Alexander v. Mitchell, 15787
| Decision Date | 24 August 1953 |
| Docket Number | No. 15787,15787 |
| Citation | 119 Cal.App.2d 816,260 P.2d 261 |
| Parties | ALEXANDER et al. v. MITCHELL, Mayor, et al. |
| Court | California Court of Appeals Court of Appeals |
Aaron M. Sargent, San Francisco, for petitioners.
Arnold Rumwell, City Atty., Palo Alto, Kirkbride, Wilson, Harzfeld & Wallace, San Mateo, for respondents.
Petition for writ of mandamus to compel respondent city clerk to examine and certify, and respondent mayor and councilmen of the city of Palo Alto, to pass or submit to the electorate, a certain ordinance.
Questions Presented.
1. May the people of a municipality abrogate the right of eminent domain, or is that right a matter of statewide concern?
2. May the people of a municipality declare that off-street parking places may not be acquired and improved by district assessment proceedings?
3. May the people of a municipality, contrary to state law, make assessment district proceedings subject to referendum, and may they by initiative repeal such projects already started?
4. Must an initiative ordinance invalid in most part be submitted to the electors because it contains a severability clause?
Record.
Petitioners claim to be qualified electors of Palo Alto and signers and circulators of the initiative petition hereafter described, and to represent the 2041 alleged electors who signed the petition. Palo Alto is a charter city. On February 20, 1953, petitioners filed said petition with respondent city clerk. It is conceded that the number of signatures, if the signers are qualified electors, is numerically sufficient under the Palo Alto Freeholders' Charter to require submission of the proposed ordinance at a special election. At the council meeting of March 2d, respondent city clerk, without examination of the signatures, presented the petition and asked for instructions. The council thereupon adopted a resolution instructing said clerk to file the petition, and directing that no further action be taken either by the clerk or the council.
Filed with the petition is an affidavit setting forth the history of the installation in Palo Alto of public parking meters and the planning of municipally operated off-street parking places and opposition thereto. This history culminated in the adoption by the council of Resolutions of Preliminary Determination 2381 and 2382. The first resolution determined that public convenience and necessity required the acquisition and improvement of University Avenue District Off-Street Parking Project No. 52-13 at an estimated cost of $250,000. The second resolution made a similar finding as to University Avenue District Off-Street Parking Project No. 52-14 to cost $1,150,000. Each project is to be financed by bonds against the respective district.
The Proposed Ordinance.
It is denominated 'An Ordinance to Protect Referendum Rights and Prohibit Eminent Domain in Parking Lot Proceedings.' It is divided into three parts: Part I, 'Initiative and Referendum.' Section 1, 'Declaration of Rights.' It reaffirms and declares that all political power is derived from the people who have direct legislative power in municipal affairs. This power is expressly reserved for them in the California Constitution, the Freeholders' Charter, and is based on freedoms secured by the Declaration of Independence and the United States Constitution. Section 2, 'Findings.' It is found and determined (a) that proceedings for the selection, location and acquisition of sites for off-street motor vehicle parking places raise questions of direct interest and concern to the entire community. Referendum rights are involved. The issues are not limited to parties residing, or owning property or doing business within proposed assessment districts. (b) There is a general community interest in all parking lot projects because of their direct relation to (1) zoning classification, (2) community planning, (3) public safety, (4) traffic congestion, (5) tax exemption, (6) tax burden, and (7) public credit. (c) The operation of a municipal off-street parking place is a semi-commercial enterprise, and its area is not a part of the public street system of the city. Section 3, 'Referendum.' All acts, ordinances and resolutions of the council designating or selecting sites for off-street parking are declared to be subject to referendum. Future measures of this type shall contain a clause reserving referendum rights. All ordinances and resolutions adopted in violation of this requirement are declared to be invalid.
