Los Angeles herald., 1892-01-31
FIRST BLOOD.
"A Point Against Temple
Street Property Owners.
Judge Shaw Overruled Their
Demurrer Yesterday.
He Holds that the City is Acting
Lawfully.
An Elaborate Opinion Presenting
Some Cogent Features of the
vrooman Act on Street
Grading.

Judge Shaw, of the superior court,
yesterday filed an important opinion in
the celebrated suit of the city of Los
Angeles against E. M. Linde ct al.
There are about 15O defendants in the
action, comprising abutting property
owners on Temple street. between Grand
avenue and Custer street, and the suit
was brought by the city preliminary to
materially reducing the grade on the
thoroughfare mentioned under the Vroo-
man act. AS the new grade will make
it necessary for residents on certain por-
tions of Temple street to use balloons in
reaching their house doors from the
street level, the property owners are
naturally making a very able bodied
kick.
A demurrer was filed by the plaintiffs
in which they made general statement
OF their side of the case. Yesterday
Judge Shaw handed down an opinion in
which he overruled the demurrer. The
judge, after reciting the grounds of the
demurrer, says:
The objection is made that the COM
plant shows that the city council un-
established grade of several different
streets. Under the provisions of the
charter Cart. 14) / think when the
council proposes to change the grade of
several streets at a time that each
street must be the subject of different
ordinance. But, as l construe the COM
plant as amended, it alleges that each
street was the subject Of a separate
ordinance, so that in that particular the
proceedings were valid.
The same objection is made to the
resolution of intention to do the work
necessary to make the streets conform
to the changed grade. This part OF the
proceedings must be taken under the
act of March 5, 1885, commonly known
as the "Vrooman act" This being a
general law, the charter must yield to
it, except on those points where the
two do not conflict. can not find any
language in this act which requires that
the council shall proceed separately
with relation to each street. Un the
contrary, it seems to me that the act is
carefully worded to avoid any such con-
struction. Upon this question the case
of Mahoney ys. Braverman, 81 CAL, 565,
cited by the city attorney, is precisely
in point, and sustains the complaint.
therefore think the proceedings were
valid in that particular also.
The next objection is that the ordi-
nances by which the established grades
of the streets in question were changed
are void because they state the grade
show what the grade is to be at the in
tervening portions of the streets.
In support Of this objection the de-
PENDANTS cite the case Of Dorland vs..
Bergson, 78 CAL, 637. But, although
the language of the concluding portion
of the opinion does apparently sustain
the point, yet it appears that in that
case there was no ordinance which at
tempted to establish the grade of the
street itself. The ordinances as stated
in the opinion purported to establish
the grade of the crossings only, and it
seems to have been contended that in
such a case no ordinance purporting to
deal with the street in question was
necessary. If this were true the estab
lishment of the grade of crossing with
out reference to the streets would be
all that would be necessary, and where
the grades of two parallel streets were
established such grade would operate
perforce to fix the grade of all cross
streets between them.
That this is not the law seems to be
all that the case was meant to decide.
On the other hand, in the case of CAT
ney vs.. San Francisco, 72 CAL, 152,
cited for plaintiff, it is expressly de-
cided that an ordinance fixing the grade
of street, in words substantially the
same as those alleged in the complaint,
is sufficient. This case is not mentioned
in Dorland VS.. Bergson. l do not think
that Dorland vs.. Bergson was intended
to have the effect of overruling the case
OF Gafney VS.. San francisco, and upon
the authority Of the latter case, hold
the complaint in this respect sufficient.
1t is further objected that the pro-
ceeding is one provided for by the city
charter, and that jurisdiction can not
be conferred upon court by charter,
but that it must be done by law.
do not think it necessary to decide this
point. The proceeding, as understand
it, is under title VII OF the code Of civil
procedure, and the jurisdiction invoked
is that conferred BY that title Of the
code.
so far as any provision Of the charter