CITY AND COUNTY OF SAN FRANCISCO v. BUDDE (1956)

Petitioner's main contention is that the amendment of Harbors and Navigation Code section 3131, like the section itself, relates to the width of the roadway and to the sidewalk of the Embarcadero only and therefore cannot grant power to the Board to close Francisco Street or to act in violation of Harbors and Navigation Code sections 3137 and 3138.

Although it is true that the amendment relates to the power of the Board as to the Embarcadero itself only, the significant point is that the changes complained of were made solely on the Embarcadero itself and fully in accord with the power given in the amendment, which dispelled any doubt which may have existed as to whether the action of the Board violated section 3131, supra. Petitioner has not convinced us that there is any ground which causes the works complained of nevertheless to be illegal. Francisco Street has not been closed, but only its direct communication with the Embarcadero for vehicular traffic prevented. Rules relating to closing of streets have no application. Harbors and Navigation Code section 3137, which provides for extension of the city streets so as to intersect the Embarcadero, does not expressly provide that the direct vehicular traffic between the Embarcadero and any such extended street, however unimportant, is sacrosanct and we decline to give it such meaning by interpretation. Harbors and Navigation Code section 3138 prohibits the obstruction of the streets near the waterfront as thoroughfares by using them for loading and landing of merchandise. Francisco Street has not been used in such manner. Both provisions predate the construction of the State Belt Railroad and should not be construed to limit the power of the Board in relation to said railroad and its tracks when their language does not so require. The amendment of section 3131 directs the Board to consider the best interest of both vehicular and railroad traffic and there is no evidence whatever showing that the Board has abused its discretion in that respect. Neither is there any showing that any obstruction of the right of way to navigable water required for a public purpose, Cal.Const. Art. XV, § 2, is actually here involved, so that it is unnecessary to decide whether said section would apply to obstruction by the Board.

The following modifications are made in the opinion:

Page 1 line 3 from bottom: The words ‘The State-owned Port of San Francisco’ are deleted and replaced by ‘The Embarcadero forms part of the tideland which’.

Page 2 line 1: After the word ‘maintained’, the words ‘the Embarcadero as a’ are inserted.

Page 2 line 11: The word ‘as' is deleted and replaced by ‘in connection with’.

Page 2 line 17: The word ‘merely’ is deleted.

Page 2 lines 19 and 20: The sentence beginning ‘The real issue’ is deleted and replaced by ‘The issue of power is simple.’

Page 2 line 21: The words ‘the area known as' are deleted.

The petition for a rehearing is denied.

NOURSE, Presiding Justice.

DOOLING, J., votes for a rehearing.