Thursday, May 15, 2008
DCA Hands MacDonald Victory In Olvera Street Case
By ROGER M. GRACE
Los Angeles attorney J. Wiseman MacDonald was no doubt beaming on Nov. 21, 1934. It was on that date that the Third District Court of Appeals embraced his argument that when the Los Angeles City Council enacted an ordinance, effective Oct. 12, 1929, closing Olvera Street to vehicular traffic, it acted in excess of its police power.
Los Angeles Superior Court Judge Caryl Sheldon had rejected that broad assault by MacDonald on the city’s action. Nonetheless, in his judgment of Dec. 24, 1931, Sheldon did substantially vindicate the peculiar interests of MacDonald’s client, Constance Simpson, who owned a building at the southwest end of the historic lane. Olvera Street had recently been refurbished and converted into a pedestrian tourist attraction with an early-California theme—and had come to be often referred to as “El Paseo [walkway] de Los Angeles.”
Simpson’s beef was that vehicles no longer had access, for loading and unloading purposes, to the rear side of her building, on Olvera Street, which had long functioned as an alley. Access did still exist from the front, on Main Street.
As noted here last week, Sheldon ordered that concessionaires’ booths on the Olvera Street side of Simpson’s structure be removed and that the chain blocking vehicles from entering that street at the south side be moved north a few feet, creating an area for parking.
Simpson basically got what she wanted. Nonetheless, she appealed, and the appeal was—I haven’t come across why—shifted to Sacramento.
Justice John A. Plummer wrote the opinion. It is grounded on this proposition, quoted from Corpus Juris Secundum:
“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.”
Underlying the opinion was the errant notion that selfless efforts spearheaded by Christine Sterling, and backed by civic leaders and the Los Angeles Times, to preserve one of the city’s two earliest streets—and along with it the oldest standing house, Avila Adobe—were intended to serve a private cause, rather than the public interest.
The opinion asks:
“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 [a non-profit corporation] to beautify Olvera street and make an attractive show place….”
That purpose, the opinion declares, “is not police regulation.”
Aside from condemning the ordinance as special interest legislation, the opinion more broadly questions the legitimacy of the measure, saying:
“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.”
Seizing on that last sentence, a column by Harry Carr appearing in the Nov. 24 edition of the Times scoffs:
“And so by the profundity of the court, we learn that transforming a miserable wretched slum into one of the most charming spots in the world is not promoting the general welfare.”
The column notes that before Olvera Street was transformed into a themed walkway, it was “a dirty, vile-smelling old alley” at “a decayed end of town.”
A Nov. 23 Times editorial remarks that the court’s decision “has dealt a serious but not necessarily irremediable blow to the large number of patriotic citizens who have labored so long to establish here a feature unique to Los Angeles,” continuing:
“It will not, however, discourage them. It will spur them to present a more complete case for saving the Mexican village when the petition for a rehearing is brought before the State Supreme Court. In fact the issue, if necessary, will be carried to the United States Supreme Court is the declaration of Mrs. Christine Sterling, who has taken the leading part in promoting this civic enterprise.
“Olvera Street has not only been a delightful rendezvous for the artists of southern California but has been leading attraction for tourists visiting the city. [First Lady] Mrs. Franklin D. Roosevelt is one of those who have extolled its charm. More than 5000 tourists have on occasions visited it in a single day.
“From a utilitarian standpoint, Olvera street has a value in its present form that it win never possess as a through thoroughfare. It will simply go back to its former state, that of an unsightly alley. In addition it will place 250 now self-supporting Mexican families on the county charity rolls. If the judges who rendered the decision could have seen for themselves what Olvera street looks like today, and what it was and will again be if the village is destroyed, they might have taken a different view of the case.”
Copyright 2008, Metropolitan News Company
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