Motion of Los Angeles Dodgers , inc to Dismiss — Page v. United States

Sn nS EIS POR Fert. SAE LN PIR AK MY BOR AO AO

7

SUBJECT INDEX

: PAGE

Opittions DElOW ..005c/cdsacecseces+sMoccoserecoserseserpeccssserecanonebeoevsasenensszeerascsedace 2

Jurisdiction |... jill sambiectsoonbinietsannieeeiateseern del 2

~ Questions PHESENted .........cccrrsqenseseszeoserebenstinnnge IRL ELLEN AT 2

Statement een sai scocadbiiiadiceietten me saldciictiiomaiil i saclesasdiencibedosantatinesteanies 4

* Argument..........-. ae ieee Sr a A SIRE sn EM esas 9

. . os o R

nF pe ae

The federal questions sought to be raised: by appellant are

unsubstantial -.......2..:..--2s-0-eee+- | Manees a gene <ejnetotcet 10.

A. Questions 1 and 2 conegrning the asserted usurpation

* by the California Supreme Court of the jurisdiction ae ie .:,

-.. the Los Angeles County Superior Court...............-+-. viel ry

iB. = 4 and 6 concerning the so-called. “public. pur-

poses’ ’ restriction and its contemplated removal... ardanaeedl ae *

_ ‘ta Question 3 concerning the utilization of tax moneys for

the asserted purpose’ of acquiring and ne land

to a private corporation. .........0....e-eceseeeeee: srerevervsvennsteevesveny 17

D. Question 5. concerning the asserted delegation to a

private corporation of the power to determine the’

errr reer ree

* -manner-in;which-tax- money is-to—be- spent. canst

Question 7 as to the asserted tax exemption....................

_ Appendix. Opinion of the Supreme Court of the State of

PIINIIIOA 5. ss cnoncsnnbariniainabeieavestuaiueceuvbiesmcoroneapacinvinbees Stes ADD. p.

on |

\ TABLE OF AUTHORITIES CITED

Ge Cases | © PAGE

Bowe v. Sco , 233 U.S. 658... Sak hadaeabeetneaadaddeaaa ae

Carmichael 4, \Southern Coal Co.,-301 U, S. 495... snidiaibaiconacadebeeaeiie 19

City ot Glendate vy, Crescenta Mutual Water Co, 135 Cal. App.

eee ME ARMAMENT SPC cee eee ee Onn ee 16

Fintontes tet, Dik. +. Com Cal MOU. 6. 18 1

Everson v. Board of Education, 330 U.S. Levine 19

Farmers and Mechanics Savings Bank v. . Minnesota, 232 U.'S.:

as Rape eee tak kata cca ne -_ . 16

Gasquet v. Lapeyre, 242 U. Tk eRe onweene. Sener eo aoa 10

Millsaps ‘olleze v. Jackson, ; Ce Se: SO

Missouri v. Dockery, 191 U. S. 165... -. see cas cca 22

* Neblett v. Carpenter, BOS U.S. 207 nn rereeernnes Sodieae cee 5

Platt, Estate of. 21 Cals 2, 43.02 coe ee eae

Radié Station WOW v. Johnson, 326 v. See a..13, 14, 18 .

Reichelderfer v. Quinn, 287 U. S. Sa ssontisiievensiiabien 17

—Schenebeck v. McCrary, 298 U. oe Seencemvvecgosoen

Standard Og v. Missouri, 224 U. i Saeeee fata 1 Baten ‘ 10

Walsh v. Columbus, Hocking Valley & Athens R. Co, 176 oy

ee ee ‘iacticindeceecdaailiiaden Cc 17

Wiley v. City of Berkeley, 136 Cal. App. 2d 1O..ncccocnnme :.

Gilie ve Baldwin, 166. U, S. 485.c.c0ece ae ae

~RULES icing

California Rules on Original Proceedings in Reviewing Courts,

JRule 36.6) seein Secocndineounnivts presueeccecsiens ; 14

. . STATUTES ;

California Code at Cri Pree e Ee: Tonic ceeecieccenseensnnin 14

California Code of \Civil Procedure, Sec. Se ea os

California Code of Civil Procedure, See. 05.2.0. fame 14

California Constitution, Ast. 1, Set. Gbicnncie LUA. encase Dorn 13

= : ¢

°

; | PAGE ;

California Constitution, et se hc avatar OO

California Health & Safety Code, Secs, 34200 et Sq... cece: 17

| California Health & ‘Safety Code, Sec. 34318...j.jrcssrssnsesuene 1

California Statutes of 1925, Pp. L116... lintels 4, 6

“California Statutes Of 1931, po 2626.cuccccneeneenenceninen cnn

California Statutes of 1935, p. 2360..ccctenprnentaeenne site”

California Statutes Oe No aticeectmeee emacs —

California Statutes of 1951, pr. 4992....2..1....cccccccereereserers MSO 4

ee Ge oe ee

Los Angeles City Charter, ‘Sec. Ss tactics: sae a

| iF, Los Angeles City Charter, Sec. 305 —-----i.:iccooniscseeeersere~ ee 4°

| ae Angeles City Charter, Sec. 385. er nane esiddeidinaainaiaideatalaniiaes eS ; 9

Los Amgctes City Clharter,, Sec. S90. --..siecexceoneecevneesinsesectsesseenee a

Sie United States Code, Title 28, Sec. 1257(2).... sii ceenaiedbiebaoncriods -

United. States Code, Title 28, Sec. 2103........-. areiiseeeaee — at

el eae ares y - ¥

United States Constitution, Art. 1, Sec, 10............. ceecsssecsereesees 14

United States Constitution, Fourteenth Amendment........14, 18, 22

!

Le Angeles City Charter, Sec. © eT ERLE OARS Oe , an

IN THE

Supreme Court of the United States

Oérobiin 2 3 ERM, “1939.

No. 155, So ae

Lovis KrrsHBAUM, ans

| . Appellant,

| eee. ee :

THE City oF Los ANGEWES, a municipal corporation,

THe City CounciL oF THE City oF Los ANGELEs,

Los ANGELES DODGERS, Inc., and THE Hovsine-

” AvTHORitY or THe City OF Los ANGELES,

i “

On Appeal From the Supesins Court of the State ‘of

California. ar

“MOTION OF LOS ANGELES DODGERS, INC.

TO DISMISS. .

po tee Angeles Dodgers: Inc., , respectfully moves

. that the above- entitled appeal be dismissed on the grounds

that (1) the appeal presents no substantial federal ques-

tion, and (2) the federal questions sought to be reviewed

were not timely “or. properly raised, or expressly passed

a below. . a"

~

. Opinions Below. | :

The opinion in’the Supreme Court of California in this

case (J.S. App. 1)* is reported in 51 Adv.<Cal. 425. ‘The

opinion in the Supreme Court of California in thy related

cases of Ruben v. City of Los Ainge “les and Kirshbaum v. -

City of Los Angeles is reported in 51 Adv. Cal. 801 and a -

copy thereof is attached hereto as an appendix, (hereinafter

referred to as “App.”). The opinion of ‘the Los Angeles

Superior Court in’ the related case of Airshbaum v. ‘Hous-

ing Authority (J.S: App. 17) is not reported.

Jurisdiction.

The judgment of the Supreme Court of : alifornia was

filed on January 13, 1959, and appellant's petition, for

rehearing was denied withsut opinion on February. Al,

1959 (Clk. Tr. v. 1).** Notice of appeal to this Court

was filed on April 30, 1959 (Clk. "Fe2- 1). “The juris-

diction of- this Court is sought to be invoked under ‘Section

1257(2).of the Judicial Code (28 U.S.C.°§1257(2)).

Questions Presented.

