I. In regard to the power of the City of Oakland to make the grant in question, the respondent's argument makes no distinction between the grant of the lands and the grant of the franchise. These are essentially different and must be so treated. In the act granting the lands to the city, the power of disposing of them is given in its largest terms. But it is assumed that all the lands could not be granted without defeating the power to erect wharves, for it is asked what right would the town have to build wharves on the land of another.
We have several answers: 1st. All the land did not pass by the grant, because that portion which would be the protractions of the streets were, by the plan of the city, dedicated to public use, as was decided by this Court in Wood v. San Francisco (4 Cal.)
2d. The city might reacquire by purchase, if necessary, any portion of the water front, and thus exercise her power of erecting wharves.
3d. At the termination of the lease to Carpentier she would again resume full control of the whole subject matter.
4th. It would be absurd to imagine that all the land was necessary for the purpose of wharves; the respondent says there are nine thousand acres. Now not only the quantity, but the power given to disposeof them would contradict the assumption of any such necessity.
That the grant and the power to dispose of these lands constitutes them absolute property in the town, free from any trust, was fully settled by this Court in the case of Holliday v. Frisbie (15 Cal. 630).
The City of Oakland had the title to the wharf franchise, but it is said there was a public trust connected with the title, and therefore she could not lease the franchise. Why not? In all parts of the world these franchises are in the hands of private individuals and dealt with for the purpose of trade and profit. If the city retained the immediate control, she would have to deal with them by the hands of individual agents, then why not by the hands of an accountable lessee? The term of lease is not a long or unreasonable one in the lifetime of a municipal corporation, and particularly of a town whose existence had just commenced, which then used the only possible means in its power to carry into effect and exercise the trust confided to her. But if there be any doubt as to the power of the corporation to lease the franchise, then that doubt is dispelled by the confirmatory Act of 1861.
II. Againstour proposition, that there was no offer on the part of plaintiff to do equity by rendering back the expenditures of the defendant, the respondent rests upon the previous opinion of this Court, overruling the demurrer.
To this we answer--1st, that the question was not argued on the demurrer, or brought to the notice of the Court; 2d, that after demurrer, and at all times and in any Court, it is perfectly allowable to move to dismiss the bill for want of equity.
III. It is insisted by respondent that the Act of the Legislature of May 15th, 1861, did not confirm the ordinances in question. Their citation of authorities as to the construction of statutes is vain and inapposite. They seem to have forgotten the rule, which holds that what is plain and unambiguous is not the subject of construction. The act says " the ordinances are confirmed." Can the Court say that some ordinance is not confirmed? Has the Court power to go behind and against the words used by the Legislature, so as to determine that the Legislature did not intend what it said it intended?
It is also urged that the Legislature had not the power to confirm. Under this Act of 1861 we claim only the ratificationof the lease of the wharves. This has already in this case been decided to be a public trust, or in the language of the Court in Hart v. Burnett, a public trust connected with the title--the title being in the city. The only difference is, that in the one case the property was land, in this a franchise; both are alike property, subject to ownership. Then the power of the Legislature over all municipal property wherewith a public trust is connected has been settled by this Court. (Payne & Dewey v. Treadwell , 16 Cal. 225; San Francisco v. Beideman , 17 Id. 443; Hart v. Burnett , 15 Id. 616.)
IV. It is said that the Act of 1861, so far as it ratifies the ordinances in favor of Carpentier, must be treated as a private act, and can therefore be relieved against in a Court of Equity, and various authorities are cited to sustain this proposition. If the Court will examine the authorities, it will find that all the cases rest upon the fact that the interests of third persons are affected, and that consequently the Court gives relief. In England the Courts of Equity, as they term it, relieve against it, at least there have been two or three cases of the kind. In the UnitedStates the same decision would be made, on the ground that the Legislature had no power to take away the property of one private individual and give it to another; the law would be deemed invalid because unconstitutional. But here we are dealing with a municipal government, which is created and can be destroyed by the legislative breath; which can be reformed, remodeled, reorganized, limited, and constrained, or enlarged and liberated; its powers taken away, or compelled to the exercise of much vaster powers than it has--all at the beck and nod of the legislative will.
Here, then, on this subject of public trust, this wharf franchise of the municipal corporation, the Legislature has exercised its will and power and no one can gainsay it.
JUDGES: Field, C. J. delivered the opinion of the Court. Cope, J. and Norton, J. concurring.
OPINION
FIELD, Judge
The plaintiff filed a petition for a rehearing, upon which Norton, J. delivered the opinion of the Court. Cope, C. J. * concurring.
The plaintiff asks a rehearing in this case, upon the ground that when the case was before this Court on a former occasion it was decided: first, that the action could be sustained without an offer by the plaintiff to do equity; and, second, that although the transfer to the defendant was void, it was a proper case to ask the transfer to be set aside by the equity powers of the Court, and that these decisions have become the law of the case, and cannot now be reversed.
In the former decision the complaint was held to be sufficient, upon the ground that the transfer was absolutely void. Nothing was said as to whether it would have been sufficient without an offer to do equity, if the Court had considered the transfer not void, but only voidable. Afterwards the opinion was modified, by reserving for future revision the question of the validity of the contract with Carpentier. This was a reservation of the whole question as to its validity, as well whether it was voidable as whether it was void. The question whether or not the transfer was voidable being thus withdrawn, no decision can be inferred as to what would have been necessary to render the complaint sufficient, in case the Court should consider the transfer only voidable.
It may be argued that when this question was withdrawn from the opinion, there was no ground specified in the opinion upon which the decision was made; but if this may be so, it does not follow that the decision necessarily involves a determination of a question which was not only not mentioned, but the basis for which was withdrawn from the opinion; and so, although it was said in that opinion that it was a proper case for equitable relief, considering the transfer absolutely void, yet when the ruling that the transfer was void was withdrawn from the opinion, the remark that it was a proper case for equitable relief became merely obiter, and decided nothing. At most, it could be considered as only saying what would be the opinion of the Court in case, upon a revision of the question on some future occasion, the Court should hold the transfer void.