City of Oakland v. Burns ( 1956 )

McCOMB, J.

Plaintiff appeals from a judgment in favor of defendants Stelzner and McCoy in an action for damages and an injunction to restrain the operation by defendants of limousine or bus service from and on the Oakland Municipal Airport (hereinafter called the airport) and their solicitation on the airport of patronage for said services, allegedly in contravention of certain ordinances and regulations of the city and its Board of Port Commissioners (hereinafter called the board) and of the exclusive license and concession granted by the board for said services at the airport to Fialer’s Limousines, Inc. (hereinafter called Fialer’s).

Plaintiff owns the airport and operates it through the board in its proprietary capacity. Earhart Road is the principal roadway within the airport passing the main buildings, among which are the International Terminal Building, hangars and installations. Earhart Road has been paved and provided with curbings by the board. Since 1927 the main part of this road has been used generally by the public with the knowledge and without objection from the board, which at no time took any action to terminate such general use.

Earhart Road has not been dedicated to the public use in any formal manner. An unnamed side road of Earhart Road along the southwesterly side of the International Terminal Building and a parking and turning area in back of said building has been used since 1947 for ground transportation service for passengers of nonseheduled airlines, and vehicles transporting these passengers for hire had access to this area only by revocable permits of the board and its agents. This area has not been dedicated to public use either formally or by implication.

An agreement was entered into between plaintiff in its proprietary capacity and Fialer’s, granting the latter an exclusive license for certain transportation services for hire commencing November 1, 1951. This agreement the trial court found valid except insofar as it purported to accord Fialer’s exclusive rights with respect to the part of Earhart Road found to be a public street.

The following ordinances allegedly violated by defendants were found to be valid ordinances regulating the use of airport property held by plaintiff in its proprietary capacity but not applicable to the public part of Earhart Road:

(a) Port Ordinance Number 641, which, among other things, prohibits the use of the airport as a base for the carrying for hire of passengers or for any other commercial purpose without license from the board or its port manager;

(b) Port Ordinance Number 786 prohibits solicitation of patronage for any taxicab, limousine or airline bus service within the airport or entering the airport for such purpose except when authorized by contract;

(c) Port Ordinance Number 835, which added to Port Ordinance Number 812, section 2.1 prohibiting the operation of any vehicle or bus from the airport unless with the approval of the board and on its conditions and terms;

(d) Section 106 of Council Ordinance Number 3083 C.M.S., which prohibited the operation or leaving of a vehicle on private property without express permission of the owner.

Since November 1, 1951, Dialer’s, under agreement with plaintiff, had been the only one entitled to solicit patronage for or to engage in the transportation of persons on or from the airport in airline motor buses, taxicabs or limousines except that defendants might operate on the portion of Earhart Road found by the trial court to be a public street.

Defendant Stelzner provided transportation with one limousine from March 21, 1946, to January 8, 1953. Defendant McCoy provided transportation with one bus from 1947 to January 1953.

Prior to November 1, 1951, defendants used the parking area in back of the International Terminal Building in operating their vehicles. On that date their permits were revoked and thereafter they used only the portion of Earhart Road which the trial court found to be a public street.

Both defendants were duly licensed by the city to operate a limousine carrying passengers for hire on the public streets of the city. On January 23, 1951, defendant McCoy was granted by the Public Utilities Commission a certificate of public convenience and necessity authorizing him to operate a passenger stage service for transportation of nonscheduled airline passengers from the airport to certain points in Oakland, San Francisco and Treasure Island over the most appropriate streets between the points authorized. Defendant McCoy is under a duty to provide ground transportation service in accordance with the certificate obtained.

Within a year prior to the commencement of the action defendants had not committed any of the acts prohibited in the above-mentioned ordinances except on the portion of Earhart Road which the trial court determined to be a public street.

Plaintiff contends that no part of Earhart Boad is a public street but that in its entirety it is a private road within the airport. This contention is correct. Plaintiff has all power over Earhart Boad so far as the same is located on the airport property held by plaintiff in its proprietary capacity. Plaintiff is right in its contention that the plaintiff Board of Port Commissioners lacked power to dedicate by implication any portion of Earhart Boad to a public use.

Since the board lacked power to dedicate Earhart Boad to a public use in the manner found by the trial court, to wit, by implication, it is unnecessary to consider here whether an implied dedication could be founded in any case upon evidence showing nothing more than a permissive use of a road by the public for access purposes, which the trial court found “dead-ended” within the premises of the owner.

It is the general rule that a municipal corporation, unless specifically restricted, may as well make an actual offer of dedication of land owned by it as a private owner (19 Cal.Jur. (1925) § 384, p. 23; cf. City of Oakland v. Oakland, Water Front Co., 162 Cal. 675, 680 [124 P. 251]) and the manner in which such offer can be made will be the same in both cases (16 Am.Jur. (1938) § 13, p. 356) except insofar as for a municipal corporation, the mode is restricted by law, constitution or charter.

It is likewise the rule that the Legislature may prescribe the method by which the power to sell, lease or otherwise dispose of property shall be exercised and, if applicable, the method so provided must be substantially followed. (Cf. County of San Diego v. California Water etc. Co., 30 Cal.2d 817 at 823 [2] [186 P.2d 124, 175 A.L.R. 747]; Miller v. McKinnon, 20 Cal.2d 83 at 88 [124 P.2d 34, 140 A.L.R. 570], where Mr. Justice Carter, in quoting from Los Angeles Dredging Co. v. City of Long Beach, 210 Cal. 348, 353 [291 P. 839, 71 A.L.R. 161], said: “It is . . . settled that the mode of contracting as prescribed by the municipal charter, is the measure of the power to contract; and a contract made in disregard of the prescribed mode is unenforceable.”)

