Los Angeles herald., 1892-06-28
IT WILL Be OPENED,
South Broadway Obstruction-
lists Knocked Out.
Judge Clark Settles the Injunction
Case.
The Suit Brought by j. b. Lankei'
shin Finally Determined.
Points OF the De-
cision.

JuuBo OlhIk youUoIu0y uAouOAvOA su0
temporary injunction by which certain
property owners have been successfully
retarding the opening of South Broad
way, and that Improvement will prob
ably now 60 on. The suit was brought
by ]. B. Lankershim and others against
Los Angeles city. In the course of his
opinion, the court thus disposes of the
points in the case:
1. The question Of the expediency of
q public improvement is legislative and
not judicial. The power to determine
such questions rests in the legislature or
in such local authorities az the legisla-
ture may have intrusted Herewith.
(Lent vs. Tillson, ~ CAL, 404.) 1t fol-
lows that the question whether public
convenience demands that Broadway
shall be opened or extended to Main
street, as proposed, is for the city council
and not for the court to determine. 1t
is clear thst in deciding this questio n
there was no such manifest abuse of
discretion as to warrant an interfer-
ence by the court, and that the affida-
Wits OF citizens fled that Tenth street
and the other :cross streets into Main
street are sufficient to accommodate
travel, and that no public necessity ex-
lists for the proposed public improve
ment must be disregarded.
2. From the afiidavits it appears that
prior to June, 1857, the map of the
Ord's survey of city levels was adopted
as the official map of the city, and on
said map Fort street is delineated in q
straight line eighty feet wide from First
street south to Pico street. Said street,
however, was never opened, travelled or
used by the public south OF Tenth
street, and has, until 1884, been in the
possession of various grantees under q
deed from the city to 0. w.
Childs for valuable consideration. and
such grantees have improved the same
and have erected valuable buildings
thereon. 1t further appears that on
September 2S, 1891, and before the
passage Of ordinance No. 1867, being the
ordinance complained Of, the city coun-
Gil passed an ordinance vacating and
abandoning said street between said
points. Admitting that the mere
proof of the adoption OF said
map is sufficient proof of the
dedication of said street. and that or
dinance No. 1868 is nullity because not
preceded by q resolution of intention
and posting aad publication of notice
az required by the second and third Sec
tions of the act of March 6, 1889 (stat-
utes of 1889, p. 70), all of which con-
slider doubtful. Still I am of opinion
that said ordinance No. 1907 is not
thereby rendered invalid.
8. Plaintiffs fail to furnish any ad-
ditional proof that the street superin-
tendent failed to cause notices to be
posted as required by section 3 of the
act of 1889, supra; but on the contrary,
additional proof is offered, namely, the
affidavit of the poster, that such notices
were in fact posted. Plaintiffs do
show, however, that at the
time the city council assumed
Jurisdiction no sufficient affidavit of
posting was on file. This was not ma
terial, as jurisdiction depends upon the
fact of service and not upon its proof.
Estate of Newman, rs CAL, 220; HELEN
vs.. Heilbron, filed June A, 1892.
4. The resolution authorizing the
mayor to contract with the Times Mir
ror Co. for the publication in the Times
of all ordinances, resolutions, notices of
intention and all notices Of whatever
kind or nature required by law, for one
year from and after June:
2S, 1891, and the contract made pursu-
ant to such authority has been held by
the Judge of another department of this
court to be sufficient compliance with
the provision of the statute requiring
the council to designate the paper in
which publication shall be made, and
that ruling should, think, be followed.
Upon the whole case as presented
upon the affidavits and proceedings, /
am of opinion that the temporary in
junction should be dissolved, and it is
go ordered.