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 respondent passed a certain ordinance designated as "ordinance No. 69," which was to take effect only upon the filing by 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 averred 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. 264, 74 Pac. 856, 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 No. 69, passed February 20, 1892, with its acceptance 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 and 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 designate.

"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

grant a certain right to use a portion of the public streets, and that, as it purports to be a grant by public authority of a right to the use of public property, it does purport to grant a franchise. The fact that it also regulates the manner of the use does not change its character in this respect. But, in so far as it purports to grant such right, it merely attempts to give the plaintiff that which it already had, and was of no legal effect whatever. The assessment, being specifically upon that so-called franchise, was upon a thing which had no real existence and which could not have any value. It was, therefore, necessarily void, and its collection in the manner here attempted should be enjoined

We concur: BEATTY, C. J.; ANGELLOTTI, J.; SLOSS, J.

(150 Cal. 64)

SPIRES v. CITY OF LOS ANGELES et al. (L. A. 1857.)

(Supreme Court of California. Oct. 11, 1906.) 1. DEDICATION-CITY PARK-USE OF PROP

ERTY.

The erection by a city on a square dedicated by it as "a public place forever for the enjoyment of the community in general," of a public library for the use of the same public, is not only not inconsistent with the purpose for which the park was dedicated, but is in aid and furtherance of its enjoyment by the public; but the building can be used for strictly library purposes only; so that, while rooms therein may be provided as a meeting place for the board of library directors, they cannot be provided for the board of education.

2. APPEAL-ISSUES NOT RAISED BELOW.

On appeal from a judgment, enjoining a city from erecting a public library on a park dedicated as a public place for the enjoyment of the community in general, the contention of plaintiff below being that the city had under no circumstances any authority to devote any portion of it to a public library, the question of any limitation on such right where the park is small and the building large, cannot be considered.

[Ed. Note. For cases in point, see Cent. Dig. vol. 2, Appeal and Error, §§ 1137-1140.]

In Bank. Appeal from Superior Court, Los Angeles County; D. K. Trask, Judge.

Action by J. H. Spires against the city of Los Angeles and others. Judgment for plaintiff. Defendants appeal. Reversed and re

manded.

W. B.. Mathews and Herbert J. Goudge, for appellants. Chas. Wellborn, C. E. Woodside, Eugene Overton, and H. T. Lee (H. W. O'Melveny, of counsel), for respondent.

LORIGAN, J. The plaintiff, a resident and taxpayer of the city of Los Angeles, and the owner of certain property abutting on what is claimed to be a public park in said city, brought this suit in conjunction against the city of Los Angeles, the mayor and common council, the members of the board of directors, and the members of the

board of park commissioners of that city, to: restrain them from erecting a public library on a tract of land owned by said city of Los Angeles bounded by Fifth, Hill, Sixth and Olive streets in that city, and known as "Central Park," on the ground that the city, as owner of said property, had dedicated it to the use of the public for park purposes, and that such purpose would not permit erection therein of a public library building. The Central Park in question is 600 by 330 feet in size, and it was proposed by the municipal authorities to use a space in the center thereof, 100 by 150 feet, upon which to erect a public library. The trial court found that the land in question had been set apart and dedicated by the city authorities of Los Angeles for the use of the public as a public park, and that its official name was "Central Park." and. 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. Judgment was rendered for the plaintiff in accordance with the prayer of the complaint, and the defendants appeal to this court therefrom. The appeal is from the judgment, accompanied by a bill of exceptions.

The sole points presented on this appeal are whether, first, the block in question was ever dedicated by the city of Los Angeles as a public park, or secondly, if it was so dedicated. would the erection therein of a public library be foreign to the purposes for which said tract was dedicated, inconsistent with its use by the public, and an invasion of public right. Much of the evidence in the case was addressed to the first proposition, whether there was in fact a dedication by the city of the block as a public park, but, in view of the conclusion we have reached on the second

point, we do not deem it necessary to pass upon that question. If it be conceded that there was a dedication of the square as "a public place forever for the enjoyment of the community in general," as the principal ordinance, on which reliance is based as showing dedication, declares, still we think that the erection therein of a public library for the use of the same public who are entitled to use the park is not only not inconsistent with the purposes for which the park was dedicated, but is really in aid and furtherance of its enjoyment by the public. enjoyment by the public. It is to be remembered that the dedication here is not one made by a private individual for a specific public use, where the rule of strict construction of the terms of the grant is to be applied. The land which it is claimed here was dedicated as a public park was land acquired by the city as successor to the pueblo of Los Angeles, to which it had been granted by the government of Spain. The city of Los Angeles, when the alleged dedication was made, was the owner in fee, and its dedication was for a general public use, namely, "as a public place forever for the enjoyment of the community in general." This was comprehensive language, and in construing the grant, or rather the ex