The City of Los Angeles and Los. haneke: 7

Inc., negotiated a contract under which the ‘City is to con-.

vey to the Dodgers certain property for. use as a baseball

stadium site, and the Dodgers are to convey to the City

certain other real property and to construct and maintain

certain public recreational facilities. “As required by the

City Charter, the contract was embodied in a municipal '

ordinance which the -City Council and. Mayor approved.

— *Throughout this Motion, references to pages of the Jurisdic-

. tional Statement are made as follows: “J.S. is and to pages of the

appendix thereof as follows: “J.S. App:

. ** Throughout this Motion, references to the volumes of ‘the tran-

script of the record, as prepared by, the ‘Clerk of the | court below,

are thade as follows: “Clk. Tm v. ..... a

r

‘>

‘ oo aan

Subsequently, the oe was approved. by a majority

of the voters at a referendary election.

Appellant thereupon brougac a taxpayer’s suit in the

Superior Court of Los Angeles County seeking to’ enjoin

the certification of the referendary. election upon the

- yyound'that the ordinance (and contract) would be invalid.

The, Superior Court granted a preliminary injunction. The

City then commenced the instant case as an original action

in the Supreme Court of , California ‘seeking a writ: of -

‘prohibition to restrain the Superior Court from enforcing .

its preliminary injunction or from taking any further steps

in-the injunction suit. The Supreme Court of California

ordered the issuance of a peremptory writ of prohibition

_as prayed for, holding. inter aha, that there were no un-

resolved issues of fact: that. therefore, prohibition would

lie under state law to test the validity of the contract; and ©

that the contract-as a whole was for a public porpose and

‘was in all respects a : ;

{n these circumstances. the principal question presented

is whether the Supreme Court of. California deprived ap-

_pellartt of due process_of law by ruling upon the validity

of the contract in the prohibition proceeding «nd grant-_

ing a writ to prevent the Superior Court from proceeding |

with the injunction action. |

The only other question argued by appellant is whether

he, as a Ci ity taxpayer, had rights in the property to. be

conveyed to. te Dodgers which were leecunbee by the

contract to coftney,,*

*This statement of (Questions. Presented embraces appellant's

(Questions: 1, 2. 4.and f#--the only questions as to which any argu-

ment is made in the Jurisdictional _ Statement. Appellant has left

unargued his Questions 3, 5 and 7. As will also appear in the

argunenty to follow, none of appellant's questions—with the pos-

sible exception of (Juestion 6—was timely raised.

t

—4+—

- Statement.

In October, 1957, the City Council of the Ci ity of Los

Angeles adopted and the Mayor: of the City approved

- Ordinance No. 110,204.. The ordinance provided that the

City “enter” into a certain contract with the Brooklyn

National League Baseball Club (now known as Los An-

geles Dodgers, Inc.) in form substantially as set forth in

the ordinance. Within the time prescribed by the Charter

of the City of Los Angeles, referendary proceedings with

reference to the ordinance were instituted. |

The referendary election. was held on June 3, 1958,

and resulted in a majority vote in favor of the adoption

- of the ordinance. Under the City Charter (§§ 284 and

305, 1925 Cal. Stat. 1116 and 1951 Cal. Stat. 4392, respec-

tively), it then became the duty of the City Council. to

declare the result of the election, thus. rendering the ordi-

nance effective as having been duly adopted by the voters.

_ Before this declaration was made by the Council, appel-

lant Kirshbaum: commenced a taxpayer’s injunction suit.*

In that action Kirshbaum secured first a temporary re-

straining order and then, on hearing, a preliminary (pen-

dente lite) injunction restraining the Council from declar-

ing the result of the election in question.

Following the granting of the preliminary injunction,

the City of Los Angeles filed an original proceeding in

the Supreme Court of California seeking a writ of prohibi-

tio! to restrain the Superior Court of Los Angeles County:

"from enforcing the. preliminary injunction or from taking »

any further proceedings in the injunction suit. It is this

. *Kirshbawm v. City of Los . Ingeles, et al. Los Angeles County,

Stipe rior Court No. 703,023. This isthe action referred to. by

appellant (J.S. 12) and herein as the ° ‘referendum case.’

prohibition proceeding which’ is the subject of the instant

appeal in this Court. ; | ce

The prohibition case waseargued before the Supreme.

Court ef California’on November 6, 1958. At the argu-

ment, it was stipulated that the records in two earlier filed -

and tried companion cases, Ruben .v. City of Los Angeles,

et al:, Los Angeles Superior Court No. 687,2 10, and Kirsh-

baum v. Housing Authority, et al., Los Angeles Superior

Court .No. 699,077,* might be deemed to be before the

court in the prohibition proceeding. Like the, injunction

suit first mentioned above (viz., the referendum case),

these latter actions were also taxpayer’s actions seeking. to 7

; enjoin the execution or performance of the proposed con-

tract between the City and Los Angeles Dodgers, Inc.,

- various grounds. As indicated above, these latter actions

had been tried and decided by the Superior Court** prior .

to the argument in the California Supreme Court: in- the

instant case. - Cr, es

- Follow! ing supplemental briefing, the Supreme Court of

California, on January 13, 1959, rendered its opinion and

judgment in the prohibition proceeding. upholding the:

.validity of the proposed contract and ordered that a-per-

emptory writ issue as prayed. Appellant's petition for re- *

hearing was denied on February 11, 1959. * Notice of ap-

peal to this Court was filed on April 30, 1959.

On May. y +p 1959, the. Supreme Court of Calttweia | is-

sued its* peremptory. writ of prohibition commanding the

°

*Rkeferred to by Appellant at J.S. 7 and 10 and sometimes referred

tu herein as the: ‘first Kirstbaum case” or “first Kirshbawm.”

**The decision of .the Superior Couft in those cases (J.S. App.

17) against the validity of the proposed contract was later reversed,

with directions, by the’ Califgrnia Supreme Court. Rubens. City

Los Amt, Kirshbaum ‘v. Housing Authority. (App. 1)

—o—

Superior Court to refrain frém ‘any further proceedings

‘in the referendum case, Kirshbaum v. City of. Los An- —

geles, and, such writ was served on the respondent Su-

perior Court and duly filed: On May 28, 1959, the

“City Council, being freed by the issuance of the writ from:

the restraint theretofore imposed by the(preliminary in- °

junction in the réferendum case, duly declared the ‘resylt

of the referendary election above mentioned, thereby ren-

dering Ordinance No. 110,204 effectivesand operative. See _

Los Angeles City Charter: §284, 1925 Cal. Stat. 1116, On

June.3, 1959, the propos¢d contract, in precise form as set

forth in Ordinance No. 110,204 (J.S. App. opposite p.

44), was duly executed by both parties thereto and is now

operative as Contract No. 27562 of the City of Los Aa-

-geles.

As is apparent both ira the venoed a fume the juris-

‘dictional statement herein, all claims of appellant stem

from various provisions of the contract under attack. The

salient portions of the contract were epitomized in the

opinion of the California Supreme Court, as follows:

“The contract, as set forth in Ordinance No. 110,-

204, ‘provides that, the City will ‘convey to the ball”

club 185 acres, more or less, of land ‘presently owned

by it-in Chavez Ravine: and will use its best. efforts

to acquire at a reasonable cost and conv ey additional —

land to make a total of about ‘300 acres, reserving, .

dmong other things, an oil drilling site not to ex-

ceed five acres, the location of the site to be mutually ; |

’ agreed upon by the) parties. . Title to 40 acres of the

300, to be designated by the ball club, is to be retained |

by the city for 20 years to assuré- performance by the

‘ball club od its obligations to provide and maintain

‘certain recreational facilities during that: period, after.

which title is to be conveyed to the club.

