Simpson v. Hite

• Decision Date: 29 September 1950
• Citation: 222 P.2d 225,36 Cal.2d 125
• Court: California Supreme Court
• Parties: SIMPSON v. HITE. L. A. 21678.

Page 225

222 P.2d 225

36 Cal.2d 125

SIMPSON v. HITE.

L. A. 21678.

Supreme Court of California, in Bank.

Sept. 29, 1950.

Rehearing Denied Oct. 26, 1950.

Loeb & Loeb, Herman F. Selvin and Dana Latham, Los Angeles, for petitioner.

Harold W. Kennedy, County Counsel, A. Curtis Smith, Assistant County Counsel, Los Angeles, and Clarence H. Langstaff, Deputy County Counsel, Sacramento, for respondent.

Morrow & Trippet, Fred M. Cross, Oscar A. Trippet, F. B. Yoakum, Jr., Bailie, Turner & Lake, Robert Baker, Bodkin, Breslin & Luddy and Henry I. Dockweiler, Los Angeles, Louis T. Fletcher, So. Pasadena, Freston & Files, Haas & Home, Elmer H. Howlett and Clifford E. Hughes, Los Angeles, F. A. Knight, Long Beach, Kenyon F. Lee, L. H. Phillips, John W. Preston, Stanton, Stanton & Wellborne, Irving Walker, Westover & Smith, Mabel Walker Willebrandt, Emmet H. Wilson, Jr., J. Marion Wright and E. R. Young, Los Angeles, for real parties in interest.

SCHAUER, Justice.

Petitioner asks that this court by mandate direct respondent, registrar of voters of Los Angeles County, to omit a proposed initiative ordinance from the ballot to be used at the general election to be held November 7, 1950. The principal provisions of the proposed ordinance, in substance and effect, are (1) the repeal of resolutions of the Los Angeles County Board of Supervisors which designate, and pursuant to which the county has acquired, a site for municipal and superior courts buildings; (2) a declaration of the will of the people that such site be used for parking or some other useful purpose; and (3) a designation of another site for a building or buildings to house the courts. It appears also that as a necessary incident of the foregoing provisions, the ordinance would require the withdrawal by the county from, or abandonment of, contracts heretofore made for, or as preliminary to, the construction of the courts buildings on the already acquired site.

Respondent has joined issue by demurrer to the petition, and the proponents ¹ of the proposed initiative ordinance have filed a demurrer and answer. Upon the facts pleaded, as admitted by the demurrers and by the answer, we have concluded that the proposed ordinance deals with administrative matters which, under state law, are committed solely to the board of supervisors; therefore, the ordinance is not within the initiative function and the peremptory writ should issue.

By state law ² boards of supervisors are required to provide 'suitable quarters' for superior and municipal courts. Such state law leaves to the boards of supervisors to determine, in each case, what is required to constitute 'suitable quarters.' It is undisputed that suitable quarters for such courts are wanting and are needed in Los Angeles County, and that the board of supervisors has so determined. Some three years prior to the filing of the proposed initiative ordinance, the board of supervisors decided upon an area north of Temple Street, bounded on the east by North Broadway, as a site for a municipal courts building and a superior courts building. On June 26, 1947, the Los Angeles city planning commission duly approved the site proposed by the supervisors for the municipal courts building and on August 26, 1948, the commission duly approved the site for the superior courts building. ³ Between October 14, 1947, and July 6, 1948, the board of supervisors adopted a series of resolutions designating and directing acquisition of the area north of Temple Street as a site for the courts buildings. Pursuant to these resolutions, and in performance of the duty enjoined by the state law, the property was acquired at a cost of $1,550,085.61. The board appropriated and allocated funds aggregating $10,699,700 for construction of the buildings on the acquired site; of such funds it has spent $54,517.62 budgeted under the Accumulative Capital Outlay Act (Stats.1937, ch. 717; Stats.1949, ch. 14, Gen.Laws, Act 8496a) 'for the purpose of constructing' the superior courts building, and $484,883.98 appropriated from general funds 'for purposes directly connected with the construction of said courts building.' It employed architects who prepared plans for the buildings; it has paid the architects $170,654.40 for their services in respect to the municipal courts building and $507,305.34 for their services in respect to the superior courts building; further fees which it has agreed to pay the architects are payable as construction of the buildings progresses. (The possible liability of the county for further fees or damages in the event that the partially completed project is abandoned is as yet undetermined.) After public hearing the city planning commission duly approved the extent of such buildings and their situation on the area selected as a site. The board of supervisors called for bids for construction of the superior courts building and entered into a contract with the board of the Retirement Association ⁴ of the County of Los Angeles whereby the latter agreed to erect the municipal courts building and to lease it to the county. (The amount of liability, if any, on this contract in the event of withdrawal or abandonment by the county is another undetermined matter.)