tent of the terms of the dedication, no narrow and strict construction should be applied to limit the city in the uses to which the property dedicated may be devoted, as long as they are such as tend to further and promote the enjoyment of the people under the general dedication of them and for their benefit. And that the establishment of a public library, to which the visitors to the park have access, is consistent with such public enjoyment, and tends to enlarge it, we have no doubt.

As matter of public knowledge, we are aware that the erection of hotels, restaurants, museums, art galleries, zoological and botanical gardens, conservatories, and the like in public parks is common, and we are not pointed to any authority where it has been regarded as a diversion of the legitimate uses of the park to establish them, but, on the contrary, their establishment has been generally recognized as ancillary to the complete enjoyment by the public of the property set apart for their benefit. To instance, in Central Park in New York City there is a museum of natural history and a metropolitan art museum; and in Golden Gate Park in San Francisco, a museum, children's playground, and buildings used in connection with it, and a conservatory. We mention simply these parks and particular features devoted to the public enjoyment, although many other parks might be mentioned where similar buildings have been erected. Now, we are at a loss to perceive why, if the erection of museums, conservatories, and art galleries are sustained as in aid of the enjoyment of property dedicated to the public, the erection of a public library on a public park should be proscribed. Certainly the latter is as much in aid of the enjoyment of the public as the former, and, as far as the right of public access to it is concerned, stands on entirely the same footing. Of course, if a municipality were undertaking to establish on this property a city hall, fire engine station, hospital, or jail; endeavoring to devote the property (assuming it was dedicated for a public park) to the erection of municipal buildings or offices or structures for use in the transaction of municipal business, a different question would be presented, and there would be little hesitancy in holding that it could not do so. But using a portion of said dedicated property for a museum or art gallery or conservatory or library, designed for the recreation, pleasure, and enjoyment of the community in general, is an entirely different proposition, and is a distinction generally recognized by the authorities. Public buildings such as we have last mentioned are for the benefit of the same public that enjoys the advantages of the park. There is nothing exclusive about it, and they are, in fact, erected and maintained as additional and ancillary means to promote the recreation and pleasure of those to whom the enjoyment of the park is devoted. And that among the buildings which may be erected within a public park in aid of and for the

better enjoyment of the public, a public library is included, is settled by authority.

An interesting and leading case upon the subject is the Attorney General v. Corporation of Sunderland, 2d Ch. Div. 634. This case directly involved the right of a municipality to erect a public library in a public park. A tract of land was purchased by the borough of Sunderland as an extension to an existing park, and was conveyed to it by a deed which declared that the land was to be used "only for public walks and pleasure grounds." Subsequently the corporation resolved to employ a quarter of an acre as a site for the erection of town buildings, including accommodations for a museum and a library and public offices. Thereupon suit was brought by the Attorney General at the relation of certain inhabitants and rate payers of Sunderland to have the corporation restrained from appropriating any portion of the park "as sites or a site for the erection of any town buildings, or for any erection or building which is not needed, or incidental to, the maintenance of the park as public walks or pleasure grounds." The vice chancellor before whom the case was first argued held that the municipal corporation defendant had power to erect upon the land in question a museum and conservatory, but not any municipal building or a library or school of art, and pursuant to this decision a decree was made restraining the corporation from erecting any town buildings or any building other than a museum or conservatory. The corporation appealed from this decree, and the Court of Appeals modified it by directing that the injunction should not "extend to a free public library, museum, or conservatory open for the use, convenience, and recreation of the persons frequenting such walks and pleasure grounds." In reaching this conclusion opinions were expressed by the justices of the court, James, L. J., after agreeing with the vice chancellor that the corporation had no authority to use any land of the park as the site of a town hall, saying with reference to the erection of the other buildings involved: "The original park was appropriated as 'a place of recreation,' and, according to the act under which the land now in question was acquired, it must be used 'as public walks or pleasure grounds.' These words are not to be construed too narrowly. It is admitted by the information that some buildings are allowable, and the prayer is, as it seems to me, quite correct. The corporation is in the position of a trustee, and the question is whether in building a museum and library, it is improperly executing a trust. The primary object of the trust is to provide a place of enjoyment and recreation. Nothing is improper which conduces to that object, and we ought not to quarrel with anything which the corporation, in a reasonable exercise of their discretion, consider conducive to it. It is admitted that the erection of a conserva