= =

“The city is to employ its best efforts to. have elimi-

nated or modified a deed provision restricting-the use .

_ of certain property acquired by the city from the Los

Angeles Housing Authority, provid that if the city

is unable. to. have the restriction altgred to permit the

use contemplated by the baJl club, he contract shall

be of no further effect. Upon onveyance of the

property to the club, existing public streets therein no

longer needed for street purposes will be vacated, and —

the city, upon demand of the ball.club, is to com-

menée’ proceedings to vacate such streets and deliver —

title to the club. Prior to passage of title to any of

the 300 acres, the city is to spend up to”but not to

exceed $2,000,000, in the manner to be designated by |

the ball club; to place such-property in a proper: con-

dition to conyey to the ball‘club. The city also is to

_ perform certain acts with respect to construction of

additional streets, rezoning the property, and obtain-

“ering funds from the county for access roadsy» |

“The ball club agrees fo construct on the” . havez

‘Ravine property, at. its expense, a modern baseball

stadium seating at least 50,000. people.’ ki will move

to Los Angeles ‘the pregent Brooklyn Na

franchise and ball team known as the “Dodgers.””

- Further, the ‘club will corivey to the city the land and -

improvements known as Wrigley Field, reserving the

right to use of the field until the’ stadium is completed,

conditioned upon: payment of a rental: to ‘be mutually

agreed upon.

: “Recreational faeilities costing not over $500,000

are to be ‘constructed by the ball club on the 40-acre : ©

portion of the-Chavez Ravine property referred to

above,-such facilities to be mutually agreed ‘upon prior

$

<,

ional [League

Pa

. a é

- to conveyance of the property. The club is to maintain

‘the recreational facilities on. the 40-acre parcel at an

annual cost of $60,000, and in the event the mainte-

nance does not amount to that much in any ‘year, the

club is to pay the city the difference between-$60,000

and the actual cost. The ball club is under no obli-

" gation to furnish personnel for the operation of ‘the

recreational facilities, and, with certain exceptions,

the city is to have control of them. © 2° .

““In addition, the agreement contains a number dof ,

recitals ‘of fact and declarations of policy to the gen-

eral effect that the contract will be beneficial to the

city and that the property which ‘the city now owns

and is to convey to the ball club is no longer required

for the use of the city.

“The city reserves all mineral rights in the Chaves

Ravine property, and it is to acquire all mineral rights

in Wrigley Field. The agreement directs that one-

half of the receipts, from the mineral rights is to be —

" placed by the city ina special trust fund and expended |

. solely for the purpose of “providing and maintainingy ©

- recreational facilities to promote the youth program of —

the balf cltib,- the location and type of facilities to be |

mutatally ‘agreed upon by the parties. The ball. club

has’ given formal notice to the, city that the club has,°

waived and_.relinquished all rights conferred lipon it

under these provisions and has assigned to the city

all. such rights. The provisions being solely for the

‘benefit of thé club, it could. properly waive them, and

there is no longer any reason to treat them as parts

of the contract.” (J.5. App. 46.) ,.

x ARGUMENT. Sie

The Statement as to Jurisdiction, asks this Court to re--

view a decision of .the California ‘Supreme Court uphold- —

ing the validity of a contract “between the City of Los -

Angeles| and the Los Angeles Dodgers, Inc.* In its main

aspect, ° -this contract is nothing a? than an agreement

for the exchange of real property. The only real ques-

tion: involved below: was "the validity of the contract under

state law, and on this point the Supreme Court of Cali-

fornia approved the contract emphatically, unanimously,

» and not once but twice.** Thus, although the baseball

| stadium referred to in@he contract is naturally’ a matter

of interest to the sporf§ world, the local controversy over

the validity of the contract does not present any important

s

or recurrent qn of federal law.

‘The attempt of ap llant to inject ‘tates questions into —

this case constitutes, in the main, a mere afterthought.

Neither of the two opinions of the Supreme Court of Cali-

fornia discusses any of the so-called federal questions

which appellant now belatedly seeks to urge upgn this

- Court. -With but one possible exception, the questions were

not timely raised, and, in any event, they all were and are

devoid of;substance.

e

*Only because the contract yeowvel wathoniaition by an orditiance ”

pagsed by the Cit¢ Council is there any possible basis for arf appeal

under Section 1257(2) of the Judicial Code. See Los Angeles City .

Charter §390, 1935 Cal. Stat. 2360; and’ see Los Angelés City ©

Charter’ $§281 and 385, 1931 Cal. Stat. 2626 and 1949 Cal. Stat.

3124, respectively.

**See, ini addition to the opinion below, the opinion ‘in Ruben Vv.

_ City of Los. Angeles,: and Kirshbaum: v. Housing Authority.

(App. 1.) -

)

¥

‘

. a

The Federal Giiiiiees Sought to Be Raised by

eae ‘Appellant Are ‘Unsubstantial. ©

Appellant “seeks to raise. seven separately-stated but

overlapping questions. For convenience, the argument in

= support of this Motion to Dismiss. will be organized: in

terms of ‘appellant’ s ‘seven. “Questions Presented.” as

A. Questions 1 and 2 ‘Concivning the Asserted Usurpation ;

by the California Supreme Court of the Jurisdiction of

the Los Angeles County Superior “Court.

Appellant’ S_ principal — in this Court i is that the

California Supreme, Court‘denied him due process of law

in that it “«hconstitutionally” interfered with or divested-

the. Superior ‘Court of Los, Angeles County of the latter’s

jurisdiction. . (J.S. 4, 19-28.) In,substance, this is.a claim

that th California Supreme . Court. eo its

power ufder the state Constitution “‘to issue writs of .

prohibitibn, . . . and al! other writs necessary or proper

to the complete exercise of its appellate jurisdiction.” Cali-

fornia Constitution, Article VI, Section 4.-

“But it is . . . well settled that it is for the Supreme

Court of a State finally to determine its own jurisdiction

and that of other local tribunals, since the decision involves

a construction of the laws of the State by which the court

_ Was organized.” Standard Oil v. Missouri, 224 U.)S.-270,

- 281. a enmeeae there is nothing in the ca

of the

Fourteenth Amendment guaranteeing. due process and

equal protection which converts an issue ‘respecting : the

jurisdiction. of a state court under the constitution ang

gtatutes of the State into anything other than a question

of -state law, the decision of which by. the state court of .

- Jast resort is binding upon this court.” Gasquet v. Lapeyre,

' 242 U. S. 367, 369: ek, Por

—ll—

. It follows that appellant's Questions 1 and 2 are unsub-

stantial. ‘‘The due process clause does not. take up the ©

laws of the several States and make all questions per-

taining to them constitutional questions, nor does it enable

this court to ‘revise the decisions of the state courts upon

questions of state law.” “Enterprise Irrig. Dist. ¥. Canal

Co., 243 U.S. £57, 166; and : see Neblett v. —. 305,

U.S. 292, 302.

In any event, there is no merit ‘to appellant's con-

tention that prohibition was improper under gtate law,

That contention is bottomed on a claim that & al spe-

cific “questions of fact?’ which bore on the issue of the

validity of the contract had not :et been tried in the Su-

perior Court.* But that claim is unavailable for the simple

reason that all issues of fact relating to the validity of

the Ordinance which were tendered by appeflant in his

complaint in the referendum case were aqtually tried

‘by the Superigr Court in the first Kirshba case, and

the‘record in first’ Kirshbaum was by stipulation before the

Supreme Court of California: in the prohibition proceed

ing.** Moreover, as was pointed out to the court below,

there was o conflict in thé evidence in either Ruben’ or

first Kirshbaum—cases which had actually been: tried.***

In. such circtimstances the Supremie Court of California °

a

— #See J.Ss 14-15.

