40 Cal.2d 271, 21945, Simpson v. City of Los Angeles

Docket Nº:21945
Citation:40 Cal.2d 271, 253 P.2d 464
Opinion Judge:[11] Gibson
Party Name:Simpson v. City of Los Angeles
Attorney:[7] Brooks Gifford and Morris Lavine for Appellants. [8] Ray L. Chesebro, City Attorney, William H. Neal and Bourke Jones, Assistant City Attorneys, and Alan G. Campbell, Deputy City Attorney, for Defendants and Respondents. [9] Musick & Burrell, Howard Burrell, James E. Bednar, Stephens, Jones &...
Case Date:February 20, 1953
Court:Supreme Court of California

Page 271

40 Cal.2d 271

253 P.2d 464

EVA SIMPSON et al., Appellants,

v.

THE CITY OF LOS ANGELES et al., Defendants and Respondents

MEDICAL RESEARCH ASSOCIATION (a Corporation) et al., Interveners and Respondents.

L. A. No. 21945.

Supreme Court of California

Feb. 20, 1953

In Bank.

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COUNSEL

Brooks Gifford and Morris Lavine for Appellants. Ray L. Chesebro, City Attorney, William H. Neal and Bourke Jones, Assistant City Attorneys, and Alan G. Campbell, Deputy City Attorney, for Defendants and Respondents. Musick &amp Burrell, Howard Burrell, James E. Bednar, Stephens, Jones &amp La Fever, Raymond W. Stephens, McGinley &amp Hanson and John P. McGinley for Interveners and Respondents

OPINION

GIBSON, C.J.

Plaintiffs seek to restrain defendant city and two officials from carrying into effect subsection (h) of section 53.11 of a Los Angeles city ordinance [*] which provides,

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in part, that the Department of Animal Regulation shall surrender unclaimed animals which have been impounded for five days to reputable institutions of learning, hospitals and laboratories that have been certified by the city health officer as organizations which will use animals humanely for the good of mankind in medical research. General demurrers were sustained with leave to amend. Plaintiffs failed to amend, and judgment was thereafter entered in favor of defendants.

The complaint alleges that three of the plaintiffs are resident taxpayers who own dogs licensed by the city, that the fourth plaintiff resides in adjacent unincorporated territory and owns a dog licensed by the county, that these dogs have recently become estrays without fault on the part of their respective owners and that plaintiffs have made due and diligent inquiry but have been unable to locate their pets. There is no allegation as to what happened to the dogs, but it is alleged that they are subject to seizure and impounding by the Department of Animal Regulation and that defendants threaten to enforce subsection (h) of section 53.11 and to surrender unclaimed impounded dogs for medical research. It is contended that this portion of the ordinance is invalid because of asserted irregularities in connection with the election at which it was adopted, that it conflicts with state law, that its enforcement will deprive plaintiffs of their dogs without due process of law and constitute an unlawful taking of private property, and that it provides for a gift of public property. It is also asserted that the ordinance improperly vests uncontrolled discretion in the health officer and permits him to discriminate arbitrarily between research institutions and that it is invalid as special legislation because it grants privileges to a limited class of institutions.

A preliminary question has been raised as to plaintiffs' right to bring the action, but it is sufficient to note that the complaint alleges that three of the plaintiffs are resident citizens and taxpayers of the city and that enforcement of the ordinance will result in unlawful expenditures of municipal funds. As such taxpayers, they are entitled to sue to prevent the alleged illegal expenditures. (Code Civ. Proc., section 526a; Clouse v. City of San Diego, 159 Cal. 434, 438 ; Wirin v. Horrall, 85 Cal.App.2d 497, 504-505 ; see Crowe v. Boyle, 184 Cal. 117, 152 ; Yarnell v. City of Los Angeles, 87 Cal. 603, 610 .)

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In support of their claim that subsection (h) was not legally adopted, plaintiffs allege that the opponents of the measure followed instructions from an assistant city attorney that any printed arguments which the opponents desired to have mailed to the voters with the sample ballots must be on newsprint of a specified size and that no rotogravure would be allowed. Plaintiffs complain that the city clerk permitted proponents of the measure to use leaflets of a larger size which were processed by rotogravure on slick paper, and that as a result a substantial number of voters cast their votes in favor of the measure because of the more attractive appearance of proponents' arguments. Courts are reluctant to defeat the fair expression of popular will in elections and will not do so unless required by the plain mandate of the law. (See Davis v. County of Los Angeles, 12 Cal.2d 412, 426-427 ; In re East Bay etc. Water Bonds of 1925, 196 Cal. 725, 744 ; Rideout v. City of Los Angeles, 185 Cal. 426, 430 .) It is asserted by defendants, and not disputed by plaintiffs, that the arguments were prepared pursuant to sections 275 and 289 of the Los Angeles City Charter, which provide that the clerk shall prescribe the form of printing and the character of paper to be used. There is no allegation in the complaint that the city clerk acted improperly or that he was aware of the instructions assertedly given to the opponents of the measure by the assistant city attorney. Moreover, it does not appear that the assistant city attorney had any authority to bind the city by giving such instructions. It follows that the matters complained of do not constitute grounds for invalidating the adoption of the measure.

