City of Bakerfield v. Miller

• Decision Date: 27 September 1965
• Citation: 46 Cal.Rptr. 661
• Court: California Court of Appeals Court of Appeals
• Parties: CITY OF BAKERSFIELD, a Municipal Corporation, Plaintiff and Respondent, v. Milton MILLER, Individually, and as Trustee of the Hotel Padre Trust, et al., Defendants and Appellants. Milton MILLER, Individually, and as Trustee of the Hotel Padre Trust, et al., Cross-complainants and Appellants, v. CITY OF BAKERSFIELD, a Municipal Corporation, Cross-defendant and Respondent. Civ. 472.

Page 661

46 Cal.Rptr. 661

CITY OF BAKERSFIELD, a Municipal Corporation, Plaintiff and Respondent, v. Milton MILLER, Individually, and as Trustee of the Hotel Padre Trust, et al., Defendants and Appellants.

Milton MILLER, Individually, and as Trustee of the Hotel Padre Trust, et al., Cross-complainants and Appellants, v. CITY OF BAKERSFIELD, a Municipal Corporation, Cross-defendant and Respondent.

Civ. 472.

District Court of Appeal, Fifth District, California.

Sept. 27, 1965.

For Opinion on Hearing, see 48 Cal.Rptr. 889, 410 P.2d 393.

Milton Miller, in pro. per.

No appearance for appellant Bakersfield Hotel Co.

Kenneth W. Hoagland, City Atty., Bakersfield, for respondent.

CONLEY, Presiding Justice.

The principal questions to be determined on this appeal are:

1) Whether a municipal corporation, which does not allege in its complaint the existence of a nuisance but relies wholly upon the breach of the criminal provisions of a municipal building ordinance, is entitled to secure injunctive relief to enforce the ordinance?

2) Whether in the circumstances of this case there was a failure on the part of the city to observe due process of law by omitting to hold any formal hearing before posting at appellant's hotel doors signs reading 'Do not enter-Unsafe for Occupancy?'

3) Whether the form of the decree in the case, aside from all other considerations, is so vague and uncertain as to require reversal?

The Hotel Padre located on the main street of the City of Bakersfield is a reminforced concrete and steel building, 8 stories high, built in 1929; admittedly it is a socalled 'fireproof building,' which was constructed before the adoption of the present city ordinance.

The appellant first purchased a minor interest in the hotel building in the year 1945. But in 1954 and 1955, he acquired the balance of the hotel stock for himself and the beneficiaries of a trust. As a factor inducing the major investment, he was influenced by a letter signed by Mr. J. A. Olsson, Chief Building Inspector of Bakersfield, addressed to Robert N. Eddy, the architect employed by the former owner of a majority interest, dated July 31, 1953, which read:

'Dear Mr. Eddy:

'This is to inform you that the structural rehabilitation work, of the subject building, has been accepted by the City Building Department as substantially complete in accordance with the plans and specifications, approved by this office on May 11, 1953. This building is considered safe for occupancy.

'Very truly yours,

J. A. Olsson

Chief Building Inspector.'

(Italics added.)

On the 11th day of May, 1959, the City Council of Bakersfield enacted ordinance No. 1242, New Series, by which they adopted by reference the Uniform Building Code, 1958 edition, prepared by the International Conference of Building Officials at their 35th annual meeting on September 10-13 1957; volumes 1 and 3, and the appendix thereto were included; the ordinance specified that the words 'Building Official' as used in the code would mean 'the duly appointed and acting Chief Building Inspector of the City of Bakersfield, his duly authorized representatives, or such person as may hereafter be authorized by law to perform the duties now being performed by that official in the City of Bakersfield'; section twelve of the ordiance made it unlawful 'for any person, firm, or corporation to erect, construct, enlarge, alter, repair, move, improve, remove, convert or demolish, equip, use, occupy or maintain any building or structure in the city, or cause the same to be done, contrary to or in violation of any of the provisions of said Uniform Building Code'; the ordinance further provided that anyone violating any of the provisions of the code should be deemed '* * * guilty of a misdemeanor, and * * * of a separate offense for each and every day or portion thereof during which any violation * * * is committed, continued, or permitted, * * *' and prescribed a penalty upon conviction of $500 for each offense, 'or by imprisonment in the County Jail for a period of not more than six (6) months, or by both such find and imprisonment.'

Volume 1 of the Uniform Building Code, 1958 edition, is a printed book containing 364 pages, besides an extensive index; its preface states that the code was compiled from time to time by the Pacific Coast Building Officials Conference, the first edition having been published at the sixth annual business meeting held in Phoenix Arizona, October 18-21, 1927; editions of the code, containing expansive changes, have been published in 1930, 1933, 1937, 1940, 1943, 1946, 1949, 1952, and 1955, besides the edition adopted in ordinance No. 1242, New Series. The oral argument developed that there is also a 1964 edition of the Uniform Building Code and probably others.