**C]k. Tr. v. I (Brief of .Kirshbaum im opposition to writ. filed’.

- Dec. ‘11, 1958, pp. 3-6a) ;.Clk. Tr. v. I (Transcript of eral argu-

_ ment hefore Supreme Court on Nov. 6, 1958, pp. 39-41).

/ ***Cik. Tr. v. IT (Supplemental Brief_of RPI (Real Party in

Interest ) Dodgers, filed December: 3, 1958, pp. 3-6). At J.S. 160

appellant refers to certain “findings” which were assertedly made

- by the Superior Court in the first Airshbawm case, These were not.

* findings; they were conclusioris of law held to be erroneous by tHe

state Supreme Court on the first Kirshbaum case appeal, Kirsh-

baum v. Housing . duthority. (App. 1.) The findings actually made

by the Superior Court in that case were innocuous and are found —

in Clk. Tr..v. " (Kirshbaum ° clerk's transcript pp. 28-29).

4

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was ‘fully cnpennered to determine the meaning and valid-

ity ‘of the contract as a matter of law. E.¢ J. Est te. of .

aie Platt, 21 Cal. 2d 343, 352.

Accordingly, . the state. Supreme Court: was amply jus:

tified in its holding below that “none of the) persons

. attacking.the contract has pointed: to any evidence which

| |» would present a substantial question of fact upon a ma- ©

ay rial issue.” (J.S: App. 4.) This is a complete answer

ee topseller ’s contention. Certainly a disagreement with

the state Supreme Court’s appraisal of the record before

| it (including, by ‘stipulation, the record in both the Ruben

and first. Kirshbaum cases), does not, present a a ‘federal ie

question of substance,

) ' Fufthermore, and wholly apart ee my 1 tiie lack of sub-° .

| stance, Questions 1. and 2 were nvi timely or properly.

| ‘raised below. In response’ to the Petition for Writ of

_ Prohibitj on, appellant initially filed a paper entitled “Points

and Authorities by Louis Kirshbaum | in Opposition to Pe-

| tition for Prohibition.” (Filed August 25,1958, Clk. Tr.

. v1.) In that document appellant made no claim at all .

g based. upon the Constitution or laws of the nited States.

bes Thereafter; following the oral argument in this pro-

Bees —— —hibition-p . x end-document-with- ectome

j . -. the court below entitled “Brief of: Respondent Louis Kirsh-.

| . ~ baum‘in Opposition to Application for Prohibition.” ( Filed

Fe December 11, 1958, Clk. Tr.-v. I.) In that ‘brief appel-

| | ‘lant contended: “If in the determination, as "to whether

|

|

_ the proposed contract is walid,- evidence was required’ on

any question of fact, prohibition by ‘the Supreme Court [ot.

_ | California] would constitute a denial of due process of:

| eet .. law.” - (p: 54). And he made the same contention, in the

~* © same form, at the oral argument. (J.S. App. 44.) “But

| et it is settled that such an averment makitig no reference.

to ‘the’ ‘Constitution of ae United ue and asserting no.

~

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express rights hereunder is.solely referable to the state

Constitution, which in this’ instance has a due’ process

clause,* and affords. no basis whatever for invoking the

jurisdiction of this court.” Bowe v. Scott, 233 U.S. 658,

| Actually, Questions 1 and ee first raised by appel-:

.- lant inthis “Petition for Rehearing After Decision by the

Supreme Court,’’ and ‘said petition was denied without

opinion. Those questions, therefore,.are not now review-

‘able here since they were not seasonably presented or ex-

pressly. passed upon inthe court below. Radio’ Station

WOW v. Johnson, 326 U. S. 120, 128. |

B. Questions. 4 -and 6 Concerning the. So-Called “Public:

' Purposes” Restriction and Its Contemplated Removal. ;

Apart front his discussion of ‘Questions 1 and 2, appel-

lant‘has presented an argument only “on the points em-

braced in his Questions 4 and 6. All of the remaining

Questions Presented—i. e., Questions 3, 5 and 7—remain

posed but’ unargued. _ Accordingly, we turn next to con-

_ ‘sider Questions 4 and 6 in which appellant challenges the

constitutional validity of the contract by reason of the .

provision for the removal of @ deed restriction**

*California Constitution, Art. I, Sec. 13. _ _ fp

-**In passing, we note that appellant's Questions 3 through 7 aré

each stated in terms.of whether the City Council and its Mayor

violated the federal Constitution “in approving” (or “in adopt-

« ing”) the ordinance. As ‘previously noted (supra, pp. 4 and 6), the

Nerdinance did not “take effect” until the results of the referendary

- election were declared by the City Council, almost twenty months

after the Council? adopted and the Mayor approved the -ordinance.

Thus, as articulated by, appeHant, his Questions 3 through 7 present

issues aS.to the constitutional validity of a single intermediate. step

in the legislative proéss of the City of Los Angeles. As an exam-

ple-in the. federal Vy we believe it is clear that the constitutional

validity of a congre®Sional enactment could not arise prior to presi-

dential approval, of the Act. For the same yeason, we believe it*is

clear that appellant's questions, in the form presented, are not ‘re-

‘viewable here:

—i4—

Insofar as appellant invokes the Fourteenth Amendment ~

(Question 4), the question was clearly not timely raised,

for it was posed for the first time on.petition for rehearing

- and was not expressly passed upon. Radio S tation WOW

v, Johnson, suprd, 326 U. S. 120, 428. The point with

reference to Article I, section 10 of the Constitution

(Question 6), is the only federal question which might: be -

thought to have been was timely raised by appellant.in the. ©

California Supreme Court prior to its decision. of Janu-

ary 13, 1958.* "But it, like the other questions now sought

- to be raised, was.and is devoid of substance.” ae

The California Supreme Court considered appellant’s

contention that the City did not have power to sell.to a

" private corporation land held by the City subject to a

public purpose deed restriction. The court stated with

respect’ to, the removal of the ‘deed restriction: -”

' “This contention relates to land acquired from the

Housing Authority of the City. of Los Angeles by a

deed: containing a restriction reading; in part, ‘to be. —

used - for public purposes* only; and not tv pe

used directly or indirectly by the City of Los Angeles,

or its grantees, successors in interest, assigns, or any

ee edna eres a es = :

~

*Appeltafit did not’ faise .this question in his points and authorities

in opposition to the .petition for+prohibition, (Clk. Tr. v. I,: filed

Aug. 25, 1958:) And he filed no answer ,or demurrer to the

‘petition by way of a return to the alternative writ issued by the

court below on October 16, 1958. (Clk. Tr. v. I.) See California

Code of Civil Procedure, §§ 1104, 1105, 1089; Rule 56(c) of Rules

on Original Proceedings in Reviewing Courts, 50 Cal. 2d 43. The

‘only mention by appellant of a claim based upon Article I, section

10 of the federal Constitution is found in the appendices of a brief —

he filed in the California Supreme Court after the hearing in that

court. (€lk. Tr. v. I, Brief_of Kirshbaum in oppositiog to writ,

filed Dec. 11, 1958, pp. B-17, B-28 and F-25 through F-28.) Al-

though the‘court below granted leave to file that brief (Clk. Tr.

v. I,, Transcript of Oral Argument, p. 41), it is doubtful that an

argument based upon federal law in the appendix thereof suffices:

to draw into isstie a federal claim. Cf., Zadig v. Baldwin, 166 U. S.

485, 488.. « igs

PEP

1s.

other person or persons whateoiver claiming by,,

through ‘or under the City of Los Angeles, for a

period of 20 years from. and after the date hereof, for

residential development . or residential subdivision.’

The city, as “we have seen, agrees to use its best

efforts to have the restriction eliminated or modified °

to permit the use contemplated by the club, and it-is -

- provided that if the city is unable to have the restric-

tion changed,. the contract’ shall be . of no further

effect. .

