The San Francisco call., 1910-09-11
DECISION MAKES
Tunnel ASSURED
TO NORTH BEACH
Superior Judge Trout Sweeps
! Aside All Technical Objection
to Improvement Project
Supervisors Have Full Power
to Order Roadway Bored
Through the Hill


Stockton street tunnel was sustained In
every particular In an exhaustive de-
cision rendered yesterday by Superior
ldge Trout II is ruled by the. court
- that the board Of supervisors did not
ceed its authority in ordering the
street tunncled; that the charter in
EeneraI terms permitted of such work
being done by the district assessment
plan. and that property owners within
The district can not escape their share
- of the cost.
The decision .Nas incident TO the sus-
tanning Of the demurrer Of the city 10
Ths complaint Of Louis Gassner, who
owns property ia Stockton street, near
9sucter. and who sued the city author
sites asking for an injunction per-
.-llla nenrly restraining the construction
-'of the proposed tunnel
>. C5assner, who was represented by At
.1orney ONn Berry. aVerred that the
supervisors lacked power TO assess
;. .2roperty owners for the work; that
stockton street has been improved and
accepted; that the supervisors had
. abused their discretion; that the tunnel
.'7vould cost 100000 and do the owners
:ct realty in the assessment district
actual damage in the sum Of 100000
and that the action Of the city would
becloud the title TO the land in the
~ 1icinity.
NOMPREHENSIN 4 DECISION
The demurrer which Judge Trout
. yesterday sustained vas presented and
argued by Attorney Theodore J. Savage,
representing the Mob HIN tunnel asso-
citation, and by Assistant City Attorney
Jesse Steinhart The plaintiff was given
81 fNe days within which 10 amend his
complaint but in view of the judges
comprehensive canvsssing Of all the
points involved lawyers say that il is
difficult 10 see how The pleading can be
, = amended 50 as 10 cure the defects
pointed out in the demurrer.
. kIudge Troutts decision means that
p. al the steps so far taken are adiudged
10 have been valid, so far as the su-
: perior court is concerned" said Attor-
ney Savage. I am satisfied the su-
preme court viii sustain Judge Trout,
II an appeal is taken by the plaintiff.
: The only Questions involved are law
questions. and the demurrer raised
:every possible point of law that could
p. lbe considered applica BILE. I do not see
how tile plaintiff can amend his COM
plant so as 10 make il effective.
-! OF course, everybody interested in
this project is very much elated by the
judges ruling. We had been awaiting
; khe decision with much anxiety, but we
had the greatest confidence in Judge
questions involved. He is very thor
-.ough in matters OF this kind. and 1
knew that he was studying the prob
lem presented 10 him exhaustively.
That tunnel is seing 10 be built, and
before very long the dirt will be
nying."
=. Judge Trout in his opinion compM-
mented the attorneys in the case
SALIENT POINTS COVERED
Following are the salient portions of
! the decision:
Il is urged by pIaintih that-if the
=. contemplated work and the tunnel
ia question be considered E street
-. Improvement, and II authorized by
the charter, then the expense
thereof must be borne by our city
" and county in accordance with sec
lions s and % Of chapter of said
These two sections provide in
q, substance that when any street or
. portion thereof has been or shall
be fully constructed TO the salts
fTction Of the board of public
=; Works and of the supervisors and
is IN good condition throughout
80 and sewers. gas pipes and water
:: same shall be accepted by ordi-
nance and thereafter such street
or portion thereof shall be kept in
repair and improved by the city
and county and the expense in
p, CURED shall be paid out OF the
But / incline to the view that a
reading OF chapter 2 shows that
st IS intended TO cover what might
be termed the original improve
nent Of the street; that is, the ini-
tial grading, paving, sewering;
. Of the required work is done and
me street accepted, the property
owners shall not be required to do
= IN other word| we feel that a
reasonable reading of this chapter
justiies the construction that the
language referred TO relates eX-
elusively 10 the kind of work pro-
wided in said chapter and that it
should have no broader construc-
tion than this: that when the street
IS once graded, paved, sideWalked,
severed etc, at the expense OF the
called upon to do similar work
II we so construe the language of
chapter >, then the character OF
work covered by chapter may
be done by the assessment district
plan" and both chapters be given
effect
The apparent object of this work
IS 10 secure for the thickly settled
North beach district" of our city,
desirable outlet toward the busi-
thereby adding to the benefits OF
the merchants and the people Of
bof districts.
WISE TO ORDER WORK
Considering the topography OF
san Francisco, the extent of what
IS known as the North beach dis
trict," the fact that egress and in
greSs thereof are cut off by hills
on the west and on the south. con-
sidering the area Of the business
district south of the range Of hills
Of which, at this point, California
street is the ridge, and consider
ing the special benefit that would
evidently follow from tunnel COM
fnunicstion between the said dis
Irlcts, st seems wise not only to
order that the proposed work be
done. but also to define z district
which could well be said TO be spe-
cislly benefited by the proposed
: work and which would have so
large an area that the assessment
imposed thereon to cover the cost
OF such work would amount to a
frlnlng sum as against each indi-
hlousl property owner.
As the supervisors have the un-
questioned powers to change the
grade OF Stockton street in the Dor
tions mentioned, why does 1t not
follow that the lowered grade may
be legally Joined by means of
- tunnel. thereby eliminating the in
terVening hin in a way, and saving
The additional cost and serious
damage that would result from
lowering the grade of Stockton
street between Bush and California
The supervisors are authorized bv
the charter 10 order 10 he done
any and all street work and street