SIMPSON v. CITY OF LOS ANGELES et al.a1
This action involves the validity of Ordinance No. 64715 (N. S.) of the city of Los Angeles, whereby section 171/212 was added to General Traffic Ordinance No. 50515 (N. S.), the section added reading as follows: “It shall be unlawful for the operator of any vehicle to drive said vehicle in, out of, or upon Olvera Street between Marchessault Street and Macy Street.”
The amendment, as just stated, to Ordinance No. 50515 (N. S.) became effective on the 12th day of October, 1929. The trial court upheld the validity of Ordinance No. 64715 (N. S.) amending Ordinance No. 50515 (N. S.). From this judgment the plaintiff appeals.
For many years the plaintiff has been the owner of lot “A,” tract 4629, in the city of Los Angeles. This lot has a frontage of 235.32 feet on the west side of Olvera street, commencing at Marchessault street and running thence northerly. Olvera street was, at all the times herein mentioned, and ever since the 3d day of May, 1877, has been, a dedicated public street in the city of Los Angeles, and opened and used for all purposes as a public thoroughfare. Two of the buildings owned by the plaintiff situate on lot “A” have loading doors opening on Olvera street and all of the buildings have rear entrances thereon. That prior to the effective date of Ordinance No. 64715 (N. S.) plaintiff and her predecessors in interest for more than fifty years, and the tenants and lessees of the plaintiff and their customers, had used Olvera street as a means of ingress to and egress from said premises. That the court so found, and also found that access to said premises by vehicles and pedestrians over Olvera street was of value to the plaintiff. The court also found that the closing of Olvera street was of damage to the plaintiff as the owner of the lot mentioned. Olvera street is approximately 520 feet in length from its intersection with Marchessault street on the south to Macy street on the north; approximately 57 feet in width at the north and approximately 48 feet in width where it intersects Marchessault street. The direction of the street is northerly and southerly.
Appellant's property, during all the times mentioned herein, was and is improved with stores which were let and leased to tenants, to be used for business and light industry purposes, and the same are and were used for such purposes. The property along Olvera street has for many years been used for business and light manufacturing purposes. Other buildings, in addition to those belonging to the plaintiff, have loading doors opening on Olvera street.
The record likewise shows that prior to the passage of Ordinance No. 64715 (N. S.), amending Ordinance No. 50515 (N. S.), vehicular traffic on Olvera street was negligible. The vehicular use made of the street consisted principally of trucks and other vehicles conveying merchandise taken to and conveyed through the loading doors which we have mentioned opening on Olvera street, to the various premises abutting on said street. There does not appear to have been any through traffic on Olvera street, nor has it ever been used as a thoroughfare by what are usually termed “passenger automobiles,” the street being used practically for the purposes which we have mentioned. Not being a regular thoroughfare for passenger automobiles, it appears from the record that prior to the passage of the ordinance referred to Olvera street had remained unimproved.
A short time previous to the passage of the ordinance which became effective October 12, 1929, the defendant Plaza de Los Angeles appears to have obtained an agreement with the owners of property having a frontage of 78.3 feet on Olvera street, being property known as the “Avila Adobe” located thereon. Following this, the defendant Christine Sterling, the secretary of the corporation just mentioned, sent the following communication to the city council of the City of Los Angeles:
“Gentlemen: At the Plaza between Main and Los Angeles streets is a short street called Olvera. It is unpaved, filthy, and unsanitary. Facing upon this street is the oldest and most historic building in this city, which in 1847 was the American headquarters and housed Commodore Stockton and General Fremont. * * * If the City Council will grant me permission to beautify Olvera street, I will convert it into one of the greatest tourist attractions this city has ever had. I will make it a typical Spanish-Mexican street where the Mexican people in costume can sell their wares under bright-colored awnings and canopies–coffee tables out on the sidewalk–street musicians–flower markets and all of the charm and picturesqueness of Mexico and Spain. It will furnish the city with a suitable place to give fiestas and celebrate such days as September 4th, January 10th, etc. It will help to keep alive our patriotism and sentiment. Olvera street is one of the old pueblo grants so there should be no legal difficulty to such a step. I have funds available to complete the project and with the exception of a little help from the city engineer in leveling the street there would be no expense to the city. The majority of the property owners on the street are favorable to the plan and we will lease any store vacated by any tenant as a result of this improvement. All stores and shops have a large Main street entrance, so loading and unloading is not necessary on this alley.
