City of Los Angeles v. Gurdane

• Decision Date: 23 May 1932
• Docket Number: No. 6684.,6684.
• Citation: 59 F.2d 161
• Parties: CITY OF LOS ANGELES v. GURDANE et al.
• Court: U.S. Court of Appeals — Ninth Circuit

59 F.2d 161 (1932)

CITY OF LOS ANGELES v. GURDANE et al.

No. 6684.

Circuit Court of Appeals, Ninth Circuit.

May 23, 1932.

Erwin P. Werner, City Atty., Frederick Von Schrader, Asst. City Atty., and Joseph T. Watson, Deputy City Atty., all of Los Angeles, Cal., for appellant.

Hewitt, McCormick & Crump, of Los Angeles, Cal. (Leslie R. Hewitt and Roy W. Colegate, both of Los Angeles, Cal., of counsel), for appellees.

Before WILBUR and SAWTELLE, Circuit Judges.

SAWTELLE, Circuit Judge.

This was an action brought by the appellees to enforce collection of a reward of $10,000 offered by the city of Los Angeles for the arrest and conviction of the person or persons directly implicated in either the kidnapping or the murder of Marion Parker, a 12-year old school girl of Los Angeles. On December 22, 1927, the appellees apprehended William Edward Hickman near Echo, Or. Hickman later was surrendered to the state agent of California, was tried, convicted, sentenced to death, and executed.

Though a number of questions, many of them of a somewhat technical nature dealing with pleading, have been raised by the appellant, in our view of the case it is necessary only to consider the fundamental problem of municipal authority; namely, Was the City of Los Angeles, under its charter and under the Constitution of California, empowered to offer the reward embodied in Ordinance No. 59803 and relied upon by the appellees herein?

The argument of the appellees in this regard is twofold: First, that, by reference, the power to offer a reward has been specifically given to the City of Los Angeles by its charter of 1925; and, second, that, even if such express power had not been given, the city, under its "general, broad municipal powers," was authorized to offer a reward for the apprehension and conviction of a felon. We will consider the two contentions seriatim.

1. Article 3, section 32, of the charter of 1889 (see St. 1889, p. 464) as amended in 1911 (see St. 1911, p. 2069) provides in part: "It the Council may, by ordinance, authorize the offering of rewards for the apprehension and conviction of any person who may have committed a felony in the city, and for the recovery of lost property of the city, and provide for the payment of such rewards."

The present charter of the city of Los Angeles, adopted on January 22, 1925, contains no such provision. The appellees concede this, but insist that "the power to offer and pay a reward flows, not from the old Charter, but from the charter of 1925, where it was incorporated, not by specifically setting it forth, but by reference, and just as effectually, by including in the new Charter all of its powers under the old."

In view of this contention, it becomes necessary to examine, in the new charter, these "references" to prior provisions of law.

At the outset, it may be conceded that the references are broad and sweeping in terms. While they are too numerous to be set out here in full, we will quote those most strongly in support of the appellees' contention:

"Sec. 2. The City of Los Angeles see St. Cal. 1925, p. 1028, in addition to any other rights and powers now held by it," etc.

"(5) To exercise any or all rights, powers, privileges and procedures now or hereafter established or authorized for municipalities, or for the City of Los Angeles, by any law of the State of California, by this charter, or by other lawful authority."

"Sec. 437. All acts of the Legislature relating to the City of Los Angeles, and all city ordinances, resolutions and other regulations, or portions thereof, in force at the date this charter takes effect and not inconsistent with this charter, shall be and remain in force after this charter takes effect until changed or repealed by the proper authority and in accordance with the provisions of this charter; and no rights vested under any former act, ordinance or regulation, when this charter takes effect, shall thereby be lost, impaired or discharged; and all actions and proceedings commenced in any court wherein the City of Los Angeles is a party, shall be continued without loss of rights or duties on the part of the city or other parties involved. * * *"

While, as we have said, this language is indeed sweeping, we believe that the powers referred to are the ordinary and not the extraordinary powers of the municipal corporation. By "extraordinary" we mean those which do not normally inhere in a municipality under the general law, but which, in order to be authorized at all, must be specifically and unequivocally granted to the city by its charter. To this latter class, as we shall see, belongs the power to offer a reward for the arrest and conviction of a felon.

As we read these and similar provisions in the 1925 charter, they reflect the city's concern for its vested property rights and for its litigious rights or choses in action. We do not believe that the freeholders, the electors, or the Legislature intended, by such broad and general terminology, to include the provision as to rewards, which they had seen fit to omit from the new charter. It is fair to assume that a power of this nature, not generally regarded as a municipal function, would have been included in the new charter, not by a general and doubtful reference, but by the simple and obvious expedient of specific re-enactment.

Without, however, relying solely upon this assumption, we are still led to the conclusion that the city of Los Angeles has not, under its present charter, the power to offer such a reward.

Section 8 of article 11 of the Constitution of California reads in part as follows: "The legislature shall by concurrent resolution approve or reject such charter as a whole, without power of alteration or amendment; and if approved by a majority of the members elected to each house it shall become the organic law of such city or city and county, and supersede any existing charter and all laws inconsistent therewith."

The foregoing is the language of the section as amended in 1922; but a careful comparison of earlier texts, from the date of the adoption of the Constitution, in 1879, discloses that substantially the same phraseology was used in the original section and in the various amendments thereto.

It seems clear, therefore, that, for the past half century at least the people of California have, through constitutional mandate, deliberately expressed their desire that the powers of a city shall be outlined in one charter and one charter alone. The consistent recurrence of the foregoing language in the various amendments to the section preclude the hypothesis of inadvertence or infelicity of phrase. To us, the conclusion is inescapable that the Constitution means what it says; namely, that a new charter shall supersede, or completely replace, the old.

There are no qualifications or reservations to this mandate; and we must needs enforce it according to its plain terms. Furthermore, the constitutional provision is grounded upon sound reason; for it is highly desirable that those who deal with a municipal corporation shall have but one instrument to which to look for the measure of the city's powers. Were it otherwise, it would be necessary not only to scrutinize the existing charter but all previous charters, in the effort to ascertain whether a power sought to be exercised by the municipality had been given to it in ancient days, by some forgotten section that had been neither re-enacted nor repealed. We think it neither wise nor politic to hold the public to so high a standard of diligence; and we believe that the framers of California's Constitution intended to declare a more reasonable rule.

"But," argue the appellees, "it is true that the old charter was superseded by the Charter of 1925, but that it was superseded does not mean that it was obliterated."

Unfortunately for the appellees' argument, however, that is precisely what "superseded" does mean.

In the First and Third Editions of Words and Phrases we find the following definitions for "supersede": "Set aside;" "annul;" "displace;" "make void, inefficacious, or useless;" "repeal." Surely, according to these definitions — which we believe square with the canons of statutory interpretation — there is not much left of the "existing" charter when a new charter is duly adopted by the Legislature. In this view we are sustained by a long and unbroken line of decisions by the Supreme Court of California.

In the early case of People ex rel. Adams v. City of Oakland, 92 Cal. 611, 28 P. 807, 809, the following language was used regarding this same constitutional provision: "As a description of the territory whose inhabitants are incorporated as a municipal corporation is an essential part of the charter, an amendment of such description of the territory of the city of Oakland by the proceedings to annex additional territory was an amendment of its charter, which was wholly superseded by the new charter framed and adopted under and in accordance with section 8 of article 11 of the constitution."

Section 8 was again interpreted by the Supreme Court of the state in Ex parte Sparks, 120 Cal. 395, 52 P. 715, 716: "The old...