tory is allowable, and it is an erection which you would expect, as a matter of course, to find in first-rate pleasure grounds. The erection of a free museum containing botanical specimens and other curiosities appears also to be unobjectionable. A library into which people may turn if the weather becomes unfavorable also seems allowable if bona fide intended for the use of persons frequenting the grounds, as it will tend to promote the convenient use of the grounds. I think, therefore, that the exception in the order ought to be extended, so that the erection of a free library may not be prohibited." Justice Mellish, concurring, said: "I am of opinion, therefore, that no part of it can be used as the site of a town hall and offices. Can, then, any part of it be applied as a site for a museum, library, and conservatory? If the corporations were to acquire land for those purposes only, I think that such a purchase would not be within the act; but public walks and pleasure grounds having been laid out on a piece of land containing 25 acres, it is proposed to apply a quarter of an acre for the erection of those buildings. The question then arises whether this application of a small portion of the ground is not reasonably incidental to the main object, and whether it will not improve the grounds in their character of public walks and pleasure grounds. I am of opinion that it will, for it will increase the enjoyment of persons who go to walk there, and may induce more persons to frequent the grounds. I think that we ought not to put a narrow and strict construction upon the words, but that we ought to see whether the trustees, in what they are proposing to do, are bona fide carrying out the object of the trust." And Justice Baggallay expressed himself to the same effect: "The purposes of the section are that the land should be used for public walks and pleasure grounds, and I should much regret to be obliged to hold that applying a small portion of it for a museum, library, and conservatory, was inconsistent with this purpose. I cannot conceive anything more likely to conduce to the enjoyment of the walks and pleasure grounds than the having these erections attached to them, and I agree with the Lord Justices that the order should be varied to the extent mentioned."

It is insisted, however, by respondent that if this rule, supported by universal custom, and announced in the case just cited, obtains, it can only apply when but a small portion of a public park is taken, and not when the site to be used is so large as to result practically in the destruction of the park as a pleasure ground for the recreation and enjoyment of the public. This argument concedes the general right of the municipality to take a part of the park for buildings erected in aid of the enjoyment of the park by the public, and only insists that it has its limitations. But conceding the limitations, we have nothing to do with its

application here. It is not apparent that the erection of this library will tend to the destruction of the park at all. The site for a library is relatively but a small portion of it, and, as we have seen, the erection of such a building therein is in aid of the public enjoyment of the entire park. Aside from this, however, no issue on this point was made in the court below, the contention of plaintiff there being that, as the park in question was dedicated to the use of the public as a pleasure ground, the city had no authority whatever to devote a portion of it, large or small, to a public library. No point was made as to any limitation on the right of a city by reason of the size of a site proposed to be taken in a public park for a library, but the right to do so was denied under was denied under any circumstances.

There is nothing further to be said in this matter. Under the view we entertain on the subject, the city of Los Angeles has a right, notwithstanding it be conceded that Central Park was dedicated for the benefit and enjoyment of the public, to build a public library on it, and the court was in error in granting a decree to plaintiff enjoining it, and its officers from doing so. This view, of course, necessitates a reversal of the judgment. While the municipality has the right to establish upon the public park a public library it cannot devote any of the rooms therein to administration purposes. It appears from the evidence set forth in the bill of exceptions accompanying this appeal that it is the purpose of the city to provide rooms therein as a meeting place for the board of library directors of such city, and that application has been made to such board of directors to provide rooms therein for the board of education. As far as the board of directors is concerned, this would seem permissible on account of their control of the library. But as to the board of education this cannot be done. The library building can be used for strictly library purposes only, and cannot be devoted to the establishment of municipal offices therein or used for municipal administration purposes other than as indicated relative to the board of library directors. If any part of such building could be used for one administration purpose, it might gradually be devoted to another. If one municipal board or municipal officer of the city having no direct relation to the library can be located therein, so may another, and so the building which the city has a right to erect as a library building solely in aid of the public enjoyment of the park may be gradually invaded for administration purposes and ultimately devoted to those purposes. Upon a new trial it shall be the duty of the trial court under the views we have suggested to ascertain whether the city of Los Angeles proposes to use the library to be erected for any municipal purpose at all, except as to a meeting room for said board of library directors, and, if so, to enjoin such