“The whole matter can be summed up as follows: At present we have a condition which is the gutter of this city. Foul water drains down this street and rubbish is dumped upon it. No traffic goes through, but it is a parking place for trucks and cars. In exchange for this condition I offer the city a clean, picturesque Latin-American show place–a spot of beauty for us all to enjoy–a romantic place in which to preserve our history and fulfill a real Pan-American ideal.
“Very truly yours,
“[Signed.] Christine Sterling.”
Our attention has not been called to just what was done with this communication, but it does appear that thereafter R. T. Dorsey, the traffic engineer of the city of Los Angeles, recommended that Olvera street should be closed to vehicular traffic, the court finding as follows: That said R. T. Dorsey recommended to the traffic and lighting committee of the city council that the closing of Olvera street to vehicular traffic was advisable from the standpoint of the regulation of vehicular travel and traffic within the central traffic district of the city of Los Angeles, and that the traffic and lighting committee recommended the adoption of the closing of Olvera street to vehicular traffic. This appears to have led to the adoption of Ordinance No. 64715 (N. S.), amending Ordinance No. 50515 (N. S.). The record does not show the recommendations just referred to, but simply the statement of the witness Dorsey, which was admitted over the plaintiff's objection, that such recommendations were made.
After the passage of Ordinance No. 64715 (N. S.), the board of public works of the city of Los Angeles granted permission to the defendant Plaza de Los Angeles, to improve Olvera street according to a plan and plat submitted for the beautification thereof. This plan appears to have been carried into effect, Olvera street was improved, and the court found that thereafter the defendant Christine Sterling and the Plaza de Los Angeles, a corporation, proceeded to grant concessions to individuals, who established booths, stands, and structures upon said street throughout most of its length, to the intent that the persons to whom said booths, stands and structures were let could and did sell goods, wares, and merchandise of various kinds, and that the booths, stands, and structures were placed upon the roadway of Olvera street, and have been used and maintained thereon for business purposes. It also appears that chains were placed and maintained at both the northerly and southerly entrances to Olvera street obstructing the ingress to, and egress therefrom, and that since the passage of the ordinance the street has been used as a place for the vending of Mexican curiosities and as a show place for the attraction and entertainment of the amusement seeking public, and also as a loitering place for the idle and those having no particular occupation save to pass away the time.
The court found in favor of the plaintiff as against the defendants Christine Sterling and the Plaza de Los Angeles, to the extent of ordering the removal of obstructions immediately in front of her premises, and also the taking down of the chains, so as to leave a space of a few feet at either entrance of Olvera street, leaving the roadway thereof otherwise obstructed.
As we have stated, the record shows that Olvera street, prior to the adoption of the ordinance in question, was seldom used for vehicular purposes, was in no sense of the word a thoroughfare for passenger automobiles, the street being used practically in connection only with the business enterprises carried on along said street, or on premises abutting on said street. While the recommendation of the traffic engineer appears to have been based upon “vehicular travel and traffic within the central traffic distance of the City of Los Angeles,” no mention is made of the vehicular traffic on Olvera street. It may be here stated that the record also shows that no lives have ever been sacrificed by vehicular traffic on Olvera street, nor is there any record of any personal injuries having been inflicted by vehicular traffic on Olvera street. The basis of the city's contention upon this appeal is that, if there should be any considerable vehicular traffic on Olvera street, it would add just that much to the traffic on adjacent streets. Just how this could arise does not appear very clear, because the traffic on Olvera street must necessarily come from one of the adjacent streets running easterly and westerly. It does appear also in the record that, whatever vehicular traffic there might be upon Olvera street, if only right-hand turns were permitted thereon, no great or material burden would be added to either of the adjacent streets. By reason of the situation of Olvera street not being a through thoroughfare, it is evident that no traffic can originate on that street which does not come from traffic on adjacent streets, from which it necessarily follows that it would not add a single automobile, in numbers, passing over and using either Marchessault or Macy streets.