Confusion is perhaps increased, rather than diminished, by amended section 17922 of the Health and Safety Code (Stats. 1965, ch. 345, p. ___), which became law on September 17, 1965, and which provides with respect to rules and regulations '* * * adopted, amended, or repealed from time to time' pursuant to this chapter of the State Housing Act:

'The rules and regulations adopted, amended, or repealed from time to time pursuant to this chapter shall include provisions imposing requirements * * * reasonably consistent with recognized and accepted standards contained in the Uniform Housing Code, * * * 1964 edition, the Uniform Building Code, * * * 1964 edition, as adopted by the International Conference of Building Officials, the Uniform Plumbing Code, * * * 1964 edition, as adopted by the Western Plumbing Officials Association, the minimum painting standards for home construction loans adopted by the Federal Housing Administration and the Department of Veterans Affairs, and the National Electrical Code, 1962 edition, as adopted by the National Fire Protection Association. The department shall adopt such other rules and regulations as it deems necessary to carry out the provisions of this part. In promulgating rules and regulations the department shall consider any amendments to the uniform codes referred to in this section. In promulgating rules and regulations the department shall also consider, among other things, geographic, topographic and climatic conditions.

'Local use zone requirements, local fire zones, building setback, side and rear yard requirements, and property line requirements are hereby specifically and entirely reserved to the local jurisdictions notwithstanding any requirements found or set forth in this part.' (Italics show amendments; asterisks show deletions.)

At time of the trial, numerous cities in California had adopted some edition of the Uniform Building Code in much the same way that Bakersfield did. This is a helter-skelter way of passing an ordinance, and certainly it departs radically from the initial American method of enacting a municipal law. The complexity and the varied requirements of modern life doubtless require the adoption of some such method by part-time professional lawmakers, but the existence of this method of conducting municipal affairs, involving the imposition of heavy penalties and the destruction of business enterprises and costly buildings, stresses the necessity that courts give close attention to the thrust of such enactments vis-a-vis the constitutional rights of individuals. The adoption, by simple reference, of a complicated 'code' of several volumes regulating the details of an important branch of our daily affairs endangers the rights of property which constitute part of our basic law. (Agnew v. City of Culver City, 147 Cal.App.2d 144, 154-155, 304 P.2d 788.)

The Constitution of the United States (amends. V and XIV) and the Constitution of California, article I, sections 1 and 14, establish that the ownership of property and the peaceable conduct of business affairs are fundamental rights to be enjoyed by all citizens; the right to maintain a legitimate business is a property right, which cannot be taken away, except under general and well-understood principles such as the police power. In Miller v. Board of Public Works, 195 Cal. 477, 484, 234 P. 381, 383, 38 A.L.R. 1479, it is said:

'The police power of a state is an indispensable prerogative of sovereignty and one that is not to be lightly limited. Indeed, even though at times its operation may seem harsh, the imperative necessity for its existence precludes any limitation upon its exercise save that it be not unreasonably and arbitrarily invoked and applied. Hadacheck v. Sebastian, 239 U.S. 394, 36 Sup.Ct.Rep. 143, 60 L.Ed. 348, Ann.Cas. 1917B, 927; District of Columbia v. Brooke, 214 U.S. 138, 149, 29 Sup.Ct.Rep. 560, 53 L.Ed. 941 [see, also, Rose's U.S. Notes]. It is not, however, illimitable and the marking and measuring of the extent of its exercise and application is determined by a consideration of the question of whether or not any invocation of that power, in any given case, and as applied to existing conditions, is reasonably necessary to promote the public health, safety, morals ([Hannibal etc.] Railroad Co. v. Husen, 95 U.S. 465, 470, 471, 24 L.Ed. 527; [Boston] Beer Co. v. Massachusetts, 97 U.S. 25, 24 LEd. 989), or general welfare of the people of a community. (Chicago, B. & Q. Ry. Co. v. Ill., 200 U.S. 561, 592, 26 Sup.Ct.Rep. 341, 50 L.Ed. 596, 4 Ann.Cas. 1175 [see, also, Rose's U. S. Notes]).

'In short, the police power, as such, is not confined within the narrow circumspection of precedents, resting upon past conditions which do not cover and control present day conditions obviously calling for revised regulations to promote the health, safety, morals, or general welfare of the public; that is to say, as a commonwealth develops politically, economically, and socially, the police power likewise develops, within reason, to meet the changed and changing conditions. What was at one time regarded as an improper exercise of the police power may now, because of changed living conditions,...