American Distilling Co. v. City Council of City of Sausalito

• Decision Date: 24 January 1950
• Citation: 18 A.L.R.2d 1247,213 P.2d 704,34 Cal.2d 660
• Court: California Supreme Court
• Parties: , 18 A.L.R.2d 1247 AMERICAN DISTILLING CO. v. CITY COUNCIL OF CITY OF SAUSALITO et al S. F. 17785.

Page 704

213 P.2d 704

34 Cal.2d 660, 18 A.L.R.2d 1247

AMERICAN DISTILLING CO. v. CITY COUNCIL OF CITY OF SAUSALITO et al

S. F. 17785.

Supreme Court of California, in Bank.

Jan. 24, 1950.

John B. Ehlen, San Francisco, for appellants.

Norman A. Eisner and Samuel W. Wicklow, San Francisco, for respondent.

SHENK, Justice.

The petitioner, American Distilling Co., commenced this mandamus proceeding in the Marin County superior court to compel the City Council of the City of Sausalito to terminate certain annexation proceedings. The appeal is from a judgment ordering a peremptory writ.

On October 24, 1947, pursuant to the Annexation of Uninhabited Territory Act of 1939, Stats.1939, p. 1567, Deering's General Laws, Act 5162, the city council by resolution commenced proceedings to annex uninhabited territory contiguous to the northern boundary of Sausalito. This territory includes the industrial property of the petitioner and the property of the United States Government known as Marinship. November 18, 1947, was fixed as the time when the owners of the real property proposed to be annexed could appear and protest. The petitioner filed a written protest, appeared at the hearing on November 18, 1947, and objected to further action on the part of the city council. At the final hearing on January 6, 1948, the United States Government filed a written protest. At all times the petitioner insisted upon the sufficiency of its own protest to require a determination that the city council was without power to approve the annexation.

Section 6 of the Annexation of Uninhabited Territory Act of 1939 provides:

'At any time not later than the hour set for hearing objections to the proposed annexation, any owner of property within the territory propsed to be annexed may file written protest against the proposed annexation. * * * At the time set for hearing protests the legislative body of such municipal corporation shall proceed to hear and pass upon all protests so made and if it be found that protest is made by the owner or owners of one-half of the value of the territory proposed to be annexed according to the last equalized assessment roll, no further proceedings shall be taken in connection with the proposed annexation.'

Section 7 provides: 'If it be found that protest is not made by the owner or owners last above mentioned, the legislative body of such municipal corporation must by ordinance approve or disapprove such annexation.'

The petitioner's objection to further proceedings by the city council was based on the contention that the 1947 equalized assessment roll in Marin County was the last equalized assessment roll within the meaning of the statute; that the holdings of the petitioner and of the United States comprised the entire territory sought to be annexed; that the lands owned by the federal government were non-assessable and were assessed as of no value on the 1947 assessment roll, and therefore that the petitioner's protest was sufficient to prevent annexation.

The city council declined to make a finding that a written protest had been filed by the owner of one-half in value of the territory proposed to be annexed according to the 1947 equalized assessment roll or to terminate the proceedings. At the January 6th meeting a resolution was adopted rejecting the protest of the United States for the reason that it was not filed within time. The city council then determined that legal protest had not been presented by the owner of one-half in value of the territory proposed to be annexed according to the last equalized assessment roll, and the city attorney was instructed to prepare an ordinance approving the annexation. This ordinance was presented and held for final action on Tuesday, February 2nd.

The following took place all in 1948: The present proceeding was commenced on January 19th. An alternative writ was issued directing the city council to make a finding that a protest was duly made by the owner of one-half in value of the territory proposed to be annexed according to the last equalized assessment roll; to set aside any determination to the contrary, and to terminate the annexation proceedings or show cause on January 26th why it has not done so. The city council's demurrer was overruled and an answer was filed on February 27th. On March 5th the matter was set down for trial on March 22nd.

On the trial date the petitioner filed a supplemental petition seeking to set aside an ordinance adopted on March 16th by which the city council had approved the annexation on the supposition that a sufficient protest had not been presented. Counsel for the city moved to dismiss the mandamus proceeding on the ground that the annexation ordinance had been adopted and that the granting of relief would interfere with the performance of a legislative act. The motion was denied.