Before considering the contentions made by the respective counsel, it is also well to bear in mind that practically all the testimony relied upon by the respondent city is based upon a condition subsequent, and also upon the assumption that the permission of vehicular travel on Olvera street would add to the burdens now being borne by adjacent thoroughfares. This latter, of course, has no basis in fact, in view of the location of Olvera street, being such that no original traffic can emanate therefrom.
The testimony based upon a condition subsequent relates to the number of pedestrians now congregating on Olvera street. As a matter of fact Olvera street is not really used as a place of travel by pedestrians. It is in fact used, according to the records, as a place for pedestrians to congregate, view Mexican curios, purchase articles of Mexican manufacture, and enjoy somewhat the atmosphere and influence of a city south of the Rio Grande.
In determining the validity of the ordinance barring vehicular traffic on Olvera street, our inquiry must be confined to the condition of the street at the date of the adoption of the ordinance. If it were a valid police regulation at the date of its adoption, no changed condition would affect its validity. On the other hand, if it were an invalid act on the part of the city at the time of its adoption, the changed conditions testified to by the witnesses for the respondent would not give life to that which was dead timber from the beginning. As we have stated, the testimony shows that the street was unimproved; that it was not used for general vehicular traffic; that vehicular traffic was not prohibited on Olvera street by reason of any danger or peril to any one on Olvera street, by reason of the use thereof by vehicles.
The record does show that, since the conversion of Olvera street into a Mexican bazaar or show place, a large number of people do visit the premises for the purposes herein mentioned. However, the fact that the street has been converted into either a show place or a pleasure resort does not establish a legal basis for excluding the plaintiff from using the street for the purposes to which she and her tenants have been accustomed to do for a great many years.
Was the passage of Ordinance No. 64715 (N. S.), which amended Ordinance No. 50515 (N. S.) by adding thereto sections 171/212, a valid exercise of the police power by the city of Los Angeles?
As stated in 43 C. J., page 227: “A municipal corporation is limited in the exercise of its powers to matters local and municipal. The corporation is thus restrained from entering the field of general legislation or making declaration of public policy. In order that a municipal regulation may be sustained as an exercise of the police power, the regulation must have for its object the prevention of some offense or manifest evil or the preservation of the public health, safety, morals, or general welfare. The exercise of the police power must have a substantial basis. The power cannot be made a mere pretext for legislation that does not fall within it. There must be some clear, real, and substantial connection between the assumed purposes of the regulation and the active provisions thereof, and the provisions must in some plain, appreciable, and appropriate manner tend toward the accomplishment of the object for which the power is exercised. The primary object of municipal regulations is public and not private. The police power may not be exercised for private purposes, nor for the exclusive benefit of particular individuals or classes.”
There is nothing in the record which indicates that the ordinance in question was passed to prevent any manifest evil; nor was it passed for the preservation of public health, safety, morals, or general welfare. The city did not intend, and never has taken any action, to eradicate the so-called evils existing on Olvera street. The city did not at any time nor does the record show that the city ever considered the question of passing the ordinance for the purpose of preserving the health of the city. That was left entirely to the action of private parties.
The record likewise shows, that the ordinance could not have been passed for the safety of any one on Olvera street, on account of the fact that the record shows that no person had ever suffered any personal injury by reason of the vehicular traffic that had theretofore used Olvera street.
We have yet to learn that the passage of an ordinance which opens the way for the establishment of a show place on a city street is an act having for its purpose the elevation of morals or in any wise tending to promote the general welfare. Nor is there anything in the record which indicates that the passage of the ordinance in question was necessary, expedient, advisable, or otherwise called for to conserve the peace of Olvera street, or of the people living thereon, or using the same.