»

“The grantor did not _—— by this provision to

prohibit the city from selling the property ; the provi-’

sion contains no such limitation and plainly contem- -

_ plates the possibility of a sale in that the restriction

is made applicable to use of the siti by the

‘grantees’ and ‘assigns’ of the city. . ~ Ci -S.App.

a Ce.

“And in its subsequent opinion in Ruben v. City of Los -

Angeles and Kirshbaum v. Housing Authority, the —

fornia court said further: on this subject: :

“The deed from the Housing Authority to the city,

in addition, to providing: ; that the land was to be used

. er public purposes only, declared that the property

was not to be used directly or indirectly by the city

or its ‘grantees, successors in interest, assigns, or any

_ other person or persons, whatsoever’ claiming under —

the city for a period of 20 years, for residential devel-

“opment. This language clearly shows that the city °

“may make transfers to ‘grantees’ and ‘ assigns’ as well °

_as to its successors. The deed also implies that after

the 20-year period the property may ‘be used by the

city’s grantees for private residential purposes, that .

the city’s grantees could at any time use the property

<q:

for private purposes other than residential, and that

the general restriction to public purposes, if not mere

surplusage, was intended to apply only while the. city |

— the land.” (App. wei ‘ |

That ‘construction of the deed ‘ the California a

. preme Court was in all respects reasonable and proper and

should not be di8turbed by this Court! Millsaps College.

v. Jackson, 275 U. S..129, 132. It follows that ‘appellant’s

contentions regarding the public purpose deed’ restriction |

are unsubstantial. _His Question 4 expressly: proceeds on

the assumption—flatly’ contrary to the holding of the court

below—that the deed prohibits the City from conveying ~

such land to a private corporation for a private use. His x

Question 6 depends upon the same erroneous assumption.

Moreover, appellant has also failed to show any justi-

ciable right as to which he is entitled to’ seek protection

under the Constitution of the United States. It is clear.

under the decisions of both this Court and the courts of

California that a taxpayer has no vested or proprietary |

Amterest in public funds or. property.* Schenebeck v. Mc-

"Crary, 298 U. S. 36; cf., Farmers and Mechanics Savings a

Bank v. Minnesota, 232 U. S. 516, 524; and see City of

Glendale v. C rescenta. Mutual’ Water -Co., 135 Cal. App.

2d 784, 795. -A taxpayer’s rights are limited to preventing

any misapplication of public property. City of Glendale

_ Crescenta Mutual Water Co., supra. Here, far from if

-any suggestion of misapplication, the: removal of the

deed restriction is being brought about pursuant to a‘con-

* Appellant apparently recognizes. that bis claim regarding the i

deed restriction assumes (albeit erroneously ) ‘that, as a taxpayer,

he has ‘‘vested contractual rights” in the — involved. . (J.S.

28.) ;

a

tract held by. the highest court of the state to be for a

“public purpose and hence for the benefit of the citizens

_ and taxpayers whom the City represents.* -

Furthermore, where a charter city such as Los Angeles

holds property in fee, whether charged with a ‘public use

or not, it is settled California law that the municipality

may deal with it as it sees fit, subject only to the limita-

‘tions and restrictions-of-its own charter. Wiley v. City

"of Berkeley, 136 Cal. App. 2d 10, 14, 15. Here, as the ~-—-

state Supreme Court was careful to’ point out, the charter.

” not-only did not restrict the-right to transfer the property -

in question, it authorized it. (J.S. App. 11, 12.) This -

power reserved to the City by its charter plainly may not

be denied by its own taxpayers. The result is that if and

when the Housing, Authority** gives its consent to the

removal of the restriction, the last vestige of —_ to

have the restriction enforced will have disappeared.

C. Question 3 Concerning the Utilization of Tax Moneys

for the Asserted Purpose of Acquiring and Conveying

_ Land to a Private Corporation.

Although applicant has s made no -argumeht in his Juris-

dictional Statement in support of his Question 3, we

nevertheless. turn to it to show why it, too, does not merit

review in this Court.

*

*If-the imposition of the restriction as between the Housing

Authority and the ‘City created a contract, appellant, 2s a member

of the general public, can hardly be said to be a party to it. C fo

re v. Columbus, Hocking Valley & Athens R. Co., 176 U.

**The we Authority is a state agency. Calit. ‘Health &

Safety: Code, secs. 34200 et seq. The California Supreme Court

‘ held that, under state law, that agency has power to remove the deed

restriction. Ruben v. City of Los Angeles, Kirshbaum v. Housing °

Authority. (App. 6-7.) ’See Calif. Health & Safety Code, sec.

34315 ; t seicniiicnia v. Quinn, (287 U. S. 385.

os

aiden

Question 3 was likewise first raised by appellant on

rehearing in the court below. The question is thus not —

now reviewable here. Radto Station wow v’. Johnson,

326 U. S. 120, 128. .

Furthermore, the question is without substance. It sug-

gests that the contract is invalid under the. due process

clause of the Fourteenth Amendment in that one of ‘its

provisions requires the €ity to use its best efforts to ac-

quire at a reasonable cost approximately 115 acres of addi-

tional land and convey it to the Ball Club along with the.

basic. property. Thus, appellant seizes upon an ‘isolated:

provision in the cgntract without regard to the contract as

a whole. But: significantly appellant nowhere attacks the

holding: below‘that the contract as a wile would serve

legitimate public purposes. In this regard, the Supreme.

Court: of California stated:

“In considering whether the contract made.by ‘the

city has a proper. public purpose, we must view the

contract - as a whole, and the fact that some of the

bis may be.of benefit only. to the baseball club

pa serve: legitimate public purposes. (Cf. City

of Oakland v. Williams, 206 Cal. 315, 319 et seq.

(274 P:.328]; County of Los Angeles v. LaFuente, -

20 Cal. 2d 870, 876-877 [129 P. 2d 378].) The

transfer of Wrigley Field from the ball club to the

: \ city and the construction by the club on the 40-acre

. wparcel of recreational facilities to be used by the city

for 20 years, together with maintendnce of the facili-_

ties for that period; are obviously for proper public

purposes. * *# *” (J.S. App. 89.)

In’declining to attack that holding as to public purpose, a

appellant apparently realizes that “the iequivemmemts a due

immaterial, -provided—the—eity _receives—_benefits

—

process leave free scope for the exercise of a wide legisla-

— tive discretion in determining what expenditures will serve

the public interest” (Carmichael v. Southern Coal Co., 301

U. S. 495, 514) ; that the question whether an “expenditure

serves a public purpose is a practical question addressed

to the law-making department, and would require a plain —

case of departure from every public purpose which could |

reasonably be conceived.to justify the intervention of a .

court” (/d., at 515); and that. the authority of. this Court ;

‘fo strike down “state statutes on the ground that the pur-

- pose for which tax-raised funds were to be expended was

_ not a public one” is one which is “exercised with the most

extreme caution” (Everson v. Board of Education, 330

U. S. 1, 6). a.

- It being undisputed here that ‘the contract authorized.

by the ordinance would benefit the City and would serve

legitimate | public purposes, any claim that one of the pro- .

visions of the contract and ordinance is unlawful because

by itself not beneficial, to\the public is plainly unsubstan-

_ tial. “The end being legitimate, the means is for the leg-

islature to choose.” Carmichael v. Southern. Coal Co.,

supra, 301 U.S. at 518. ‘TT he court below was senee!

correct when it said::

“Tn our silat city can ‘properly agree. that, in

“return for legitimate benefits which it will * eive

under the contract, it will use its best efforts to \ace

quire additional land to convey as: part. of the consid-

eration to be furnished’ by it, even though the city is

in effect agreeing to purchase land for the purpose of

7 selling jt immediately thereafter to a private corpora-" -

tion. If the city had so desired,- -it cleatly could have

“added tothe contract price, in cash, the reasonable

value of the additional land which it agreed to’ use

Se ies

—— aa

“its best. efforts to acquire, and there is no essential

dif ference if the city, instead of- paying the amount

‘in cash, uses the money to acquire property and then

conveys the property as part of the cgntract consid-

eration: Section 2(11){1) of the-city charter author-

‘izes the city to buy ‘anything useful or, convenient’ in

connection with the—exercise “of the city’s powers.