After a hearing on the merits the trial court found that the last equalized assessments roll as contemplated by section 6 of the Act was the 1947 assessment roll of Marin county; that that roll showed the real property of the petitioner to have been assessed at $137,585.00; that the real property of the United States was assessed at '0'; that the petitioner was the only owner of property in the territory which had assessable value and which was assessed at any amount, and that since the petitioner had duly protested in the annexation proceedings it was entitled to the relief sought. The judgment declared the ordinance void, directed the issuance of a peremptory writ commanding the city council to make a finding in accordance with the undisputed facts, and to adopt a resolution setting aside the ordinance and the annexation proceedings.

The city council raises the preliminary question of the power of the trial court to enter any judgment at all in this proceeding. The contention is that the judgment operated as an unlawful interference with the exercise of legislative power. Reliance is placed on the general rule, both statutory and decisional, that under the doctrine of separation of powers the courts will not interfere with the legislative process. Sec. 3423, subd. seventh, Civ.Code; Sec. 526, Subd. 7, Code Civ.Proc.; Johnston v. Board of Supervisors, 31 Cal.2d 66, 187 P.2d 686; Berkeley High School Dist. of Alameda County v. Coit, 7 Cal.2d 132, 59 P.2d 992; Nickerson v. San Bernardino County, 179 Cal. 518, 177 P. 465; Glide v. Superior Court, 147 Cal. 21, 81 P. 225. On the other hand the petitioner invokes certain recognized exceptions applicable to municipal and other inferior legislative bodies. See Spring Valley Water-Works v. City of San Francisco, 82 Cal. 286, 22 P. 910, 1046, 6 L.R.A. 756, 16 Am.St.Rep. 116; Inglin v. Hoppin, 156 Cal. 483, 105 P. 582; San Christina Inv. Co. v. City and County of San Francisco, 167 Cal. 762, 141 P. 384, 52 L.R.A.,N.S., 676; and see Berkeley High School Dist. of Alameda County v. Coit, supra, 7 Cal.2d at page 137, 59 P.2d 992. It is deemed unnecessary to consider this problem. The contention of the city council assumes that it had authority to exercise a legislative function under the statute and the facts of this case. The undisputed facts and the statutory provisions require a holding that the city council had only the power and duty to terminate the annexation proceedings.

It is not questioned that in the annexation proceedings the statute constituted the measure of the power to be exercised by the city council. Kleiber v. City and County of San Francisco, 18 Cal.2d 718, 724, 117 P.2d 657. As hereinabove noted the statute provided for a hearing by the city council to determine the sufficiency of the protests. Pursuant to section 6 if protest was duly made by the owner or owners of one-half of the value of the territory proposed to be annexed according to the last equalized assessment roll, the matter was at an end and the city council had no power or authority to do anything except to terminate the proceedings. If the protests were insufficient the city council was then authorized and required by section 7 to enact an ordinance either approving or disapproving the annexation.

The character of the action of the city council, called generally the legislative body, in a particular case depends on the nature of the act or duty and the provisions of the statute under which it is performed. Here the statute makes the distinction between non-legislative and legislative action by directing exercise of the latter function only when the protests are shown to be insufficient.

This court in other cases has recognized the division between the administrative or other non-legislative function preceding the performance of the legislative act where constitutional or statutory requirements were involved. McFadden v. Jordan, 32 Cal.2d 330, 196 P.2d 797; Gage v. Jordan, 23 Cal.2d 794, 147 P.2d 387; Epperson v. Jordan, 12 Cal.2d 61, 64, 82 P.2d 445, and cases cited.

The issue before the trial court in this mandamus proceeding was therefore whether the city council had exceeded its statutory authority in determining that the protests were insufficient. It is contended that the court's finding that the protests were sufficient is unsupported.

Section 6 of the Act required the city council to base a determination of the sufficiency of the protests on the assessed value of the properties according to the last equalized assessment roll, see Bryant v. Board of Supervisors, 3i Cal.App. 495, 504, 163 P. 341. The court correctly concluded that the 1947 assessment roll was the roll to be considered. The city council purported to ignore the plain wording of the statute and to impute a value to the government owned land according to the 1938 assessment roll which was the last roll showing this land in private ownership and to be assessable; and at the same time to compute the 1947 assessed value of the petitioner's...