our Civil Code, which provides that “teleacquainted with the franchises of the West-graph corporations may construct lines of ern Union Telegraph Company on the Pacific telegraph along and upon any public road or Coast. The matter of the application for a highway.” But we do not think that the franchise, if any were made, would be a part ordinance purports to grant any "franchise." of my duties. We have no franchise in the While the appellate had the right, of whicn city of Visalia granted by the city of Visalia the city could not deprive it, to construct and or the county of Tulare for any purpose." operate its lines along the streets of the city, On cross-examination he was asked: “Now, nevertheless it could not maintain its poles Mr. Lamb, at any time prior to the month of and wires in such a manner as to unreasonFebruary, 1892, did not the Western Union ably obstruct and interfere with ordinary Telegraph Company, through you, make an travel, and the city had the authority, under application to the city of Visalia for a fran- its police power, to so regulate the manner chise to erect its poles along the city streets

of plaintiff's placing and maintaining its of Visalia and to string its wires thereou?" poles and wires as to prevent unreasonable and to this question he answered as follows:

obstruction of travel. And we think that "I do not understand that that application

the ordinance in question was not intended was made, as it was well understood by this

to be anything more, and is nothing more, company that the act of Congress of 1866

than the exercise of this authority to regu. gave the Western Union Telegraph Company

late. But such regulation is not the grantthe franchise to erect its telegraph lines and

ing of a franchise; it is a restriction of and operate them over all portions of the public

burden upon a franchise already existing; domain, over all post routes; and also that

it is not an original and affirmative granting the state of California gave to all telegraph of anything in the nature of a franchise. companies similar authority. The application

Indeed, the ordinance and its acceptance by that was made to the city of Visalia was

plaintiff-Which acceptance was necessary to in the nature of a police regulation in order

give it any effect-was in the nature of a to settle the question as to the location of

contract between the parties. The plainour poles, the height of wires above ground,

tiff's poles and wires were still in the same

place in which they had been for many years, etc., in order to prevent the lines which we erected in the streets from being subsequently

and, by the ordinance, the city agreed in disturbed by some whim of a street official.

writing that the poles and wires as they then Q. Now, in pursuance of that application,

stood were in a proper place and might reMr. Lamb, there was an ordinance passed

main there if plaintiff would agree to allow by the board of trustees on February, 1892,

the city to use them for certain purposes, and which granted to your company some rights

plaintiff, by accepting the ordinance,

agreed. Such was evidently the purpose of in the streets, was there not? A. There was

the ordinance, and we do not see in it the an ordinance passed which prescribed that

creation of anything in the nature of a frak: the location of the poles and wires then erected was approved. Q. It is the same or

chise. Therefore the assessment was for an

asserted franchise which had no existence. dinance that has been set forth here in the

The judgment is reversed, with directions complaint and statement of fact? A. Yes,

to the court below to render judgment as sir.”

prayed for in its complaint. In the face of this evidence we do not think that the court intended to find that the plain

I concur: LORIGAN, J. tiff applied for what it called or understood to be a "franchise." We think that the find- SHAW, J. I concur. I think, however, that ing can be, and should be, construed to mean the ordinance in question was intended to

87 P.-65

so

grant a certain right to use a portion of the board of park commissioners of that city, to

a public streets, and that, as it purports to be restrain them from erecting a public library à grant by public authority of a right to on a tract of land owned by said city of Los the use of public property, it does purport to Angeles bounded by Fifth, Hill, Sixth and grant a franchise. The fact that it also Olive streets in that city, and known as "Cenregulates the manner of the use does not tral Park,” on the ground that the city, as change its character in this respect. But, owner of said property, had dedicated it to in so far as it purports to grant such right, the use of the public for park purposes, and it merely attempts to give the plaintiff that that such purpose would not permit erection which it already had, and was of no legal therein of a public library building. The Ceneffect whatever. The assessment, being spe- tral Park in question is 600 by 330 feet in cifically upon that so-called franchise, was size, and it was proposed by the municipal upon a thing which had no real existence and authorities to use a space in the center therewhich could not have any value. It was, of, 100 by 150 feet, upon which to erect a pubtherefore, necessarily void, and its collection lic library. The trial court found that the in the manner here attempted should be en- land in question had been set apart and dedijoined

cated by the city authorities of Los Angeles

for the use of the public as a public park, and We concur: BEATTY, C. J.; ANGEL- that its official name was "Central Park," and, LOTTI, J.; SLOSS, J.