On the part of the respondent it is contended that the court cannot inquire into the motive actuating the legislative body in passing any particular kind of legislation. This is true, but the court can inquire into the purpose and object sought to be accomplished by any particular ordinance. There is a distinct difference in meaning between “motive” and “purpose.” In 42 C. J., page 561, “motive” is defined as “an inducement, reason, cause, or incentive for the doing of an act; some cause or reason that moves the will and induces action; that condition of the mind which incites to action,” etc. “Purpose” is defined in 51 C. J., page 102, as follows: “This word is derived from the Latin ‘propositum,’ and has been defined as meaning that which a person sets before himself as an object to be reached or accomplished; the end or aim to which the view is directed in any plan, measure or exertion”, etc. What we have set forth herein all goes to show the “object to be reached or accomplished; the end or aim to which the view is directed in any plan, measure, or exertion,” etc.
What was the object to be attained by excluding vehicular traffic from Olvera street? We think it is absolutely undeniable that it was simply to enable the defendants Christine Sterling and Plaza de Los Angeles to beautify Olvera street and make an attractive show place, just as exhibited by the record in this cause, and, as said in the quotation from 43 C. J., supra, such power cannot be used as a mere pretext for legislation, as it is not police regulation.
The language used in the case of Gray v. Reclamation District No. 1500, 174 Cal. 633-640, 163 P. 1024, 1032, we think applicable, to wit: “The problems do not arise from any similarity in the nature of the powers themselves. They arise in each case from the difficulty of determining whether or not the asserted exercise of the police power is but a disguise for evading the private owner's rights, with the result that his property is taken or damaged without compensation in a case where compensation is called for.”
The question here is whether we are dealing with a valid exercise of the police power, or whether the act in question is not merely a thinly disguised piece of legislation, having for its purpose the accomplishment of an object entirely outside of the police powers of a city. Or, as said in 18 California Jurisprudence, page 828: “A municipality may not, by virtue of the police power alone, and for purely aesthetic purposes, limit the use which a person may make of his property.”
Again, in 6 Ruling Case Law, page 236, we find the following: “The police power of the State extends only to such measures as are reasonable, and the general rule is that all police regulations must be reasonable under all circumstances. In every case it must appear that the means adopted are reasonably necessary and appropriate for the accomplishment of a legitimate object falling within the domain of the police power. A statute, to be within this power, must be reasonable in its operation upon the persons whom it affects, and not unduly oppressive. The validity of a police regulation, therefore, primarily depends on whether, under all existing circumstances, the regulation is reasonable or arbitrary, or whether it is really designed to accomplish a purpose properly falling within the scope of the police power.”
Again, we may ask, what effect, so far as the city of Los Angeles was concerned in any of its actions, did the mere closing of vehicular traffic on Olvera street have in improving the sanitary condition, the peace, health, or morals of that portion of the city of Los Angeles? The answer must be negative to all these questions. Not having such object in view, what was the object? The answer to this question is found in the proceedings initiating and leading up to the passage of the ordinance involved herein. Motive is not involved, but the objects sought to be accomplished stand out clearly and distinctly.
That the court may consider the objects to be attained, we may refer to the case of Dobbins v. Los Angeles, 195 U. S. 223, 25 S. Ct. 18, 22, 49 L. Ed. 169. We quote from the opinion as follows: “It is urged that, where the exercise of legislative or municipal power is clearly within constitutional limits, the courts will not inquire into the motives which may have actuated the legislative body in passing the law or ordinance in question. Whether, when it appears that the facts would authorize the exercise of the power, the courts will restrain its exercise because of alleged wrongful motives inducing the passage of an ordinance, is not a question necessary to be determined in this case; but where the facts as to the situation and conditions are such as to establish the exercise of the police power in such manner as to oppress or discriminate against a class or an individual, the courts may consider and give weight to such purpose in considering the validity of the ordinance. This court in the case of Yick Wo v. Hopkins, 118 U. S. 356, 6 S. Ct. 1064, 30 L. Ed. 220, held that, although an ordinance might be lawful upon its face, and apparently fair in its terms, yet, if it was enforced in such a manner as to work a discrimination against a part of the community, for no lawful reason, such exercise of power would be invalidated by the courts.”
In the case of Ex parte Snowden, 12 Cal. App. 521, 107 P. 724, 726, the court said: “The reasonableness of a regulation such as we are here considering depends upon its purpose and the conditions requiring it to be made.”
