The San Francisco call., 1895-05-19
improvements on the Lincoln
School Lots Belong to
the City.
LEssEEs PREPARED TO FIGHT
Claim That the Advice of the City
and County Attorney Is Not
Founded in Law.

at the corner of Fifth and Market streets.
leased in 1875 by the Board of Supervisors
for a period of twenty years. The lessees
made improvements valued at 5000 900, un-
der the terms of an advertisement calling
for bids from the Board of Supervisors,
which advertisement provided that at the
expiration the improvements should re-
vert to the lessees. No stipulation to this
effect, however, appears IN the lease itself.
The twenty years lease will expire Septem-
ber 1, and by an act of the Legislature the
Board of Education assumes control of the
property. Hence arises the question as to
ownership of Improvements.
The lessees claim that the City is bound
by the conditions of the advertisement.
Mr.. Creswell, however, takes a different
view of the matter, holding that the les
sees have no property rights of any kind in
the improvements that will survive the ex-
piration of the term OF the lease. The
opinion in full is as follows:
To the Honorable the Board of Education of the
City and County of San Frdncisco-GENTLEMEN:
1 am in receipt of your communication of
April %, 1895, regarding the ownership of the
Improvements on the Lincoln School lot, On
Market and Fifth streets The land on which
the improvements in question were placed was
leased by the Board OF Supervisors under the
authority of an act of the Legislature, entitled,
of the City and County OF San Francisco to
lease a school lot in said City and County, and
to authorize the issuance OF school bonds for
the purchase of sites and erection OF school
buildings in said City and County," approved
March 80, 1874. Istats. 1894, p. s48.1
Did the Board of Supervisors have the author
ity under this act to include in the adver-
tisement required by the act any condition
relative to the improvements that might be
placed upon the land by the lessees thereof?
section 1 of the act requires the board to
odxy tica nnSal for
use of the land either as whole or divided
into smaller plats as the board should deem
for the best interests OF the City and County.
Having determined in which way the land
should be leased the only thing left for the
board to do before leasing the land was to
advertise for a period OF thirty days in two
daily newspapers in the City and County
soliciting sealed proposals for the use of said
lot. The requirement that an advertisement
should be made soliciting sealed proposals for
the use OF the lot does not mean that an adver-
tisement can be made soliciting sealed propos-
ais for the use of the lot upon the condition (as
provided in the ADVERTISEMENT that "all the
improvements that might be placed on the lot
unless purchased by the City and County shall
be removed at the expiration of the lease by
the owners thereof upon thirty days notice
being given by the Mayor of the City and
County, and if not SO removed prior to the
expiration of said lease the right shall be for
feited and the ownership of the same shall vest
in the City and County of San Francisco
The statute nowhere confers upon the board
the power to purchase for the City and County
the improvements which might be placed upon
the lot if the board should desire to do so; nor
does it give to the board the power to contract
with the tenant that he may remove these i'm
provements at any time after they shall have
become part of the realty; nor does 1t give
the board the right to burden the City and
County with any requirement concerning such
improvements.
The statute prescribes a mode of advertising
for said sealed proposals, and the mode SO pre-
scribed is the limit of the power of the board.
The incorporation into the advertisement
do, x1r1r4 Nf
ing the ownership of the Improvements was
wholly unauthorized.
1t necessarily follows, then, that the condi-
tions injected into the advertisement con-
ferred no rights upon the bidders, and no obli-
cations We're imposed upon the City and
County thereby.
The Mayor OF the City and County, by resolu-
tion of the Board of Supervisors, was author
lied and empowered to execute their losses on
behalf of the City and County "under such con-
dlt1ons and restrictions as may be by him con-
sidered necessary and proper to protect the
public interests" etc. The leases were exc
cuted under this authorization, signed by the
Mayor and lessees, and are silent regarding the
improvements that might be placed on the
land by the lessees during the term of the lease.
The act of March 80, 1874, does not give the
Board OF Supervisors the power to contract in
reference to the Improvements that might be
placed upon the lot in question, and no power
is given to the board to abandon any legal
right that might accrue to the City andsCounty
in consequence of the lease. The Mayor in
this matter could have no greater power than
the board. In the language OF the Supreme
Court of this State: ''lf an express power to
accomplish some result has been conferred it
will carry with it the authority to do such sub
sidiary acts as are incidental to the exercise of
that power" In the case at hand the power is
given to lease, and the surrender OF the legal
right to the Improvements so attached to the
realty as to become part thereof is not q SUBJ
s1diary act incidental and necessary to the ex-
ercise of that power.
Inasmueh as the lessees were charged with
the knowledge OF the lack of power in the
board, and that the Mayor had NO greater
power in the execution of the lease than the
board the conclusion that the omission was
purposely made is irresistible.
The lessees cannot complain that the condi-
dons of the advertisement herein treated of
were not embodied in the lease. If the board
had no power to contract in that regard the
lessees were charged with knowledge of that
fact, and have not been injured by the omis-
sion, because if the board did not have the
power to make the conditions the insertion of
them in the contract when executed, or at this
time, would not bind the City and County, and
would be of no benefit to them, and conse-
quently my conclusions are:
First-That the Board OF Supervisors have no
power to purchase the Improvements.
Second-That the Iessees have no right to re-
move from the land any of the fixtures placed
thereon by them in such manner as to be-
come part of the realty, and no power to sell
the same and give title thereto.
Third-That the lessees have no property
rights of any kind in the improvements that
viii survive the expiration of the term of the
leases. HARRY T. CREswELL,
Attorney and Counselor,
Dated May 1s, 1895.
When the above communication was
shown to the several lessees yesterday
afternoon they expressed great surprise at
the conclusions arrived at by Mr. Cres-
well. Some of them were indignant, and
gave expressions to their feelings in Ian
guage rather too forcible for publication.
Creswell's letter of advice to the Board
of Education was not expected before the
middle of next week, but its purport was
by far the most sensational phase of the
controversy thus far. The Iessees, with
out exception, were far from the opinion
that the City would take advantage of a
technicality in its dealings with them. The
subjoined interviews will tell how the
opinion was received, and also give an idea
Of the methods to be pursued in the future
by the lessees:
James McGinn said: "This is not
law, justice, equity, fair dealing or
anything else that usually obtains
in the transaction of legitimate bust
ness. am greatly surprised at the opin-
ion. suppose it means fight, For one,
l shall not give up my Improvements with
out struggle for what rightfully belongs
to me. We shall take the matter to the
Supreme Court, for while Mr.. Creswelps