that ever since December 11, 1866, it had been maintained and used by the people of

the city of Los Angeles exclusively as a park. (150 Cal. 64)

Judgment was rendered for the plaintiff in SPIRES v. CITY OF LOS ANGELES et al. accordance with the prayer of the complaint, (L. A. 1857.)

and the defendants appeal to this court there(Supreme Court of California. Oct. 11, 1906.) from. The appeal is from the judgment, ac1. DEDICATION-CITY PARK-USE OF PROP

companied by a bill of exceptions. ERTY.

The sole points presented on this appeal are The erection by a city on a square dedi- whether, first, the block in question was ever cated by it as “a public place forever for the enjoyment of the community in general,” of a

dedicated by the city of Los Angeles as a pubpublic library for the use of the same public, lic park, or secondly, if it was so dedicated, is not only not inconsistent with the purpose would the erection therein of a public library for which the park was dedicated, but is in

be foreign to the purposes for which said aid and furtherance of its enjoyment by the public; but the building can be used for strictly

tract was dedicated, inconsistent with its use library purposes only; so that, while rooms by the public, and an invasion of public right. therein may be provided as a meeting place for Much of the evidence in the case was adthe board of library directors, they cannot be provided for the board of education.

dressed to the first proposition, whether there 2. APPEAL-ISSUES NOT RAISED BELOW.

was in fact a dedication by the city of the On appeal from a judgment, enjoining a block as a public park, but, in view of the city from erecting a public library on a park conclusion we have reached on the second dedicated as a public place for the enjoyment of the community in general, the contention of

point, we do not deem it necessary to pass plaintiff below being that the city had under upon that question. If it be conceded that no circumstances any authority to devote any there was a dedication of the square as "a portion of it to a public library, the question public place forever for the enjoyment of the of any limitation on such right where the park is small and the building large, cannot be con

community in general," as the principal ordisidered.

nance, on which reliance is based as showing [Ed. Note.-For cases in point, see Cent. Dig. | dedication, declares, still we think that the vol. 2, Appeal and Error, $$ 1137-1140.]

erection therein of a public library for the In Bank. Appeal from Superior Court, Los use of the same public who are entitled to use Angeles County ; D. K. Trask, Judge.

the park is not only not inconsistent with the Action by J. H. Spires against the city of

purposes for which the park was dedicated, Los Angeles and others. Judgment for plain

but is really in aid and furtherance of its tiff. Defendants appeal. Reversed and re

enjoyment by the public. It is to be remenmanded.

bered that the dedication here is not one made

by a private individual for a specific public W. B.. Mathews and Herbert J. Goudge, for

use, where the rule of strict construction of appellants. Chas. Wellborn, C. E. Woodside,

the terms of the grant is to be applied. The Eugene Overton, and H. T. Lee (H. W. O'Mel

land which it is claimed here was dedicated veny, of counsel), for respondent.

as a public park was land acquired by the city

as successor to the pueblo of Los Angeles, LORIGAN, J. The plaintiff, a resident and to which it had been granted by the governtaxpayer of the city of Los Angeles, and ment of Spain. The city of Los Angeles, when the owner of certain property abutting on the alleged dedication was made, was th what is claimed to be a public park in er in fee, and its dedication was for a general said city, brought this suit in conjunction public use, namely, "as a public place foragainst the city of Los Angeles, the mayor ever for the enjoyment of the community in and common council, the members of the general.” This was comprehensive language, board of directors, and the members of the and in construing the grant, or rather the extent of the terms of the dedication, no nar- better enjoyment of the public, a public librarow and strict construction should be applied ry is included, is settled by authority. to limit the city in the uses to which the prop- An interesting and leading case upon the erty dedicated may be devoted, as long as subject is the Attorney General v. Corporathey are such as tend to further and promote tion of Sunderland, 2d Ch. Div. 634. This the enjoyment of the people under the general case directly involved the right of a municdedication of them and for their benefit. And ipality to erect a public library in a public that the establishment of a public library, to park. A tract of land was purchased by the which the visitors to the park have access, is borough of Sunderland as an extension to an consistent with such public enjoyment, and existing park,' and was conveyed to it by a tends to enlarge it, we have no doubt.