~ While: a city may not purchase land when no public

-use or purpose is involved, in the present case the

additional land is to be acquired for a proper. public

. purpose, namely, that of furnishing the type of: con-

tract consideration which enables ‘iad enter into

a bargain which it-deems advantageous. . . . This case-

dees not present the ‘situation of a enusieteil govern-

ment which seeks to purchase property for the pur-

pose of making ‘a gift of it to a private enterprise or

of otherwise improperly using city funds to aid. pri-

vate persons, because the property which the city is

to endeavor to buy, if acquired, will not. be given —

away 'to anyone but’ will be used as part of the con-

sideration of . aaah entered into for a legitimate '

'D.

public purpose.” GS. App. 10-11.) ;

Question 5 Sedinnaineis the Meant Delegation to a

Private Corporation of the Power to Determine the Man-

ner in Which Tax Money Is to. Be Spent.

Question 3, which. appellant, also has not supported by

any argument, concerns the provision in the Contract (par.

3) which provides that prior to the passage of title of

the land to be conveyed by the City to the Dodgers. the

City will spend up to $2,000,000 to. ‘place the’ property in

a proper condition to be conveyed, “the manner in which

such money’ will be spent for. such: purposes th be desig-

nated by Ball Club.” The assumption in appellant's ques-

¥

Mie as

| tion—that that provision gives the Dodgets “unlimited.

power” to determine how the money is to. be spent—is

shown to be-incorrect by the opinion below. The Su- | .

preme Court . of California held that no_ _ expendittres —

_ could be made under that provision which were not con-

sistent with the general purposes of-thé contract.. The ©

court stated: < De | 7 5

“We find no merit to the claim that the cit) has ©

attempted to make an illegal delegation* to’ a private

corporation of the duties of the city council by agree-

ing that, prior to passage of title, the city shall ge

$2,000,000: to place the Chavez Ravine property ‘

a proper condition to convey to’ the ball club, a

manner in which the money’ will be spent for such

purposé to be designated by the ¢lub. Jt seems obvi- |

sous that the city could not be required by the ball ©

‘= club, under this provision, to make. any expenditures

. .& not im accord with the ‘general purposes of the con-

\ :.. tract. ‘ The city could have paid the tnoney to the

‘club outright, as part of the contract conSideration,

i without retaining any control ‘over the manner or °

~—purpose-for—which—the-money- _should_be spent,and—_-

‘the arrangement by which the city will keep posses- —

sion of the money until it ts spent and, in addition,

retain some control of how it is spent, is an advantage

.to the city. which does not militate against the validity

, of the contract.”’ (J.S. App. 13; coaprame supplied»)

That ¢ogstruction of the contract siden it clear that no

‘federal issue of substance is presented by Question 5.

In any event, it is again sufficient to note that this

- question was first raised by appellant in his petition for

rehearing, which was denied without opinion. .

-

ee a

E. Guevttion 7 as to. the Asserted Tax ‘Exemption.

The factual background die this. contention is simple.

As’ security for the Ball Club’s engagerient to construct:

and maintain recreational facilities. upon a. selected 40-

acre: parcel of the property to be conveyed, the City is ‘to

retain title to the parcel for 20 years. Then, after perform-

. ance by the Ball Club, the City is to convey the property.

without further consideration.. (Contract, par. 1(c). ) Dur-

r

©

ing the 20-year period, the City will be the owner of the _.

' property and will have general control of. the recreational . .

facilities to be -bought: paid. for, and: maintained by the

Ball Club. Title will not vest in the Dodgers «until the

expiration of that period and it will only: vest then upon* |

performahe of the conditions precedent.

~The conjuring up of a tar exemption to the Dodgers —

under this situation is wholly fanciful. One is not crempt

f rronr the payment of taxes ‘on property which he does not

a own; the property is simply not taxable to him.

Furthermore, the questions of exemptions from -state

taxation is wholly a matter of state pélicy. Even if we

were to assume, contrary t@ the fact, that the provisions

of the contraet under discussion may be regarded as stdte

action creating an exemption as to the Dodgers, ‘this Would

still confer no rights upon appelfant under the bnelasaaaas

Amendment: Missouri v.. Dockery, 191 U. S. 165.

Finally; this question, too, was first raised in appellant’s

petition for ‘yehearing, which, as previously noted, was

— denied by the Supreme Court of California without opin-

ion. The. question. is therefore not now open to review.

dh

oe |

Conclusion.

- Fot the foregoing reasons, Appellee Log hae Dod-

gers, Inc. urges’ that the appeal hereini should be dis-

. missed. If the papers whereon the appeal was taken are.

to be treated as a petition for certiorari pursuant to 28

U.S. C. Section 2103, certiorari should be denied.

Respectfully submitted,

" PYERCE. Works, o

WarreN M. CHRISTOPHER,

JuLian Burke,

—* 433 South Spring Street,

i" ; Los Angeles 13, California,

. Jor CRIDER, —

548 South Spring Street, |

Los Angeles 13, California, .

Attorneys for Los Angeies Dodgers, Inc.

July, 1959.

Aye - APPENDIX. mae,

-. Opinion of the Supreme Court of the State of

owe * California. . . ——

: - [Le A..No. 25238. In’ Bank. Apr. 21, 1989.) |

- JULIUS RUBEN et al., Plaintiffs and Respondents, v. CITY

rien «es +. OF LOS ANGELES et al., Appellants. .

| [L. A. No. 25229. Iit Bank. Apr. 21, 1959.] oe ae

LOUIS KIRSHBAUM, Plaintiff and Appellant, v. THE HOUS-~

ING AUTHORITY OF: THE CITY OF LOS ANGELES

et al., Defendants and Respondents; CITY OF LOS AN- «

GELES et:al., Defendants and Appellants. — fone

[1] Municipal Corporations—Contracts—Construction.—A deed

. from a city Housing Authority to the city which, in addition to

providing that the land: was to be used for public purposes = a ©

only, declared: that the property’ was’not to be used directly or

indirectly. by the city or its “grantees, successors in interest,

' assigns, Or any person or persons whatsoever" claiming under

' ss the ‘city for,a period of 20 years for residential development

4° - clearly shows ,that the city may make transfers. to “grantees”

7 ‘ and “assigns” as well as to its successors, and implies that

‘| ' after the 20-year period the property may be used by the city’s.