The well-considered case of Pacific Palisades Ass'n v. City of Huntington Beach, 196 Cal. 211, 237 P. 538, 540, 40 A. L. R. 782, the court said: “Every intendment is to be made in favor of the lawful exercise of municipal power making such regulations, and it is not the province of courts, except in clear cases, to interfere with the exercise of that authority. But, as was recently said by the Supreme Court of the United States, ‘while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.’ Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, 415, 43 S. Ct. 158, 67 L. Ed. 322, 28 A. L. R. 1321. [See, also, Rose's U. S. Notes.] Therefore, notwithstanding this general grant of power, it is a thoroughly well-settled doctrine that municipal by-laws and ordinances undertaking to regulate useful business enterprises are subject to investigation in the courts, with a view to determining whether the law or ordinance is a lawful exercise of the police power; or whether, under the guise of enforcing police regulations, there has been an unwarranted and arbitrary interference with the right to carry on a lawful business, to make contracts, or to use and enjoy property. Dobbins v. Los Angeles, 195 U. S. 223, 25 S. Ct. 18, 49 L. Ed. 169; In re Application of Throop, 169 Cal. 93, 99, 145 P. 1029; Curtis v. City of Los Angeles, 172 Cal. 230, 234, 156 P. 462.”
Here, we may again ask: Was the amending of Ordinance No. 50515 (N. S.), by adding thereto section 171/212, purporting to regulate vehicular traffic on Olvera street, where there is not a scintilla of evidence to show that the vehicular traffic on said street had ever been a menace to either life or property, a real police regulation, or only a disguised act to accomplish the purpose, which the record shows was the beautifying of Olvera street and the establishment of a show place thereon?
As further showing that ordinances are not valid which really have for their object the accomplishment of said æsthetic purpose, we cite the case of In re Hall, 50 Cal. App. 786, 195 P. 975.
In Eachus v. Los Angeles, etc., Ry. Co., 103 Cal. 614, 37 P. 750, 751, 42 Am. St. Rep. 149, while an action for damages, the law set forth in the opinion we think applicable, to wit: “The right of the owner of a city lot to the use of the street adjacent thereto is property which cannot be taken from him for public use without compensation; and any act by which this right is impaired is, to that extent, a damage to his property. When a city subdivides a tract of land, of which it is the owner, into blocks and streets, and sells the same, it thereby dedicates the streets to public use, and the purchaser of one of those lots acquires an easement in the street fronting upon his lot, for the purposes of ingress and egress, which attaches to the lot, and in which he has a right of property as fully as in the lot itself.” The opinion then goes on to say that such owner is entitled to compensation. Compensation, however, is not prayed for in the instant case.
And further, as to the additional rights which a property owner has in a street upon which his property abuts, we cite the case of Lane v. San Diego Electric Ry. Co., 208 Cal. 29, 280 P. 109, 111: “‘An abutting owner has two kinds of rights in a highway, a public right which he enjoys in common with all other citizens, and certain private rights which arise from his ownership of property contiguous to the highway, and which are not common to the public generally; and this regardless of whether the fee of the highway is in him or not. * * * An abutting landowner on a public highway has a special right of easement and user in the public road for access purposes, and this is a property right which cannot be damaged or taken away from him without due compensation.’ 29 C. J. 547; Fairchild v. Oakland & Bay Shore Ry. Co., 176 Cal. 629, 169 P. 388; Cushing-Wetmore Co. v. Gray, 152 Cal. 118, 123, 92 P. 70, 125 Am. St. Rep. 47; Smith v. Southern Pac. R. R. Co., 146 Cal. 164, 79 P. 868, 106 Am. St. Rep. 17; Eachus v. Los Angeles, etc., Ry. Co., 103 Cal. 614, 37 P. 750, 42 Am. St. Rep. 149; McLean v. Llewellyn Iron Works, 2 Cal. App. 346, 83 P. 1082, 1085. ‘An abutter has a limited right to obstruct the roadway and sidewalks in a municipality by reason of his business or household exigencies, as, for example, by teams and vehicles permitted to stand in front of his property for a reasonable time. * * * And an abutting owner may use the street as for the purpose of loading and unloading goods or merchandise, or transporting his goods or other portable articles to and from his property, but such uses must be necessary and reasonable and the abutting owner cannot obstruct the street for long periods each day.’ 44 C. J. 956. ‘The owner of a lot abutting upon a public street has by reason of such ownership a special easement in such street for the purpose of ingress and egress which is property as fully as the lot itself.’ Cushing-Wetmore Co. v. Gray, supra.”
