City & County of S. F. v. Budde
| Decision Date | 02 February 1956 |
| Citation | 139 Cal.App.2d 10,292 P.2d 955 |
| Court | California Court of Appeals Court of Appeals |
| Parties | CITY AND COUNTY OF SAN FRANCISCO, a city and county, Plaintiff and Appellant, v. Henry J. BUDDE and Cyril Magnin, substituted for Ward Walkup and Dwight L. Merriman, and Harold Lopez, constituting The Board of State Harbor Commissioners for San Francisco Harbor, Defendants and Respondents. Civ. 16671. |
Dion R. Holm, City Atty., City and County of San Francisco, George E. Baglin, Patrick R. Kelly, Deputies City Atty., San Francisco, for appellants.
Edmund G. Brown, Atty. Gen., of the State of California, Miriam E. Wolff, Robert L. Bergman, Deputies Atty. Gen., for respondents.
Plaintiff sued the members of the Board of State Harbor Commissioners on a complaint which has some of the features of an action for declaratory relief, some of those of a mandatory injunction, and some of those of a prohibitory injunction. The defendants answered denying some of the pleaded facts and made a separate plea that the complaint did not state a cause of action.
At the conclusion of the trial the court granted defendants' 'motion for a non-suit and gen. dem.' The judgment recites that it is based on the order for a non-suit for the insufficiency of plaintiff's proof. This leaves the question on appeal whether the facts proved supported any of the grounds for relief for which plaintiff prayed.
The Embarcadero forms part of the tideland which is administered by the defendant Board of State Harbor Commissioners under statutes which clearly define the powers and duties of the commissioners. For many years the State has maintained The Embarcadero as a highway approximately 180 feet wide running along the uneven shore of the San Francisco Bay. Over this street the Board has operated a State-owned railway for the transportation of freight to and from transcontinental railway lines and ships at the transportation docks.
In the year 1940 the Harbor Board realigned its tracks at the intersection with Francisco Street by laying new tracks at ballast and erecting curbs on either side of the tracks thus preventing vehicular traffic from using that portion of the Embarcadero formerly used in connection with Francisco Street. It appears that Francisco Street at this point is but a block and a half long running from the Embarcadero to the base of Telegraph Hill, a distance of 1,000 feet. It also appears that the Board maintains ample means of crossing the Embarcadero on streets approximately 300 feet from the intersection with Francisco. These facts are stated here to meet the plaintiff's charge of breach of discretion on the part of the Board. The issue of power is simple.
Since the Embarcadero is a State-owned thoroughfare the power of the Legislature to regulate its operation and control must be conceded. Hence the power of the State Harbor Board in this instance is controlled by the provisions of section 3131 of the Harbors and Navigation Code, Statutes 1955, Chapter 401 which reads:
'The thoroughfare shall have a roadway of 180 feet, and a sidewalk on its inner side of 20 feet in width, except that the board may maintain thereon State Belt Railroad tracks in the manner and to the extent deemed by the board to be in the best interests of vehicular and railroad traffic and in this connection the board may remove paving, erect barriers and perform such other acts as may prohibit the movement of vehicular and pedestrian traffic over and along the railroad tracks. * * *' (Emphasis added.)
The question remaining is whether this amendment, having been enacted after the trial and judgment herein, is applicable on this appeal. It is settled law that in an action in equity, as we have here, the rights of the parties will be determined upon the basis of the law as it exists at the time of the determination rather than as of the time the complaint was filed. This rule applies to judgments on appeal as well as to judgments in the trial courts. Complete Service Bureau v. San Diego County Med. Soc., 43 Cal.2d 201, 207, 272 P.2d 497.
An incidental question arises as to the form of the judgment. The defendants filed an answer to the complaint which also included a general demurrer. At the end of the hearing an order was entered reading 'motion for a non-suit and gen. dem. * * * granted.'
It is argued that a non-suit is improper in an action for declaratory relief. Ordinarily that is so. Essick v. City of Los Angeles, 34 Cal.2d 614, 624, 213 P.2d 492; Kessloff v. Pearson, 37 Cal.2d 609, 613, 233 P.2d 899; Anderson v. Stansbury, 38 Cal.2d 707, 717, 242 P.2d 305. But then the question arises whether it was prejudicial error.
As we have heretofore said the complaint herein has some of the features of a case in declaratory relief, some of a mandatory injunction, and some of a prohibitory injunction. As to the two latter pleas the non-suit is good; as to the former it was error. But, as in Anderson v. Stansbury, supra, the error was nonprejudicial.
For the same reason the judgment herein is affirmed.
Since my associates have chosen to base their opinion on a single narrow ground with which I cannot agree I will, as they have done, refrain from discussing other grounds urged by respondents in support of the judgment. As they have chosen not to discuss those matters nothing that I might say about them could have any judicial effect because the concurrence of at least two justices of this court is required to give any pronouncement judicial force. Cal.Const. Art. VI, § 4(a).
My associates assume, without discussion, that the 1955 amendment to section 3131, Harbors and Navigation Code, is a grant of power to the State Board of Harbor Commissioners to close the access from any San Francisco street leading into the Embarcadero by removing pavement and constructing barriers about the State Belt Railroad tracks.
Section 3131 does not deal with the subject of intersecting streets but with a wholly different subject. It deals exclusively with the width of the sidewalk and roadway of the 200 foot wide thoroughfare...
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