‘grantees ” for ‘ private residential purposes, that the city’s -

grantees could’ at any time .use the property for private -pur- .

poses other than residential, and that the general restriction

to public. purposes, if not mere surplusage, was intended to

ions apply only while the city retained the‘land. —

[2] Prohibition—Determination—Scope and Effect.—A prior de- 5

4 - dision of the Supreme-Court restraining -the-superior-court-from

{ enforcing a. preliminary .injunction or taking further action

~

| o

pa ec

jn a taxpayer's siit to enjoin certification of the result of a -

referendum election in which a majority of the voters favored .

adoption of an ordinance authorizing a contract between the

city'and a.baseball club to erect a stadium on land which the:

z .* city Housing Authorityhad deeded to the city, that the ©

{ ‘grantor, in providing that the land was to be used for. public

‘ purposes only and was not to be used by the city’s grantees ”

"4 "- or successors in interest for.a ‘period of 20 years for residential

development, did not intend to prohibit the city from selling -

; - the property necessarily included. a determina.ion that the |

- deed did’ not Operate as a dedication to public use or as the *

_, €reation of a trust binding on grantees of the property, and. *

f ’ that the Housing Authority could properly release any interest -

it retained; and.the prior’ decision thus foreclosed the tax-

payer's contentions in -his subsequent suit that ‘the property

was dedicated to a public use, that the land was held in trust

by the city for the public, that the city had no power to

abandon or sell it to a private corporation, and that the Hous-

ing Authority could not subsequently qualify the terms of the

conveyance. ae ies ihn

@

¢

eee. iq .— 2 oni os

_ [3] Id. —Determination—Scope and Effect—Although a ‘city

“Housing Authority was not a party to\a prior prohibition pro-_

ceeding in which the Supréme.Court determined that the provi- |

sions of ‘a deed from the Housing Authorit¥¥*to the city per- :

mitted the city to sell the .coriveyed property free from any pub- ‘

_lic use or trust and that the deed did not preclude the Housing

- ‘.* Authority. from releasing any interest it may have retained, the.

Housing Authority was entitled, in a taxpayer's suit to prevent

execution and enforcement of a contract between the city and a

baseball club to erect a stadium on land which’ the Housing

_ Authority had conveyed to the city, to rely on such determina-

¢ tion, because the issue of whether the deed amounted to a

dedication was decided in the prohibition proceeding and, in

‘view ‘of the fact that the taxpayer had his day in court, he

r

could not ‘rea. sue the matter. ,.

[4] Housing—Housing Authorities Law—Powers and Duties.—

Under Health & Saf. Code, § 34315, subd. (€), providing that

'.a’housing authority may sell, lease, exchange, transfer, assign,

pledge or dispose of any réal property “or any interest in it,”

a city Housing Authority was authorized to release to the city

any interest retained under a deed from the Housing Authority

LOLOL ET TEE Te A ET Tr?

to the city. | gr .

‘ [5] ‘Municipal Corporations—Remedies of Taxpayers.—In. ac-

~ < tions by taxpayers of'a city to prevent execution and enforce-

. ment of a‘contract between the city and a baseball club for erec-

* ‘tion of a stadium on land which had been conveyed to the city,a ~

contention that a parcel of land ina park tu be conveyed to the

baseball club pursuant to the contract was subject to control

of the city’s Department of Recreation and Parks under ‘the

city charter was premature where it did yot appear that any | ;

“actual sales er transfers of property to tHe baseball club. had

. yet been made and the. city still had opportunity to comiply ——

ig cfiarter requirements, - and where, at the time of trial,

: ‘proceedings were pending before the city council to transfer

‘the parcel’ ir question from the jurisdiction: of the park depart-

4ment-on the ground ‘that freeway construction cut off the

property from the balance of ‘the park.

[6] Appeal—Appellate Jurisdiction—Mgot Questions.—A cross~

. + appeal by a city taxpayer who — a judgment against

* the city and a bas¢ball club in his action to. prevent execution

_ and @nfortement of a-contract betweén the city and the club

: on txnd whieh had been conveyed to the city, but who filed the:

. cross-appeal: without any explanation or specification of error;

became moot and should be dismissed in view of the conclusion

im the’ appeal of the city‘and the club, ,that he was entitled to

any relief, even if it be assumed that. he could ‘have brought

himself? within some exception to the general rule that a .party

ie cannot appeal from a judgment in his favor.

e

3

APPEAL from judgment.of the Superior Court of Los

Angeles County. Arnold Praeger and Kenneth C. Newell,

Judges. Affirmed in part and reversed in part with. direc-

tions. | | So7 ee

- Actions by ‘taxpayers of a city against city and city

Housing Authority to prevent execution and enforcement

of a contract betweeti the city and a baseball club. Judg-

ment for = aban Housing Authority and its commis-

stoners, affirmed; judgments against other defendants re-

versed with directions. |

7 Phil! Silver for. Plaintiff and Appellant.

°

Roger Arnebergh, City Attorney, Bourke Jones, Assist-

ant City Attorney, Weldon L. Weber, Deputy City Attor-

ney, Joe Crider, Jr., O’Melveny. & Myers and Pierce Works

- for Defendants and Appellants. — ;

Julius Ruben; in pro. per., for Plaintiffs and Respond- |

ents, co aa

James J. Arditto for Defendants and Respondents. a

GIBSON, C. J.—These two actions were brought by |

taxpayers of the City of Los Angeles to prevent execution

and enfercement of the contract bétween the city and the

Brooklyn National League Baseball Club, .Inc., which was

considered by this court in City of Los Angeles v. Superior

Court, ante, *p. 423 [333 P.2d 745]. Plaintiffs seek a -

declaration that the contfact and the ordinance authoriz-

ing it are invalid and. an injunction against the, doing

of any acts to carry out the ordinance and ‘the contfact. .

Kirshbaum also-seeks an injunction restraining the Hous-

ing: Authority from extinguishing. a restriction contained

-in a deed by the Authority to the city of certain land,in-

volved in the contract.- | ot ee ;

A general demurrer of the Housing Authority. and its . |

commissioners ~was sustained in the Kirshbaum case, and -

a judgment was entered decreeing that Kirshbaum take

nothing: against them. After trial with respect to the re-

maining ‘defendants a judgment was rendered in each case

enjoining the execution of the’contract and the carrying

*Advance Report Citation : Ante; p. 425.

\

~ out of the provisions of the ordinance. These defendants, .

. including the city and the baseball club, have appealed from

the judgments-against them. Kirshbaum has taken a cross-

appeal from the judgment in his favor, and,’ in’ addition,

he has appealed from the cui in favor of the Hous-

ing Authority. ;

@irshbaum’s complaint, insofar a as concerns the relief '

sought against the Housing Authority, alleges that in 1955

'- the Housing Authority conveyed to the city: the fee to

16%62 acres of land. in Chavez Ravine, that this land is a

portion of the land-to be transferred to the baseball club

by the city under the contract referred to above, and that

_ the deed provided that .the property was granted to the

city “to be used for public purposes: only.” It is alleged

that the Housing Authority is about, to take steps to elimi-

nate the public purpose limitation, and.the complaint seeks

to enjoin removal of the restriction.

[1] The deed from the Housing Authority to the city,

in addition to providing that the land was to be used for —

public purposes only, declared that the property.was not to

be used directly 6r indirectly by the city or its “grantees,

successors in‘interest, assigns, or any-other person or per-

sons whatsoever” claiming under the city fora period of

20 years for residential development. This language clearly

shows that the city may make transfers to “grantees’ ’ and ;

“assigns” as well as to its successors. The deed also ini- ‘

plies that after the’ 20-year period the property may be

- used by the city’ s grantees for private residential purposes,

that the city’s grantees could at any time*use the property

for private purposes other than residential, and that the .

general.restriction to public purposes, if not mere surplus- -

age, was intended to apply only while the city retained =

land. —

Any doubt as to th proper construction ‘of. the instru-

ment and the rights of the city andthe Housing Authority

thereunder was resolved in City of Los Angeles v. Superior

Court, *ante, pp. 423, 435-437 [333 P.2d 745]; where both

Ruben. and Kirshbaim appeared. In that case we granted

_a writ of prohibition restraining the superior court from

*Advance Report Citation: Ante, pp. 425, 437-438. - ,

Ss .

eriforcing a preliminary injunction or taking further action

in a suit to enjoin certification of the result of a referen-—

dum election in which ‘a majority of the voters favored

adoption of the ordinance authorizing the contract." We

held that the grantor did not intend by the restriction to

prohibit’ the city from selling the property and that the

‘ city could sell it pursuant to section 393 of the charter

which, with certain exceptions not ‘pertinent to this ques-.