deed which declared that the land was to As matter of public knowledge, we are be used "only for public walks and pleasure aware that the erection of hotels, restaurants, grounds.” Subsequently the corporation remuseums, art galleries, zoological and botan

lved to employ a quarter of an acre as a ical gardens, conservatories, and the like in site for the erection of town buildings, inpublic parks is common, and we are not point-cluding accommodations for a museum and ed to any authority where it has been regard

a library and public offices. Thereupon suit ed as a diversion of the legitimate uses of the was brought by the Attorney General at the park to establish them, but, on the contrary, relation of certain inhabitants and rate paytheir establishment has been generally recog

ers of Sunderland to have the corporation nized as ancillary to the complete enjoyment restrained from appropriating any portion of by the public of the property set apart for the park “as sites or a site for the erection their benefit. To instance, in Central Park

of any town buildings, or for any erection or in New York City there is a museum of natu

building which is not needed, or incidental ral history and a metropolitan art museum ; to, the maintenance of the park as public and in Golden Gate Park in San Francisco, a walks or pleasure grounds." The vice chanmuseum, children's playground, and build- cellor before whom the case was first argued ings used in connection with it, and a con

held that the municipal corporation defendservatory. We mention simply these parks

ant bad power to erect upon the land in and particular features devoted to the public question a museum and conservatory, but enjoyment, although many other parks might.

not any municipal building or a library or be mentioned where similar buildings have school of art, and pursuant to this decision been erected. Now, we are at a loss to per- a decree was made restraining the corporaceive why, if the erection of museums, con- tion from erecting any town buildings or any servatories, and art galleries are sustained as

building other than a museum or conservain aid of the enjoyment of property dedicated

tory. The corporation appealed from this deto the public, the erection of a public library

cree, and the Court of Appeals modified it on a public park should be proscribed. Cer

by directing that the injunction should not tainly the latter is as much in aid of the en

“extend to a free public library, museum, or joyment of the public as the former, and, as

conservatory open for the use, convenience, far as the right of public access to it is con

and recreation of the persons frequenting cerned, stands on entirely the same footing.

such walks and pleasure grounds." In Of course, if a municipality were undertaking

reaching this conclusion opinions were exto establish on this property a city hall, fire

pressed by the justices of the court, James, engine station, hospital, or jail; endeavoring

L. J., after agreeing with the vice chancellor to devote the property (assuming it was dedi

that the corporation had no authority to use (ated for a public park) to the erection of

any land of the park as the site of a town municipal buildings or offices or structures

hall, saying with reference to the erection of for use in the transaction of municipal busi

the other buildings involved: "The original ness, a different question would be presented, park was appropriated as 'a place of recrea

, , and there would be little hesitancy in holding

tion, and, according to the act under which that it could not do so. But using a portion the land now in question was acquired, it of said dedicated property for a museum or must be used 'as public walks or pleasure art gallery or conservatory or library, de

grounds.' These words are not to be consigned for the recreation, pleasure, and enjoy- strued too narrowly. It is admitted by the ment of the community in general, is an en- information that some buildings are allowtirely different proposition, and is a distinc

able, and the prayer is, as it seems to me, tion generally recognized by the authorities.

quite correct. The corporation is in the posiPublic buildings such as we have last men- tion of a trustee, and the question is whethtioned are for the benefit of the same public er in building a museum and library, it is that enjoys the advantages of the park. | improperly executing a trust. The primary There is nothing exclusive about it, and they object of the trust is to provide a place of are, in fact, erected and maintained as ad

enjoyment and recreation. Nothing is imditional and ancillary means to promote the proper which conduces to that object, and recreation and pleasure of those to whom the

