City Council of City of Santa Barbara v. Superior CourtIn and For Santa Barbara County

• Decision Date: 01 April 1960
• Citation: 3 Cal.Rptr. 796,179 Cal.App.2d 389
• Court: California Court of Appeals Court of Appeals
• Parties: CITY COUNCIL OF the CITY OF SANTA BARBARA, and Edward L. Abbott,Ralph H. Wilson, Frank Arguelles, Ward Scott, Gerald S. Firestone, Klaus Kemp, and Ernest W. Days, as Members thereof, Petitioners, v. SUPERIOR COURT of the State of California IN AND FOR the COUNTY OF SANTA BARBARA, Respondent, and Public Sanitation and Service, Inc., Real Party in Interest. Civ. 24503.

Page 796

3 Cal.Rptr. 796

179 Cal.App.2d 389

CITY COUNCIL OF the CITY OF SANTA BARBARA, and Edward L. Abbott,Ralph H. Wilson, Frank Arguelles, Ward Scott, Gerald S. Firestone, Klaus Kemp, and Ernest W. Days, as Members thereof, Petitioners, v. SUPERIOR COURT of the State of California IN AND FOR the COUNTY OF SANTA BARBARA, Respondent and Public Sanitation and Service, Inc., Real Party in Interest.

Civ. 24503.

District Court of Appeal, Second District, Division 2, California.

April 1, 1960.

As Modified April 29, 1960.

Stanley T. Tomlinson, City Atty., Santa Barbara County, Ardy V. Barton, Asst. City Atty., Santa Barbara, for petitioners.

Vern B. Thomas, Dist. Atty., Santa Barbara County, Santa Barbara, for respondent.

A. D. Haines and Cornwall & Westwick, Santa, Barbara, for real party in interest.

ASHBURN, Acting Presiding Justice.

Petition brought by the members of the City Council of the City of Santa Barbara for writ of prohibition restraining further action of the Superior Court of the County of Santa Barbara upon a mandamus petition filed therein by Public Sanitation and Service, Inc., which seeks a judgment commanding the City Council to grant to it higher rates for residential garbage collection service under an existing contract for the collection and disposal of refuse and rubble within said city. Such increase has been refused by the City Council after several hearings upon petition therefor.

The prayer of the petition for mandate is that a writ issue 'commanding said Respondents to increase your Petitioner's monthly rate for service to residences under said contract to such amount as the evidence heretofore presented to Respondents shows your Petitioner to be entitled to, or to show cause before this Court at a specified time and place why Respondents have not done so, in which latter case your Petitioner prays that this Court exercise its independent judgment in the matter, fix the amount of such rate increase on the basis of evidence then to be presented.' Demurrer to the petition having been overruled the superior court issued an alternative writ of mandate directed to the city and the members of the city council commanding them to 'grant to said Petitioner an increase in said residential rates in accordance with the petitions, audits and evidence heretofore presented and filed with you in support thereof,' or to show cause at a specified time why they have not done so.

Upon application of the members of the city council this court granted an alternative writ of prohibition directing the lower court to desist and refrain from further proceedings in said mandamus action until further order of this court. To this writ respondent court made a return saying that it has complied therewith and will continue to do so until final determination of this court; respondent court has taken no further part in this proceeding. Although counsel for the real party in interest, Public Sanitation and Service, Inc., filed points and authorities in opposition to issuance of an alternative writ, said real party made no return to the writ but did appear through counsel upon oral argument and presented an argument against issuance of a peremptory. (For convenience we will refer to the real party in interest as respondent except where otherwise indicated.)

In this posture of the case we proceed as if upon general demurrer to the petition for prohibition and accept as true all the factual allegations thereof. See, Code Civ.Proc. §§ 1105, 1088, 1094; Goldman v. Superior Court, 124 Cal.App.2d 165, 166, 268 P.2d 134.

Counsel for petitioners primarily argue for the position stated in paragraph IX of the prohibition petition: 'That the city council has failed and refused to pass a law to change the rates for refuse collection on the ground, among others, that said matter is within its sound and exclusive legislative discretion and that the respondent court cannot constitutionally compel it to enact legislation.'