‘tion, permits property no longer required by the city to -be

sold upon such terms and conditions as the council pre-

scribes by ordinance. We further held, in determining the

validity of the city’s promise to use its best efforts to have -

the. deed restriction removed; that any possibility that the

Housing Authority may have a right to complain of a ter-

mination of the public use will disappear if the city is able

to obtain the Housing Authority’s consent to elirninate the

restriction. ie Oo Sash

[2] Our decision in City of Los Angeles v. Superior

c. Court, ante, tp..423 [333 P.2d 745], forecloses Kirsh-

baum’s contentions that as a result of the deed restriction

the property was dedicated to a public use, that the land

is held in trust by the city for the public, that the city has

no power to abandon or sell it. to a private corporation,

and that the Housing Authority cannot qualify the terms -

of the conveyance by any subsequent, act or declaration.

The holding in that case necessarily included a determina-

tion that the deed did not operate as a dedication to a

public use or as the- creation of a trust binding upon

grantees of the property, and it likewise included a deter-

mination, insofar as concerns the character of the instru-

ment, that the. Housing Authority ‘may properly release

any interest which it retains’ under: the deed and that such

a release will be effective to permit the city to proceed with.

the contemplated sale to the baseball club.

1Although, the binding efiect-of a prior judgment is a defense

that must ordinarily be pleaded and proved (Code Civ. Proc., § 1962,

‘subd. 6), where the judgment in one suit becomes final while. an

appeal is’ pending from the judgment in another action, the first

final judgment may be brought to the attention of the court in’

which the appeal is still pending and may be relied on as res: judicata

(see Domestic & Forcign Petr. Co. v. Long, 4 Cal.2d 547, 562

{51 P.2d 73]; 3 Witkin, California Procedure (1954) 1935)...

fAdvance Report Citation, Ante, p. 425. ~ ,

; :

[3] The Housing Authority, although not a party to

the prohibition proceeding, is entitled in the present action

_by Kirshbaum to rely upon the prior determination, be-

cause the issue of whether the deed amounted to.a dedica-

tion was decided there and, in view of the fact that Kirsh-

baum had his day in court, he cannot now reargue the «

matter. (Bernhard v. Bank of America, 19 Cal. ad 807,

811 et seg. [122 P.2d 892].)

Since we have decided in City of Los Angelés o. Ser-

perior Court, ante, *p. 423 [333 P.2d 745], that the pro-

visions of the deed permitted the city to sell the conveyed

property free from any public use or trust and that the

deed did not preclude the Housing Authority from releds-

ing any interest which it may have retained, we are not

- governed here by cases which hold that a conveyance of

property to a city for a specific purpose, i.e., fora park

or a street, may .by reason of the language in the deed

.

“amount to a dedication to a public use irrevocable by either °

the grantor or the city. (See H’attson v. Eldridge, 207

‘Cal. 314, 318-320 [278 P. 236]: Slavich v. Hamilton,

201 Cal. 299, 302 et seq. [257 P. 60]; ‘Archer. v. City of :

Salinas, 93 Cal. 43, 49 et seq. [28 P. 839, 16 L. R.A. 145];

Hashington ete. Co. v. City of Los Angeles, 38. Cal.App.

2d 135, 136-138 [100 P.2d 828]; Lowell v. City, of Boston,

322 Mass. 709 [79 N.E.2d 713, 725-726].)?

[4] In our prior decision we expressly withheld: con-

sideration of the question whether or not the Housing

Authority has power, i.e., the legal capacity under ‘applica-

ble statutes regulating its powers and duties, to execute a

release of its rights under the deed restriction. (Ante, at ~

tpp. 436-437.) Kirshbaum’s complaint, however, contains.

no allegations ‘that would ‘permit a conclusion that ‘the

Housing Authority lacks such power. On the other hand,

*Advance Report Citation: Ante, p. 4285. ;

“It may be noted, however, that in these cases property was trans-

ferred to a municipal corporation for a single, specified public pur-

pose, unlike the transfer generally, for all * ‘public purposes,” made

hy the Housing Authority's deed, ane that none of the conveyances

in these cases contained language like that in the deed involved here

which shows that the city may dispose of the prperty to “grantees”

or “assigns.” :

t+Advance Report Citation : Ante, pp. 425, 438.

Jee Slee ans apelin

‘property “or any interest in it.

oe

suhilivision (e) of section 34315 of the Health and Safety

Code. provides that -a housing authority may sell, lease,

exchange, transfer, assign, pledge, or dispose of any real

” This legislation is ample

to permit the Housing Authority to release to the city any

interest retained under the deed.

It follows from what we haye said.that no cause of

ction has been stated against the Housing Authority and

t t the trial court properly’ hon: sacar aad general de-.

murrer.

_ With one exception all ‘of the questions iditing to the

judgment in'the Ruben and Kirshbaum cases which en-

joined execution and'enforcement of the contract were re-

_ solved against the taxpayers by our decision in City of

Los: Angeles v. Superior Court, ante, *p. 423 [333 P2d

745]. [5] Kirshbaum contends that a parcel of land

in Elysian Park to be conveyed to the baseball club pur-

suant to the contract is subject to the control of the city’s

Department &f Recreation and Parks, that. under section

393 of the city charter® such land may be sold only with

the approval of. the board or officer having the manage-

ment of that department, and that no such approval has.

‘been obtained. The contention, not determined in the pro- .

hibition case, is premature, because it does not appear. that

any actual sales or transfers of property to the baseball

club have yet been made, and the city still has the oppor- -

tunity to comply with these requirements of the charter.

Moreover, at the time of trial herein, proceedings were

pending: before the city council to transfer the parcel in

question from the jurisdiction of the park. department on

the ground that freeway construction cut off the property

from the balance of Elysian Park, and, if such a transfer

is accomplished, consent of the department to a@'sale. will

no longer be necessary. (See Los Angeles City Charter,

§ 140, subd. (d), prescribirig propecia” for such trans-

fers.) _

*Advance Report. Citation: Ante, p. 425.

Section 393 of the charter provides, in part; that “any real prop-,

erty proposed to be seld that ts under the control of any board or

commission authorized by this charter or by law to acquire, hold or

control real property shall not be sold except’at the request or with ”

the approval of the board, commission or officer having the manage-

«ment of such department..... .”

*s

It| follows from the foregoing ‘that the judgments en-

joinihg execution and enforcement of the contract must be

reversed. [6] Kirshbaum’s notice of cross-appeal from

the judgment: which he obtained against the city and the ©

baseball: club states, without any explanation or. specifica-

_ tion of error, that he thereby cross-appeals to this court

from the whole of that judgment. In view of our conclu-

. sion that he is not entitled.to any relief, his cross-appeal

has become moot -and should be dismissed, even if. we as-

sume that he could have brought himself within some ex-

ception to the general rule that a party cannot appeal from

a judgment in’his favor. (See for the general rule, Max-

well Hardware Co. v. Foster, 207 Cal. 167, 170 [277 PP. .

327]; 3 Witkin, California Procedure (1954), 2182.)

The, judgment in favor of the Housing Authority and

its commissioner: is affirmed. The judgments against the

other defendants are reversed with directions to enter

judgments in their favor in accordance with this opinion

and the decision in-City of Los Angeles v.Superior Court,

ante, *p, 423 [333 P.2d 745].. The creneepyen of. plain-

tiff Kirshbaum i is dismissed.

Shenk, J., Traynor, J., Schauer, J Spence, J.; “McComb,

J., and Peters, » @ concurred.

r

*Advance Report Citation: Ante, p.-425.

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