City and County of San Francisco v. Ross

• Decision Date: 03 February 1955
• Citation: 279 P.2d 529,44 Cal.2d 52
• Court: California Supreme Court
• Parties: CITY AND COUNTY OF SAN FRANCISCO, a municipal corporation, Petitioner, v. Harry D. ROSS, as Controller of the City and County of San Francisco, Respondent. S. F. 18982.

Page 529

279 P.2d 529

44 Cal.2d 52

CITY AND COUNTY OF SAN FRANCISCO, a municipal corporation, Petitioner, v. Harry D. ROSS, as Controller of the City and County of San Francisco, Respondent.

S. F. 18982.

Supreme Court of California, In Bank.

Feb. 3, 1955.

As Modified Feb. 16, 1955.

Dion R. Holm, City Atty., and John Elmer Barricklo, Deputy City Atty., San Francisco, for petitioner.

Jesse H. Steinhart, B. J. Feigenbaum, John H. Steinhart, San Francisco, and Joseph J. Carter, Albany, for respondent.

SHENK, Justice.

This is a proceeding in mandamus. The alternative writ issued. The respondent Harry D. Ross is the Controller of the petitioning city and county and upon request refused to certify to the availibility of funds in the city's Off-Street Parking Bond Fund for the acquisition by eminent domain of a proposed off-street parking garage site between Ellis and O'Farrell Streets in downtown San Francisco. By this proceeding the city seeks to compel such certification.

The electorate of the city approved a parking bond issue in the sum of $5,000,000 in 1947. The purpose of providing this fund was to pay for 'the cost of public parking lots, storage space, garages, single or multi-level structures, and other off-street parking facilities on, under or above the surface of any property, including public parks, squares, lands, easements or rights of way to be acquired by purchase or condemnation, together with buildings, structures, equipment, approach roads, entrances, exits, fencing, off-street parking meters, and other works, property or structures for the accommodation of automotive vehicles, and necessary or convenient for adequate parking facilities, to relieve the congestion and to facilitate traffic in the metropolitan district of the City and County of San Francisco, provided that all lands and sites so acquired be subject to the approval of the Planning Commission of the City and County of San Francisco.' Approximately $4,000,000 remains unallocated in this fund.

On October 3, 1949, purporting to act under the Parking Law of 1949, Sts. & Hy.Code, §§ 32500-33552, the city duly took the necessary steps to create a Parking Authority. The Authority, with the sanction of the City Planning Commission, approved the site here involved. The Board of Supervisors determined the site to be convenient and necessary and requested the Authority to submit a proposed working agreement between it and the city. Such an agreement was submitted and executed. Under the agreed plan the city was to acquire by eminent domain the desired site and to lease it to private individuals who would build a structure thereon in accordance with the city's specifications and operate parking and other facilities therein. Acting on the Authority's recommendation the Board of Supervisors passed an ordinance requesting the respondent controller to certify the availability of funds for the acquisition of the site under the authority of the San Francisco city charter and eminent domain provisions of the general law.

The controller's refusal to act favorably in response to the request is based on his contention that the money in the fund cannot lawfully be used for the expenditure as it is proposed to be applied. The Charter of the City of San Francisco requires the approval of the respondent before money may be disbursed. Charter of San Francisco, § 86, par. 1.

There are several special statutory procedures under which the city could proceed and by eminent domain acquire property to be leased to and operated by private individuals. Vehicle Parking District Law of 1943, Sts. & Hy.Code, §§ 31500-31907; Parking District Law of 1951, Sts. & Hy.Code, §§ 35100-35705; Sanitation, Sewer and Water Revenue Bond Law of 1941, Gov.Code, §§ 54300-54672. The city created its existing Parking Authority under the Parking Law of 1949. Sts. & Hy.Code, §§ 32500-33552; see also Municipal Parking Revenue Bond Law of 1949, Sts. & Hy.Code, §§ 33800-34859. But other than the establishment of the Authority, the city has not availed itself of any of the various special legislative acts and does not purport to proceed in any manner provided for in those statutory provisions. It is assuming to proceed under its general power of eminent domain to accomplish the acquisition of the property, Code of Civ.Proc. § 1238.1, and thereafter to proceed under its claimed power to effect the lease of its properties to private interests.

The city's right to proceed under any one of several alternative methods for acquiring the property by the exercise of eminent domain is not challenged. See City of Oakland v. Parker, 70 Cal.App. 295, 233 P. 68; County of Los Angeles v. Rindge Co., 53 Cal.App. 166, 200 P. 27. But it must justify its actions under whatever procedure it undertakes to accomplish its purpose. There are no express provisions in its charter conferring upon the city the right to condemn property for the purpose stated herein. A municipal corporation has no inherent power of eminent domain and can exercise it, if at all, only when expressly authorized by law. Alexander v. Mitchell, 119 Cal.App.2d 816, 821, 260 P.2d 261; Mackay v. City of Los Angeles, 136 Cal.App. 180, 183, 28 P.2d 706; City of Los Angeles v. Koyer, 48 Cal.App. 720, 725, 192 P. 301; 10 Ruling Case Law 196, and cases there cited. In such event its exercise is not to be classed as a municipal affair but instead is a matter of statewide concern. Alexander v. Mitchell, supra, 119 Cal.App.2d 816, 820, 260 P.2d 261; City of Tacoma v. State, 4 Wash. 64, 29 P. 847. This conclusion is inescapable in the present case as the city itself purports to find its power of condemnation in the general law of the state. Code Civ.Proc. § 1238.1. The city, then, must conform to the general law in acquiring the proposed property.

The controller's refusal to certify the availability of funds is based on his contention that under the general law the city cannot condemn private property to be immediately leased to private parties for use as a private venture. Article 1, section 14 of the Constitution restricts the exercise of eminent domain to specific purposes not including the contemplated use in the present case unless it may quality as a 'public use.' Section 1238.1 of the Code of Civil Procedure authorizes the city to condemn property for off-street parking facilities 'for public use.' The controller insists that the city's admitted intention to refrain from directly controlling rates to be charged to customers and from otherwise regulating the operation of the proposed facility constitutes the operation of the garage as one in the nature of a private business and not as one for 'public use' for which eminent domain could be used. This is the basic issue involved.

The question appears to be a novel one in this state. It has been decided adversely to the city's contention in a recent decision by the Supreme Court of the State of Rhode Island. In Opinion to the Governor, 1950, 76 R.I. 365, 70 A.2d 817, 820, the court held unconstitutional a statute authorizing a development authority to acquire land by eminent domain for a marina and auditorium to be operated by a private individual under a lease from the authority. After holding that the operation of a marina might be for the public benefit the court stated that the statute 'would permit the spending of public money and the exercise of the right of eminent domain to acquire private property ostensibly for a public purpose but actually for profit in the operation of the marina as a private enterprise. * * * To permit such authority to lease the entire project to some private person, who thereafter would operate it for his own profit by fixing the fees and charges for its use and for services rendered without regulation in the public interest as a public utility, would at once make it a private enterprise and would remove the element of primary public use or purpose which is essential if the act by which the project is authorized is to be considered valid.'

In Berman v. Parker, 348 U.S. 26, 75 S.Ct. 98, the District of Columbia Redevelopment Law of 1945, 60 Stat. 790, D.C.Code 1951, §§ 5-701 to 5-719, was...