Polack v. Trustees of San Francisco Orphan Asylum

48 Cal. 490, 1874 Cal. LEXIS 185

• Court: California Supreme Court
• Decided: July 1, 1874
• Docket: No. 3,482
• Status: Published

Opinion

By the Court, Rhodes, J.:

In 1865, the Board of Supervisors of the City and County of San Francisco passed a resolution “ that the Protestant. Orphan Asylum Society have the use of Waller street, between Laguna and Buchanan streets, and that the same remain closed during the pleasure of this Board. ” On the' 23d of January, 1866, an Act was passed by which the Board of Supervisors were authorized to close up Waller street, between Laguna and Buchanan streets, and dedicate the same to the use of the Protestant Orphan Asylum (Stats. 1865-5, p. 37). A further Act was passed March 5, 1868 (Stats. 1867-8, p. 95), the first section of which is as follows: “The block of land in the City and County of San. Francisco, bounded by Kate street, Buch'anan street, Laguna street, and Haight street, and every part thereof, is confirmed to the free use of its present occupants, to wit: the Protestant Orphan Asylum of the City and County of San Francisco; and no street shall be opened through any' part of said block of land without the consent of said Asylum.” The block of land therein described includes that portion of Waller street which lies between Laguna and Buchanan streets. The defendant inclosed the whole block, thereby closing up the portion of Waller street above mentioned. The plaintiff owns several blocks and lots of land fronting on Waller street, and the defendant’s inclosure prevents her from passing from Market street continuously along Waller street to her property. The purpose of this action is to cause the defendant to remove its fences, etc.,, from Waller street, claiming that thfey constitute a nuisance. The answer sets up the above mentioned resolution and statutes, and the demurrer thereto was sustained.

That the Legislature possesses competent power to vacate a street in a city; that the Legislature may delegate or commit such power to the municipal authorities of the city; that its exercise by the municipal authorities is dependent on the will and subject to the control of the Legislature; and that after such power has thus been committed to the municipal authorities, the Legislature may revoke it in part as well as in whole, or, without an express revocation, may itself exercise it in any particular instance, are propositions about which there can be no controversy in this State. The plenary power of the Legislature over the whole domain of streets, is well illustrated by the decisions of this Court, in the litigation respecting Kearny, Second and Beale Streets, in the city of San Francisco.

The only remaining question involving the validity of the statutes presented in this case—and in our opinion it does not amount to a serious question—is whether it is a condition to the exercise by the Legislature of its power to vacate a portion of a street, that no person owning property fronting on another portion of the street, will incidentally be injured by such action. There is no provision of the Constitution which imposes that condition or limitation on the exercise of such power, and no principle of law is suggested which will lead to that result.

Judgment reversed and cause remanded, with directions to overrule the demurrer to the answer. Remittitur forthwith.

Mr. Justice McKinstry concurred specially in the judgment.

Mr. Chief Justice Wallace did not express an opinion.