Part II, 'Eminent Domain,' Section 4, 'Findings.' It is found and determined (a) That there is no public necessity justifying or requiring the exercise of the right of eminent domain by the city or any board, commission, officer or agency thereof, to acquire off-street parking sites. (b) Any land required for this purpose can be obtained by negotiation and purchase at its fair market value without use of the drastic power of condemnation. (c) These findings do not apply to proceedings to acquire parking areas adjacent to land occupied by public buildings.
Part III, 'Miscellaneous,' Section 5, 'Repeal.' All resolutions, ordinances and other acts of the council respecting the 'University Avenue Parking Lot Project' (Resolutions 2381, 2382 and the several modifications, amendments and revisions thereof) are repealed and rescinded. Section 6, 'Operation.' The ordinance supersedes and takes precedence over any and all ordinances, resolutions and other acts of the council in conflict therewith. It is retroactive and applies to pending actions as well as proceedings hereafter. The findings of fact are legislative determinations and binding as such, and are conclusive in all respects as provided by the Constitution and laws of this State. Section 7 is a severability clause.
Objectives of Proposed Ordinance.
It has three main objectives: 1. It finds, in effect, that off-street parking is such a matter of general concern that it may not be done by district assessment proceedings or if so done the proceedings are subject to referendum. 2. It finds, in effect, that eminent domain proceedings cannot be applied to the acquisition of off-street parking sites, except when such sites are adjacent to public buildings. 3. It repeals all proceedings of the city council concerning off-street parking heretofore had, particularly the resolutions starting the two University Avenue District projects.
Petitioner claims that the people of a community have reserved the right to take away from the city council, to whom the right has been given by charter, the right to determine the necessity for the use of eminent domain in the acquisition of off-street parking sites. As hereafter pointed out with reference to the same claim made as to assessment districts, the removal of such right, if the power exists, could only be done by charter amendment and not by ordinance.
While the initiative and referendum deal with the reserved powers of the people and should be liberally construed to uphold the power wherever that reasonably can be done, Collins v. City & County of S. F., 112 Cal.App.2d 719, 247 P.2d 362, nevertheless the right of eminent domain is a matter of statewide concern and being such cannot be abrogated by the people of a municipality. A city has no inherent power of eminent domain. City of Los Angeles v. Koyer, 48 Cal.App. 720, 192 P. 301; Mackay v. City of Los Angeles, 136 Cal.App. 180, 28 P.2d 706. It exercises it only because authorized by the State Legislature. Section 1241, Code of Civil Procedure, vests the power to make the determination of convenience and necessity in the members of 'the legislative body of a * * * city'. Those members could not do away with the power of eminent domain; neither can the people of a particular community. The legislative body, the council, can determine whether in a particular instance the public convenience and necessity require its exercise, but it could not determine, as this ordinance attempts to have the people do, that as to all off-street parking sites hereafter to be acquired the power need not be exercised. Such a finding, in effect, is an attempt to completely abrogate that power,--a vastly important power. Moreover, to make a blanket finding that any land required in any off-street parking project can be acquired by negotiation and purchase at its fair market value without condemnation is on its face absurd. The effect of the abandonment of the right of eminent domain would mean that if the city desires to acquire sites, the city would have to pay any price the owners might ask or else abandon the project. The very fact that the city can condemn in many instances causes the owner to accept the fair market value. Thus, it is an attempt by indirection to do away with all off-street parking altogether.
In Riedman v. Brison, 217 Cal. 383, 18 P.2d 947, 949, mandamus was sought to compel the submission of an initiative ordinance to have the city withdraw from a water district. It was held that the statute which provided the power to make the determination of convenience or necessity to withdraw from the district vested such power in the members of the "legislative body' of the city,' and not in the people. Because this was a power delegated by the Legislature it was not a municipal affair, and only as to municipal affairs can the initiative provisions of a charter apply.
Petitioner contends that the people have reserved to them all legislative rights; that the determination of whether the public necessity and convenience requires the acquisition and construction of off-street parking projects is a legislative matter; therefore the people may take away from the council the right to make such determination and make it themselves. Disregarding the state question involved and assuming the correctness of the contention, the taking...
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