165 Cal. 576, S. F. 6526, Egan v. City and County of San Francisco (A Municipal Corporation)
| Citation | 165 Cal. 576, 133 P. 294 |
| Opinion Judge | SLOSS, Judge |
| Party Name | GEORGE C. W. EGAN, Appellant, v. CITY AND COUNTY OF SAN FRANCISCO (a Municipal Corporation), and MUSICAL ASSOCIATION OF SAN FRANCISCO (a Corporation), Respondents |
| Attorney | H. S. Young, and John H. Riordan, Amicus Curiae, for Appellant. Percy V. Long, City Attorney, Thomas E. Haven and Henry H. Hart, Assistant City Attorneys, for Respondent, City and County of San Francisco. Heller, Powers & Ehrman, for Respondent Musical Association of San Francisco. |
| Judge Panel | JUDGES: In Bank. Sloss, J. Angellotti, J., Shaw, J., Lorigan, J., Melvin, J., and Henshaw, J., concurred. |
| Case Date | June 11, 1913 |
| Court | California Supreme Court |
Page 576
Page 577
APPEAL from a judgment of the Superior Court of the City and County of San Francisco. J. M. Seawell, Judge.
The judgment is reversed.
COUNSEL
OPINION
Page 578
The plaintiff, as a taxpayer of the city and county of San Francisco, brought this action to enjoin the carrying out of the terms of a certain agreement, entered into between the city and county and the Musical Association of San Francisco, and looking to the erection and management of an opera house. He also sought to have the agreement, and an ordinance authorizing its execution, declared null and void. A demurrer to the complaint was sustained, and judgment in favor of the defendants entered. The plaintiff appeals from the judgment.
The agreement in question, briefly stated, after reciting the incorporation of the Musical Association of San Francisco (which we shall hereinafter designate as the "Association" ) for the purpose of fostering and promoting the art of music, and encouraging a taste therefor, and declaring the desirability of these purposes, provides as follows: The association agrees to build, erect, furnish and equip upon a described block of land owned by the city and county, and forming a part of the tract set apart as a Civic Center, an opera house, and to expend in the construction, decoration, and equipment thereof
Page 579
not less than seven hundred and fifty thousand dollars. The opera house, when completed, is to become a part of the realty, and title to the land and building shall be vested in perpetuity in said city, "but in trust for the uses, trusts and purposes hereinafter set forth." The building to be erected is to be used exclusively for the production of operas, music dramas, ballets, and concerts, and other musical and dramatic purposes. When not in use for these purposes, it may, for the purpose of deriving a revenue to be applied to such purposes, be rented by the trustees hereafter named. The perpetual use of the land and building, as above stated, shall never be changed except by the consent of both parties to the agreement. The construction, decoration, furnishing, and equipment of the opera house is to be under the direction, control, and supervision and at the expense of the association, but the exterior design is to be approved by the board of supervisors of the city and county. The city agrees, so far as it has power so to do, that no taxes shall be assessed or levied on the building or its contents, or upon the box, loge, or seat privileges in the opera house. The expense of parking and gardening the grounds about the building is to be borne by the city.
The 7th paragraph of the agreement provides that "the occupation, conduct, control, [133 P. 295] management and possession of said opera house and its contents shall be vested in perpetuity in a board of fifteen trustees, or their respective successors, to be constituted as follows": Nine trustees to be appointed from the membership of the association by the board of governors, one to be the mayor of the city and county of San Francisco, one the head of the department of education of said city, one a supervisor of the city and county appointed by the mayor, one a citizen, not in public office, to be appointed by the mayor, one a professor of the University of California, and one a professor of Leland Stanford Jr. University, the two last named to be appointed by the presidents of the respective universities. The following paragraph declares that "the said trustees for all the purposes herein contemplated shall be vested with the full control, possession and management of the said opera house and its contents, and except as hereinabove provided, of the land above particularly described.. . ." The trustees are authorized to lease the opera house
Page 580
to companies, managers, or individuals for the purposes contemplated by the agreement; they are to have the sole right to direct and prescribe the quality of performances to be given, and the amount to be paid for admission, except that at least four hundred seats are to be reserved for sale to the public at a price not exceeding $ 1.50 per seat. The agreement contains a number of further provisions, but what we have set forth will sufficiently illustrate the principal points which are to be here considered.
In the final analysis, there is but one question to be decided, and that is, has the city and county of San Francisco, acting through its board of supervisors, the power to enter into an agreement like the one here attempted to be made. If the requisite authority is lacking, this court has, of course, no concern with the desirability of such an arrangement. No doubt the citizens who, by their subscriptions to the association, have made it possible for that body to undertake to erect, without cost to the city, a monumental structure, dedicated to the encouragement and advancement of artistic effort, are actuated by motives of altruism and civic pride rather than by any purpose of personal advantage. No doubt, too, the supervisors, in authorizing this contract, were impelled by the laudable desire to add to the attractions and benefits which the city has to offer to its inhabitants. But, however worthy the motive, however advantageous to the public the result sought to be attained, it must always be remembered that municipal corporations are public bodies of limited powers, and that the validity of their acts must be judged by an examination of the charter or law defining their powers, rather than by a view of the purposes or results of those acts. If the city and county has not the power to enter into such a contract as the one before us, that contract must fall, even though every member of this court should be convinced that the construction of an opera house on the agreed plan would be of the greatest benefit to the city and those residing within it. Notwithstanding the earnest and able arguments advanced on behalf of the respondents, we are unable to find any legal warrant for upholding the validity of the agreement. The effect of the transaction is, simply, that the city and county agrees with a private corporation that the latter may erect a building upon land belonging to the city, and that the entire
Page 581
control and management of the land, with the building, are to be turned over to a board composed, for the main part, of persons whom the municipality has not selected and whose actions it cannot direct. It is true that, under the terms of the agreement, the ownership of the land and building is to be vested in the city and county. But the beneficial attributes of ownership, over and above the naked legal title, are taken from the city and county, and are placed in the hands of private persons. The trustees have the "occupation, conduct, control, management and possession" of the opera house in perpetuity; they are authorized to lease the premises, they are to prescribe the performances to be...
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A gleeful obituary for Poletown Neighborhood Council v. Detroit.
...two movements as identical. See DEWEY, supra note 41. (49.) See Sandefur, supra note 22, at 659-61. (50.) See, e.g., Egan v. San Francisco, 133 P. 294, 296 (Cal. 1913) ("[g]enerally speaking, anything calculated to promote the education, the recreation or the pleasure of the public is to be......