we ought not to quarrel with anything which enjoyment of the park is devoted. And that the corporation, in a reasonable exercise of among the buildings which may be erected their discretion, consider conducive to it. It within a public park in aid of and for the is admitted that the erection of a conserva. tory is allowable, and it is an erection which application here. It is not apparent that the you would expect, as a matter of course, to erection of this library will tend to the defind in first-rate pleasure grounds. The struction of the park at all. The site for a erection of a free museum containing botan- library is relatively but a small portion of it, ical specimens and other curiosities appears and, as we have seen, the erection of such a also to be unobjectionable. A library into building therein is in aid of the public enjoywhich people may turn if the weather be- ment of the entire park. Aside from this, howcomes unfavorable also seems allowable if ever, no issue on this point was made in the bona fide intended for the use of persons court below, the contention of plaintiff there frequenting the grounds, as it will tend to being that, as the park in question was dedipromote the convenient use of the grounds. cated to the use of the public as a pleasure I think, therefore, that the exception in the ground, the city had no authority whatever order ought to be extended, so that the erec- to devote a portion of it, large or small, to tion of a free library may not be prohibited.” a public library. No point was made as to Justice Mellish, concurring, said: “I am of any limitation on the right of a city by reaopinion, therefore, that no part of it can be son of the size of a site proposed to be taken used as the site of a town hall and offices.

in a public park for a library, but the right Can, then, any part of it be applied as a site to do so was denied under any circumfor a museum, library, and conservatory? stances. If the corporations were to acquire land for There is nothing further to be said in this those purposes only, I think that such a pur- matter. Under the view we entertain on the chase would not be within the act; but pub- subject, the city of Los Angeles has a right, lic walks and pleasure grounds having been notwithstanding it be conceded that Central laid out on a piece of land containing 25 Park was dedicated for the benefit and enacres, it is proposed to apply a quarter of an joyment of the public, to build a public liacre for the erection of those buildings. The brary on it, and the court was in error in question then arises whether this applica- granting a decree to plaintiff enjoining it, tion of a small portion of the ground is not and its officers from doing so. This view, of reasonably incidental to the main object, and course, necessitates a reversal of the judg

has the right

their character of public walks and pleasure to establish upon the public park a public

grounds. I am of opinion that it will, for it library it cannot devote any of the rooms will increase the enjoyment of persons who therein to administration purposes. It apgo to walk there, and may induce more per- pears from the evidence set forth in the bill sons to frequent the grounds. I think that of exceptions accompanying this appeal that we ought not to put a narrow and strict con- it is the purpose of the city to provide rooms struction upon the words, but that we ought therein as a meeting place for the board of to see whether the trustees, in what they are library directors of such city, and that approposing to do, are bona fide carrying out plication has been made to such board of dithe object of the trust." And Justice Bag- rectors to provide rooms therein for the gallay expressed himself to the same effect: | board of education. As far as the board of “The purposes of the section are that the directors is concerned, this would seem perland should be used for public walks and missible on account of their control of the pleasure grounds, and I should much regret library. But as to the board of education this to be obliged to hold that applying a small cannot be done. The library building can be portion of it for a museum, library, and con- used for strictly library purposes only, and servatory, was inconsistent with this pur- cannot be devoted to the establishinent of pose. I cannot conceive anything more like- municipal offices therein or used for municily to conduce to the enjoyment of the walks pal administration purposes other than as and pleasure grounds than the having these indicated relative to the board of library dierections attached to them, and I agree with rectors. If any part of such building could be the Lord Justices that the order should be used for one administration purpose, it might varied to the extent mentioned.”

gradually be devoted to another. If one muIt is insisted, however, by respondent that nicipal board or municipal officer of the city if this rule, supported by universal custom, having no direct relation to the library can and announced in the case just cited, ob- be located therein, so may another, and so tains, it can only apply when but a small the building which the city has a right to portion of a public park is taken, and not erect as a library building solely in aid of when the site to be used is so large as to the public enjoyment of the park may be result practically in the destruction of the gradually invaded for administration purpospark as a pleasure ground for the recreation es and ultimately devoted to those purand enjoyment of the public. This argu- poses. Upon a new trial it shall be the duty ment concedes the general right of the of the trial court under the views we have municipality to take a part of the park for suggested to ascertain whether the city of buildings erected in aid of the enjoyment of Los Angeles proposes to use the library to be the park by the public, and only insists that erected for any municipal purpose at all, exit has its limitations. But conceding the cept as to a meeting room for said board of limitations, we have nothing to do with its | library directors, and, if so, to enjoin such

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