The San Francisco call. [volume] (San Francisco [Calif.]) 1895-1913, 1896-07-13

90 tho rssidue of the pueblo lands which by
the decree of Justice Field in the case OF san
Francisco VS.. United States "a sawyer 300 IL
hold in trust ssfor the use and benefit of the
inhabitants OF the City OF San Francesca. II
has frequently been de cided by the supreme
Court OF California that the tenure Dy Whicn
the lands nnebio lands were held was OF a
fiduciary nature and could mol De anenateo
except in accordance with the trusl, anu II
was for the Legislature to decide how the trust
should be performed" (San Francisco VS.. Cana
van, 43 Cal. 1861
The Legislature has never passed any act
authorizing the sale of the whole or any part
of the residue of the pueblo lands OF tnIs Clty
and county, unless such power mas 9eSn Con
ferred by the act approve March ~ 30
fStatutes 1894 D. 7l11 This act, IN my
opinion, confers no such power. True IL au-
thorizes and requires the Board OF super
visors, "under such rules ana ;o actio
they may prescribe, to sell at pubic auctlony
to the highest and best bidders, all OF sara
Channel street and Mission creek from Ninth
to Eighteenth streets, except sucn Portlons
there OF as may be required for the purposes
OF the sewer and street. therein proNe6ueu Ior.
This act was considered by the supreme
Court in San Francisco VS.. Ellis, o4 Cai. -,
and the record of this case shows eoncIuslVely
that the title authorized by the act 10 pc US
posed of was the title OF the STATE ana NOT tne
title of the City to the residue OF lts pueDlo
lands
The Legislature by the'act made the Board
OF Supervisors the medium through Wnicn lne
State would sell land then supposed TO be
owned by the State Not until the decision OF
the Supreme Court of the United states, on
DecemDer Il, 1891, IN the eetsc VI a
Knight VS.. United Land Association tl4Z Y. ..
161) and others, adjudglng the Won neLcnt
survey of December 1S, 1883, to be the correct
survey of the pueblo OF San Francisco was IL
known that these lands did not belong TO the
State.
The intention of the Legislature in the
passage of this act ascertained from contem-
poraneous history, was to sell land that be-
longs to the State, and not to grant power TO
sell any part of the residue of the pueblo lands
OF the City. The act cannot now be made to
apply to the pueblo lands when 1t was not the
intention of the Legislature that it should ap-
ply to them. 1t must then necessarily follow
mat there is no law authorizing the board 10
sell any OF the residue OF the pueblo lands OF
the City, and as the land put up for sale at
auction by authority of the board and bid In
Dy Mr.. Center was q part OF the residue of such Z
pueblo lands that the authorization for such
sale given by the board was void. The author
1zatIon to sell being void, the sale was void
The board not having had the power to
make the sale had no power afterward 10
ratify the sale that was made, because it could
only ratify that which ii had the power to do.
II Mr.. Center should pay to the City the
amount OF his bid and receive deed from the
Mayor, In my opinion, he would nor, in the
language OF the code, receive "a title free from
reasonable doubt" but would in fact receive
no title at all.
For these reasons a suit for specific perform
anee, in my opinion, cannot be maintained by
the City against Mr.. Center as suggested in the
communication of the Mayor.
Before any valid sale of the residue OF the
pueblo lands can be made IL will be necessary
TO have an act authorizing any such sale
passed by the Legislature.
HARRY 7. CREswELL,
Attorney and Counselor.