On February 9, 1956, after an award pursuant to competitive bidding, the city entered into a contract with W. C. Estes and Mary C. Estes, 'the best and most responsible bidder' for collection and disposal of refuse and rubble within the city for a period of ten years from March 1, 1956. The contract was assigned to Public Sanitation and Service, Inc. on April 16, 1958, with the city's consent. The contract requires payment to the city of a minimum annual amount of $20,000, 'or a percentage not less than 5.1% of annual gross receipts, whichever amount is greater.' The agreement also requires the posting of a faithful performance bond of $20,000 covering, among others, the covenant of paragraph 1 of the section headed 'Rates': 'For any services required to be performed under this contract Contractor shall not charge any amount in excess of the rates fixed hereunder until or unless such rate or rates are modified by action of the City Council, and amendment hereof.' The method of effecting any rate adjustment is prescribed in paragraphs 3 and 4 of the 'Rates' section, as follows: '3. The Contractor may, at any time, petition the City Council for rate adjustments. Such petition shall be accompanied by and be based upon a certified audit of the Contractor's operations and revenues for the period following original establishment or latest City review of rates, such audit to be at Contractor's expense. The City Council shall authorize rate adjustments only on presentation of evidence that such adjustments are essential to continued operation by the Contractor and a reasonable return on his investment under the contract. 4. The City Council may at any time initiate rate review by requesting the Contractor to furnish information required to determine the necessity for rate increases or decreases.' These paragraphs are identical with corresponding paragraphs of Ordinance No. 2523 pursuant to which the contract was made.

It should be emphasized that any adjustment of rate can be accomplished only by amendment of ordinance No. 2523--'modified by action of the City Council'--and amendment of the contract itself. That this calls for legislative action seems clear. 'A legislative act is said to be one which predetermines what the law shall be for the regulation of future cases falling under its provisions, while a judicial act is a determination of what the law is in relation to some existing thing done or happened.' Wulzen v. Board of Supervisors, 101 Cal. 15, 24, 35 P. 353, 357. The fixing or refixing of rates for a public service is legislative, or at least quasi legislative. Southern Pacific Co. v. Railroad Comm., 194 Cal. 734, 739, 231 P. 28; Ortega Co. v. Triay, 260 U.S. 103, 110, 43 S.Ct. 44, 67 L.Ed. 153, 157; Home Telephone & Telegraph Co. v. City of Los Angeles, 211 U.S. 265, 271, 29 S.Ct. 50, 53 L.Ed. 176, 181-182; 13 C.J.S. Carriers § 275b, pp 623-624. ¹ There is no constitutional requirement of a hearing in such proceedings. Franchise Tax Board v. Superior Court, 36 Cal.2d 538, 549, 225 P.2d 905, 911. 'Where the proceedings are quasi-legislative in character, a hearing of a judicial type is not required; a hearing allowed by legislative grace is not circumscribed by the restrictions applicable to judicial or quasi-judicial adversary proceedings.' Franchise Tax Board v. Superior Court, Supra, 36 Cal.2d at page 549, 225 P.2d at page 911.

Mere ascertainment of facts as a basis for legislation does not render the process judicial or anything less than quasi legislative.

In Collins v. City and County of San Francisco, 112 Cal.App.2d 719, 731, 247 P.2d 362, 370, the key question was whether the board of supervisors acted administratively or legislatively in passing a salary standardization ordinance; this was held to be legislative and the court said, concerning the ascertainment of facts which must underlie any legislative or quasi legislative action: 'Under section 151 the board exercises some legislative discretion as to the standardization process. Since the board has the power to reject the schedules submitted by the commission and to amend them, although it must then await additional data from the commission, it is obvious that the board exercises considerable discretion in the process. The factual determination of such difficult questions as 'prevailing rates' and 'comparable service and working conditions,' and 'comparable training and experience,' and what constitutes 'consistent' compensation, clearly involves a discretionary fact finding process, and is therefore legislative in character. City and County of San Francisco v. Boyd, 22 Cal.2d 685, 140 P.2d 666.' In the cited case of Boyd the question was whether the fixing of wages 'in accord with the generally prevailing rates of wages for like service and working conditions in private employment' was the exercise of a legislative function. 22 Cal.2d at page 689, 140 P.2d at page 673. It was held that '[t]he determination whether proposed rates of compensation are in accord or in harmony with generally prevailing rates is within the discretion of the rate-making authority. The courts will not interfere with that determination unless the action is fraudulent or so palpably unreasonable and arbitrary as to indicate an abuse of discretion as a matter of law.' 22 Cal.2d at page 690, 140 P.2d at page 668.

This language and similar expressions found in numerous other cases upholding interference with legislative action is directed toward the right to undo what the legislative or quasi legislative body has done, not toward directing it to perform an act which is prospective in operation. This observation applies to Maxwell v. City of Santa Rosa, 53 Cal.2d 274, 1 Cal.Rptr. 334; Lawrence v. City of Santa Rosa, 53 Cal.2d 282, 1 Cal.Rptr. 339; Johnston v. City of Claremont, 49 Cal.2d 826, 838, 323 P.2d 71; Berkeley High School Dist. v. Coit, 7 Cal.2d 132, 137-138, 59 P.2d 992; Johnston v. Rapp, 103 Cal.App.2d 202, 206, 229 P.2d 414; Peart v. Board...