The same principle applies to voluntary dedication of municipal property to be a public street.

In the instant case, an exclusive mode of opening public streets in the port area is prescribed in section 218 of the Oakland City Charter, which reads:

“Sec. 218. Whenever the Board shall determine that it is necessary to open, close, improve, alter or vacate a public street, or part of a public street within the ‘Port Area,’ a certified copy of the resolution so determining such necessity shall be filed by the Board in the office of the City Clerk, whereupon the City Manager and the City Council shall initiate and carry to completion the proceedings necessary to effect said proposal.”

The word “whenever” indicates that the mode prescribed is exclusive, while the repeated use of the word “shall” in describing the procedure shows that such method is mandatory.

Section 217 of plaintiff’s charter prevents it or the council from performing any of the acts mentioned in section 218 without the cooperation of the Board of Port Commissioners.

It is undisputed that Barhart Road has not been opened as a public street in the manner prescribed by section 218, supra. If the board had the intention and made the implied offer to dedicate Barhart Road as a public street without substantially following the procedure outlined in section 218 of the charter, such offer would have been invalid and ineffective. Should it be argued that the creation of an easement of a public street by adverse user by the public as mentioned above without an actual intent or offer to dedicate by plaintiff or any of its agents is not the opening of a public street by the board or plaintiff but an adverse imposing of such burden to which section 218 does not apply, the answer is that such rights would be by prescription and that no title by prescription can be acquired against any municipal corporation or subdivision of the state in land reserved for or devoted to some specific public use. (Civ. Code, § 1007^*; Henry Cowell Lime & Cement Co. v. State, 18 Cal.2d 169 at 172 [2] [114 P.2d 331]; Bartholomew v. Staheli, 86 Cal.App.2d 844, 857 [195 P.2d 824] [hearing denied by the Supreme Court]; Reclamation Dist. No. 833 v. American Farms Co., 209 Cal. 74 at 81 [6] [285 P. 688].)

The use as an airport of the property here involved is a public use, which excludes the acquisition of rights by prescription. This is evidenced by the fact that section 1238 of the Code of Civil Procedure, subdivision 20, lists airports as one of the “public uses” for which the right of eminent domain may be exercised.

There is likewise no merit in the contention of defendants that plaintiff cannot rely on the foregoing rules of public law in contesting their right to use Barhart Road as a public street because the municipality defends its right to make the exclusive contract with Fialer’s on the ground that it operates the airport in a proprietary and not in a governmental capacity.

The city claims the right to make an exclusive transportation contract at the airport because it appears reasonable that the power to acquire and operate a proprietary function implies all necessary power to operate it efficiently. When a governmental entity is authorized to exercise a power purely proprietary, the law leans to the theory that it has full power to perform it in the same efficient manner as a private person would. (Ex parte Houston, 93 Okla. Crim. 26 [224 P.2d 281 at 292 [4-7]]; Miami Beach Airline Service v. Grandon, 159 Fla. 504 [32 So.2d 153, 155, 172 A.L.R. 1425].) In the latter ease this principle was used to uphold an exclusive contract of the same kind as that of Fialer’s.

However, it does not follow from the recognition of this principle that a municipality acting in a proprietary capacity must be allowed the powers necessary to perform it efficiently and to be free from restrictions which impede its efficiency that it must also be free from restricting provisions which do not impede its specific function, like the one restricting the manner in which plaintiff may open public streets over its lands, or that it cannot rely on rules advantageous to it such as the one protecting it against the acquisition of prescriptive rights by third parties.

Section 218 of the Oakland Municipal Charter does not contain any restrictions indicating that it does not apply to opening of streets over lands devoted to a public use of proprietary character, and the rule excluding acquisition of prescriptive rights against municipalities is likewise applicable.

Finally, the certificate of public convenience and necessity of defendant McCoy orders him to conduct his operations “over and along the most appropriate public streets and highways between the points authorized.” Defendant McCoy urges the superior jurisdiction of the Public Utilities Commission over the bus and limousine services on Barhart Road (Cal. Const., art. XII, § 23; Pub. Util. Code, § 1003) on the basis only that Barhart Road is a public street.

The certificate does not contain any finding that Barhart Road is a public street or any decision that the authorized service “from the Municipal Airport” must take place over Barhart Road. Defendants do not contend that the Public Utilities Commission has any power of regulation over private roads and no constitutional or code provision gives it such power. (Cf. Kuhn v. Kerry & Hensler, 91 Cal.App.2d 805 [206 P.2d 1] [hearing denied by the Supreme Court].)

People v. County of Marin, 103 Cal. 223, 230 [37 P. 203, 26 L.R.A. 659], is not here in point. In the cited ease the county of Marin had accepted an offer to dedicate, and the court held that the acceptance was valid even though the statutory procedure was not followed. (People v. County of Marin, supra, p. 229.) However, in the instant case, our decision does not limit the power of the public or the legislative body to accept an offer to dedicate. It merely holds that in dedicating public property there must be substantial compliance with constitutional, statutory and charter provisions. The decision in People v. County of Marin is not overruled.

The judgment is reversed with directions to the trial court to amend its findings of fact and conclusions of law and to enter a judgment in accordance with the views expressed herein.

Gibson, C. J., Shenk, J., Traynor, J., Schauer, J., and Spence, J., concurred.

* Section 1007 of the Civil Code reads in part as follows: “. . . but no possession by any person, firm or corporation no matter how long continued of any land, water, water right, easement, or other property whatsoever dedicated to or owned by any county, city and county, city, irrigation district, public or municipal corporation or any department or agency thereof, shall ever ripen into any title, interest or right against such county, city and county, city, public or municipal corporation, irrigation district, or any department or agency thereof or any agency created or authorized by the Constitution or any law of this State for the administration of any State school, college or university. ’ ’