At this stage in the carrying out of the project, on August 25, 1950, the initiative petition now in question was filed with the respondent. The area designated by the proposed initiative ordinance as a substitute site for the location of any new courthouse or courts building is south of Temple Street, bounded on the east by North Broadway, immediately across Temple Street from a portion of the site designated and acquired by the board of supervisors.

It is observed that the act of the board of supervisors in determining that 'suitable quarters' for the superior and municipal courts were wanting and were needed, and that the provision of such quarters entailed the procurement of a suitable site and the construction of adequate buildings, does not appear to have been challenged by referendum or otherwise, and is not attacked by the proposed initiative ordinance. It is only the designation of the site which has already been acquired, and, perforce incidentally, the making of the architectural and construction contracts which are extant, that are attacked. Under the circumstances of this case, are these matters within the reach of the initiative?

The powers of initiative and referendum in Los Angeles County apply only to acts which are legislative in character, and not to executive or administrative acts. (See Housing Authority v. Superior Court (1950), 35 Cal.2d 550, 219 P.2d 457; Essick v. City of Los Angeles (1950), 34 Cal.2d 614, 624, 625, 213 P.2d 492; note, 122 A.L.R. 769.) The state legislature has declared the legislative policy applicable here: that the board of supervisors shall provide suitable quarters for the municipal and superior courts. (Deering's Gen.Laws, Act 5238, § 22, Stats.1947, ch. 1101 § 1 ('The board of supervisors shall provide suitable quarters for the municipal courts'); Code Civ.Proc., § 144 ('If suitable rooms for holding the superior courts * * * are not provided in any county by the supervisors thereof, * * * the courts * * * may direct the sheriff of the county to provide such rooms'); Ex parte Widher (1891), 91 Cal. 367, 369, 27 P. 733 ('It will be conceded upon all sides that it is the duty of the board of supervisors to prepare suitable rooms * * * for the use of the judges of the superior courts'); Gov.Code, § 25351, Stats.1947, ch. 424, § 1 ('The board may construct, lease, build * * * or repair buildings for a * * * courthouse * * * and such other public buildings as are necessary to carry out the work of the county government').)

It seems obvious beyond the reach of serious argument that the board of supervisors cannot perform the duty of providing 'suitable quarters' for the courts without selecting and designating the sites of the buildings to house the courts, as well as the character and size of the buildings. The determination of what is 'suitable' as quarters for the courts necessarily includes the selection of a site as well as ascertainment of the extent and character of accommodations which a building or buildings must contain. Prescribing the policy and duty was the legislative act of the state; carrying out the policy by performing the duty is an administrative function delegated by the state to the local governing body, the board of supervisors. 'The governing body of the (local political subdivision) * * * by its resolution did not make a law but thereby acted in an executive or administrative capacity as an instrumentality of the state to make operative the provisions of a state law already existing.' (State v. Butler (1945), 145 Neb. 638, 17 N.W.2d 683, 690; see also Kleiber v. City and County of San Francisco (1941), 18 Cal.2d 718, 725, 117 P.2d 657; Housing Authority v. Superior Court (1950), supra, 35 Cal.2d 550, 219 P.2d 457; State v. Salome (1949), 167 Kan. 766, 208 P.2d 198, 208; Seaton v. Lackey (1944), 298 Ky. 188, 182 S.W.2d 336, 339; Dickson v. Hardy (1932), La.App., 144 So. 519, 526.)

Here the state has acted to establish the basic policy and has vested the responsibility for carrying out that policy in a board of supervisors. The steps which the board has taken to carry out the state policy the determination that for 'suitable quarters' it was necessary or expedient to erect new buildings rather than to continue to use existing buildings, the fixing of sites for the buildings to make them convenient for the purpose to be served, the determination of the size of the buildings, the arrangement of space therein to provide court rooms, jury rooms, judges' chambers and all the other details which enter into implementing the legislative act of the state viewed as parts of the entire project, are all inextricably interwoven and related. We are satisfied that, regardless of what might be the character of a...