City of Oakland v. Oakland Water Front Co.

MeFARLAND, J. This is an appeal by the defendant, a corporation, from an order of the superior court of Alameda county denying a motion of defendant for a change of the place of trial of this action from said county to some other county.

The respondent is a municipal corporation. In the complaint it is averred that the respondent is the owner in fee of certain [251]lands described as lying in front of said city of Oakland “below the line of ordinary high tide of the bay of San Francisco”; that appellant “claims some interest and estate in and to said lands” adverse to respondent; and that “this action is brought to determine such adverse claim.” The appellant in its answer dearies the title of respondent and sets up title in itself.

The motion was based upon the facts, shown by affidavit and admitted to be true, that there are four judges of the superior court of Alameda county; that one of them was “an inhabitant and a resident and elector of the city of Oakland,” and was “the owner of property, real and personal, assessed,” and subject to assessment and taxation by the city for all municipal purposes; that each of the others was an owner “of property” in the city assessed, etc., for municipal purposes; and that all except one were residents and electors of the city. The ground of the motion was that all of said judges were disqualified because they were owners of property subject to taxation by the city of Oakland and therefore “interested” in the result of the action, within the meaning of section 170 of the Code of Civil Procedure, which provides, among other things, that no justice or judge shall sit or act in any action or proceeding “to which he is a party or in which he is interested.” The court below held that said judges were “not all of them interested in the said action,” and “not all of them disqualified,” and for that reason denied the motion. The theory of the appellant is, that if the respondent should recover the land sued for it might be so used as to produce some municipal revenue and thus affect to some extent the rate of taxation, as a consequence of which the taxes which the said judges would have to pay on their property might to some imaginable extent be lessened—and that thus they are interested and disqualified. If any one of the judges was not thus disqualified, of course, the court did not err in refusing to change the venue to another county, for the qualified judge could try the action; and as it appears that three of them merely owned “property” of which the character and value does not appear, it follows, upon the theory aforesaid, that if one of them owned some personal property of the value of only ten dollars, or one dollar, he would be disqualified, although his interest in reducing taxation would be so infinitesimal as to be almost impossible of