In 19 California Jurisprudence, page 55, the right of a property owner is affirmed, as follows: “The right of a citizen to travel upon a street and transport his property thereon in the ordinary course of life and business differs radically from that of one who makes the street his place of business and uses it for private gain, as in the running of a stage coach or omnibus. As to the former, the extent of legislative power is that of regulation; but as to the latter, the power is broader and the right may be wholly denied, or it may be admitted to some and denied to others because of its extraordinary character.”
The respondents set forth in their brief a rather lengthy quotation from 13 Ruling Case Law, page 253. The basis, however, of that quotation depends upon a few lines at the beginning of paragraph 209, to wit: “The right to use the highways and streets for purposes of travel, however, is not an absolute and unqualified one, but may be limited and controlled by the State in the exercise of its police power, whenever necessary to provide for, and promote the safety, peace, health, morals, and general welfare of the people.” The balance of the quotation is surplusage, in so far as it is not based upon one of the specifications set forth in the above quotation. We have shown that the closing of Olvera street was unnecessary for the safety of any one using the same, no one ever having been injured, and no property or personal damage having been inflicted thereon. The peace of the locality did not require the exclusion of vehicular traffic; and as to how the health and morals of the people who had been accustomed to use the street for the purposes of conveying merchandise to their stores were affected is not made to appear. Likewise, no general welfare is involved. At no time has it been made to appear, and the contrary has been established, however, that the use of automobiles upon Olvera street had never been dangerous to the general traveling public, as the general traveling public had never used the street. As we have shown, the traffic using the street cannot legitimately be said to be an added burden to either Marchessault street or Macy street, because whatever traffic passes over Olvera street relieves one or the other of said streets before it adds a burden to the other.
That the city council has no power to arbitrarily close a street to vehicular traffic and prohibit traffic thereon under the guise of police regulation, is considered and set forth very fully in the case of Haggenjos v. City of Chicago, 336 Ill. 573, 168 N. E. page 661, where it was held that the city council might regulate, but it could not prohibit the parking or stopping of automobiles on streets for legitimate purposes.
The appellant cites numerous cases to the effect that, while regulations may be adopted governing vehicular traffic, streets cannot be entirely closed so as to prohibit their use, and especially where the rights of abutting property owners are involved. Likewise, that the right to regulate does not confer the power to prohibit. Citing Barnes v. Essex County Park Commission, 86 N. J. Law, 141, 91 A. 1019, Ann. Cas. 1916E, 968; Valmont Developing Co. v. Rosser, 297 Pa. 140, 146 A. 557; Cummins et al. v. Jones et al., 79 Or. 276, 155 P. 171; Lowell v. Pendleton Auto Co., 123 Or. 383, 261 P. 415; Application of Lee, 28 Cal. App. 719, 153 P. 992. Other cases which we have examined are cited to the same effect, but need not be set forth herein.
In 44 Corpus Juris, page 931, the general rule is stated as follows: “The power to regulate does not include the power to prohibit the public use of the streets, except temporarily, as where a street is closed pending construction work; but does include the power to prohibit a private or special use.” As against these cases the respondents call our attention to cases where a different rule is applied, and especially to the cases of State v. Mayo, 106 Me. 62, 75 A. 295, 299, 26 L. R. A. (N. S.) 502, 20 Ann. Cas. 512, and Commonwealth v. Kingsbury, 199 Mass. 542, 85 N. E. 848, L. R. A. 1915E, 264, 127 Am. St. Rep. 513. These cases have to do with conditions diametrically opposite to those existing at the time of the passage of the ordinance involved in this action. In the Mayo Case it appears that a public highway had been constructed along a precipitous mountainside. In considering the conditions presented the court said: “The use on such ways of the powerful, swiftly moving, and dangerous automobile must necessarily endanger all who travel thereon, and especially those who ride in carriages drawn by horses. Presumably to safeguard the people against such dangerous conditions the Legislature decided that the ordinance in question might be made.”