Plaintiffs also allege that the argument of the proponents which was mailed to the voters failed to conform with the provisions of section 343 of the Election Code of the City of Los Angeles. The complaint, however, does not quote the language of the section or state its effect, nor does it give the title or date of passage. (See Code Civ. Proc., section 459.) We cannot take judicial notice of city ordinances. (See City of Oakland v. Brock, 8 Cal.2d 639, 641 .) Under the circumstances the pleading is insufficient. (City of Tulare v. Hevren, 126 Cal. 226, 229-231 .)

The next question is whether the portion of the ordinance under attack is invalid because of asserted conflicts with state laws. In our opinion, the licensing, impounding

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and disposition of dogs is not exclusively a municipal affair, and, therefore, if there is any conflict between the ordinance and the state law, the latter will prevail. (Const., art. XI, section 11; see Eastlick v. City of Los Angeles, 29 Cal.2d 661, 666 [170 A.L.R. 225]; In re Portnoy, 21 Cal.2d 237, 239-240 ; Pipoly v. Benson, 20 Cal.2d 366, 370-371 [147 A.L.R. 515].) The city, however, under its police power, may enact local measures which do not conflict with general statutes. (Const., art. XI, section 11.)

Sections 391 to 403 of the Agricultural Code do not operate to invalidate the ordinance. The code sections regulate the seizure and disposition of estrayed stock and domestic animals generally, and it is expressly provided that nothing therein shall affect municipal regulations regarding estrays. (Agr. Code, section 400.) Similarly there is no inconsistency between subsection (h) and another general law which relates to the running at large of dogs and the protection of livestock and provides for the licensing, impounding and disposition of dogs. (1 Deering's Gen. Laws, Act 384; Stats. 1921, p. 1306, as amended.) Subsection (h) will, of course, be read as applying only to dogs which have been lawfully impounded, and the statute expressly recognizes the power of local bodies to provide for "the killing in some humane manner or other disposition of" lawfully impounded dogs. (1 Deering's Gen. Laws, Act 384, sections 6, 7.5.)

Sections 597, 599b and 599c of the Penal Code which define and prohibit cruelty to animals are applicable generally throughout the state, but they do not occupy the field in which the ordinance operates, and there is nothing therein which conflicts with their provisions. Section 599c of the Penal Code provides that nothing in the sections relating to cruelty to animals shall be construed as "interfering ... with properly conducted scientific experiments or investigations performed under the authority of the faculty of a regularly incorporated medical college or university of this state." It thus appears that the basic purpose of section 599c is to limit the effect of the provisions prohibiting cruelty to animals rather than to regulate the disposition of impounded animals. The section does not purport to designate all the institutions which may receive such animals for experimental purposes or to forbid experimentation by other than those it names, and it cannot reasonably be said that the Legislature intended to indicate that proper and humane

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experiments can be conducted only under the authority of the faculty of a regularly incorporated medical college or university. While it is true that, under the ordinance, research institutions other than medical colleges or universities may receive animals for experimental purposes, this obviously does not conflict with the Penal Code prohibition of cruel or improper experiments. Instead, as we have seen, it is specifically provided that the hospitals or research institutions which receive dogs must have been certified as organizations which will use them "humanely ... for the good of mankind and the increase of knowledge relating to the cause, prevention, control and cure of disease." Our conclusion in this connection is strengthened by sections 1650 to 1677 of the Health and Safety Code, enacted in 1951, which provide for state regulation of the use of animals for medical research. Sections 1651 and 1667 permit such use by any "person ... laboratory, firm, association, corporation, copartnership, and educational institution," upon compliance with certain rules, and section 1670 expressly provides that nothing in this chapter shall be construed to limit or restrict the right of cities to adopt or enforce ordinances regulating the use or procurement of animals for medical research.

We come next to plaintiffs' contention that enforcement of the ordinance will deprive them of their property...

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