Armas v. City of Oakland

DRAPER, J.

This is a taxpayer’s suit to have a freeway agreement between defendant city and the State of California declared void, and to enjoin the city and its officers from performance thereof. Defendants’ motion for judgment on the pleadings was granted, and plaintiffs appeal.

By the agreement in question, the city "agrees and consents to the closing of city streets” incident to the construction of a freeway. The 33 streets to be closed are shown on a map attached to the agreement, which was executed by the Department of Public Works in behalf of the state. The agreement was signed on behalf of the city pursuant to a resolution of the city council approving the agreement and directing its execution by named officials.

Plaintiffs’ argument is that the resolution and the agreement executed under it are void because of failure to comply with the requirements of notice, opportunity to protest, and hearing which are specified by the Street Opening Act of 1889 (Sts. & Hy. Code, §§ 3220-3226) or the Street Vacation Act of 1941 (Sts. & Hy. Code, §§ 8300-8374). Plaintiffs rely upon the established rule that under a statute granting a power but establishing a limited means of exercising it the mode is the measure of the power. If the only authority to close city streets bisected by a freeway were to be found in the acts cited, their argument would be sound. But we have concluded that another section establishes the power to provide by agreement for such closing as is incident to freeway construction.

The parties devote substantial portions of their arguments to the question whether the closing of streets incident to construction of a freeway is a state or a municipal function. We find it unnecessary to determine this question. Although Oakland is a charter city, plaintiffs concede that its charter and

[139]

ordinances prescribe no procedure for street closing and that thus the procedural provisions of state law must be followed, even if the function be municipal in character (see

Hyde

v.

Wilde,

51 Cal.App. 82, 86 [196 P. 118].) The question then, is whether the procedure here followed conforms to a statutory scheme.