In the Kingsbury Case the court, after reciting that automobiles being vehicles of great speed, and frightful to most horses, expressed its views as follows: “In some parts of the state, where there is but little travel, public necessity and convenience have required the construction of ways which are steep and narrow, over which it might be difficult to run an automobile, and where it would be very dangerous for the occupants if automobiles were used upon them. In such places it might be much more dangerous for travelers with horses and with vehicles of other kinds if automobiles were allowed there.” These quotations show that the mind of the court was influenced by reasoning applicable to a horse-drawn vehicle age, and not to a time and place when the horse-drawn vehicle has entirely disappeared from city streets. Again, the record does not disclose that there are any dangerous or precipitous conditions on Olvera street.
A résumé of the cases leads us to the conclusion that, where the conditions on a street or highway are such as to render vehicular traffic thereon hazardous to the users thereof, or to others, the police power may be reasonably exercised so as to either regulate or prohibit vehicular traffic. No such conditions are shown to have existed on Olvera street at the time of amending Ordinance No. 50515 (N. S.), by adding thereto section 171/212, supra. Testimony based upon conditions existing months after the passing of the amended ordinance, to the effect that vehicular traffic would be hazardous on Olvera street while that highway is occupied by booths, stands, amusements, and alluring concessions, does not support findings necessary to a holding that the amendment to the ordinance in question was a reasonable exercise of police power. Such testimony properly and legally leads only to the conclusion that such obstruction should be immediately removed from the highway. A city cannot permit an illegal condition to be created upon a public street, and thereafter rely upon such condition to justify its unwarranted action which led to the creation of such a condition.
While the right of eminent domain to condemn easements has been incidentally mentioned, that power is not involved herein; likewise, the amendment to section 145 of the California Vehicle Act (St. 1923, p. 563), which became effective August 14, 1931 (St. 1931, p. 2131), reading: “And may close any street or highway to vehicular traffic when in the opinion of such legislative bodies such street or highway is no longer needed for vehicular traffic,” etc., called to our attention, can have no bearing upon the decision of this cause, for the simple reason that the effective date of the amendment is approximately two years later than the date of the adoption of the amendment to Ordinance No. 50515 (N. S.) of the city of Los Angeles. Even if such amendment were effective, it would be necessary for the conditions preceding the closing of the street to be such as to show the use of the street was no longer needed. We do not decide, though urged by counsel, that this would prevent the absolute closing of a street so as to bar the use thereof by abutting owners, such as is shown to have existed in the instant case preceding the action taken by the city council of the city of Los Angeles.
We have not reviewed the testimony of the respondents at length for the simple reason that an examination thereof shows that it is all based upon conditions subsequent and conditions allowed to be created after the amendment to Ordinance No. 50515 (N. S.) was adopted. All of this testimony is entirely irrelevant and cannot be relied upon to sustain the reasonableness of the ordinance in question. If the conditions existing at the time of the passage of the ordinance show it to be unreasonable, and the objects to be attained not within the purview of legitimate police regulations, the ordinance must fall, irrespective of what private parties have established after its enactment. We may add that the testimony of the traffic engineer of the city of Los Angeles shows that vehicular traffic on Olvera street might be reasonably regulated if the objectionable structures existing thereon were removed.
Without further review of the cases cited, we think it necessarily follows from what we have said, and what is shown by the record, that the attempted amendment of Ordinance No. 50515 (N. S.) by adding thereto section 171/212, supra, was beyond the reasonable exercise of the police powers of the city of Los Angeles, and must therefore be held, and is hereby held, to be absolutely void.
The judgment of the trial court is reversed.
Mr. Justice PLUMMER delivered the opinion of the court.
We concur: PULLEN, P. J.; R. L. THOMPSON, J.