City of Colton v. City of Rialto

• Decision Date: 16 October 1964
• Citation: 40 Cal.Rptr. 766,230 Cal.App.2d 174
• Court: California Court of Appeals Court of Appeals
• Parties: CITY OF COLTON, Petitioner and Respondent, v. CITY OF RIALTO etc., City Council of the City of Rialto, and Merritt Cornell, City Clerk of the City of Rialto, Respondents and Appellants. Civ. 7176.

Page 766

40 Cal.Rptr. 766

230 Cal.App.2d 174

CITY OF COLTON, Petitioner and Respondent, v. CITY OF RIALTO etc., City Council of the City of Rialto, and Merritt Cornell, City Clerk of the City of Rialto, Respondents and Appellants.

Civ. 7176.

District Court of Appeal, Fourth District, California.

Oct. 16, 1964.

Hearing Denied Dec. 9, 1964.

McCabe & Saevig, Roger A. Saevig, Beverly Hills, and Ward O. Mathews, Rialto, for respondents and appellants.

Hutton & Edwards, Lonergan & Jordan, San Bernardino, O'Melveny & Myers, Pierce Works, William D. Moore and Marshall A. Rutter, Los Angeles, for petitioner and respondent.

RALPH M. BROWN, Justice. ^*

This is an appeal by appellants from a judgment granting a petition for writ of mandate, declaring certain annexations of appellants to be void, declaring an ordinance respecting one of said annexations to be void, and commanding appellants to take all necessary steps to vacate, set aside and expunge the record of filing of the certified copy of the ordinance here declared void.

The action was commenced by the City of Colton on July 7, 1961, by the filing of its pleading entitled 'Petition for Alternative Writ of Mandate or Review and Order to Show Cause.' The City of Rialto was the only respondent named therein, and it subsequently moved to quash service, which motion was denied, and also demurred on the ground that the petition did not state facts sufficient to constitute a cause of action, and that there was a defect or non-joinder of parties respondent in the failure to name the City Council and the City Clerk.

On October 6, 1961, the City of Colton filed a complaint in quo warranto to test the validity of Rialto Annexation No. 52. On February 14, 1962, the City of Colton filed its amended petition setting forth the name of the City Clerk of the City of Rialto, Merritt Cornell, and the City Council of the City of Rialto.

Prior to this time, on July 5, 1960, the City of Rialto, by Resolution No. 824, initiated Rialto Annexation No. 49 to annex certain uninhabited territory. Prior to August 15, 1960, the date set for hearing protests to this annexation, the owners of more than one-half of the value of the territory to be annexed had filed written protests and proceedings under Rialto Annexation No. 49 were terminated. On October 26, 1960, the City Council passed the first reading of Ordinance No. 446 disapproving No. 49. Then on December 6, 1960, the City Council of the City of Colton initiated West Colton Annexation No. 15 seeking to annex substantially the same territory as Rialto Annexation No. 49. On February 9, 1961, Rialto petitioned the trial court for a writ commanding the City of Colton to terminate No. 15 for the reason that it was prematurely instituted as the necessary ordinance No. 446 finally disapproving No. 49 had not first been passed by the City of Rialto; judgment thereupon was entered on March 6, 1961, directing Colton to terminate No. 15 and requiring Rialto to complete adoption of Ordinance No. 446, both of which were complied with.

On April 5, 1961, Rialto adopted three resolutions to initiate, respectively, Rialto Annexations Nos. 51, 52 and 53, reciting that they were adopted pursuant to petitions by property owners, but, in fact, no such petitions had been filed. The territories covered in these annexations were included within the previous Rialto Annexation No. 49 and proceedings to annex these territories were commenced within one year following August 15, 1960, which was the date protects were heard against Rialto Annexation No. 49.

On May 15, 1961, the date set for the protests to be heard in Rialto Annexations Nos. 51, 52 and 53, the City of Rialto determined that majority protests had been filed with respect to Nos. 51 and 53, and terminated proceedings on said annexations.

Rialto Annexation No. 52 remained, and the applicable assessment roll showed the total assessed value of the territories included therein to be $19,292. Written protests by private owners owning property within that territory having an assessed value totaling $10,742 were filed prior to the date for hearing the protests, May 15, 1961. Despite such protests, Rialto continued the hearing to June 5, 1961. During this continuance period, an additional protest by an owner of property in Rialto Annexation No. 49 valued at $2,660 was filed. At the June 5, 1961, meeting, Rialto approved its Annexation No. 52 by introducing Ordinance No. 457, and on June 10, 1961, within five days after its introduction, said City Council adopted that ordinance.

On May 2, 1961, the City Council of the City of Colton adopted a resolution declaring that proceedings had been initiated on West Colton Annexation No. 16, which included substantial portions of the Rialto No. 49 territories and overlapped and conflicted with Rialto No. 52. In a report of the San Bernardino County Boundary Commission the boundaries of West Colton Annexation No. 16 were approved. On June 20, 1961, a protest hearing on West Colton No. 16 was held at which the City Council found that the protests were insufficient; it then introduced Ordinance No. 1092 approving No. 16, which ordinance was passed and adopted on June 27, 1961.

Colton's petition contends that the Rialto Annexations Nos. 51, 52 and 53 are invalid because said annexations include territory within No. 49 and proceedings were commenced within one year of termination of No. 49; that Nos. 51, 52 and 53 are invalid because said annexations were purportedly initiated pursuant to property owner petitions but such petitions were never filed, and also because said annexations were initiated prior to submission to the county boundary commission; that Ordinance No. 457 approving No. 52 was void because it was adopted within five days from its introduction; and that No. 52 was terminated by majority protest. It is also contended that West Colton Annexation No. 16 is lawful and valid in all respects.

Rialto filed a motion to dismiss, an answer, and a demurrer. The motion to dismiss incorporated a copy of a certificate of the Secretary of State certifying that a certified copy of Rialto Ordinance No. 457 was filed July 12, 1961, and the motion alleged: that neither mandamus nor certiorari will lie to review a completed annexation proceeding; that the Council and the Clerk were not made parties to the action until the filing of the amended petition on February 12, 1962; and further, that the proper method to test the validity of a completed annexation is quo warranto and such an action was pending. The answer alleged that between May 15, 1961, and June 5, 1961, a written protest previously filed was withdrawn, thereby reducing the protests to Rialto Annexation No. 52 to $9,552, or less than half of the total assessed value of $19,212; and that the additional protest to Rialto Annexation No. 52 representing $2,660 valuation was not properly filed and did not contain a proper description of the property. The answer denies that a majority protest was filed in connection with Rialto Annexation No. 52, and alleges that a certified copy of Ordinance No. 457 was filed in the office of the Secretary of State on July 12, 1961, thus completing No. 52.

The evidence in the proceedings was introduced by stipulation of the parties. The trial court summarized the evidence in its opinion as follows:

'On April 5, 1961, Rialto, by three separate resolutions, commenced three separate annexations designated respectively as Annexations Nos. 51, 52 and 53. The lands included within these annexations had been substantially within the territory previously attempted to be annexed by Rialto as 'Annexation No. 49.' This latter proceeding had been terminated by a majority protest on August 15, 1960, and Rialto had thereupon introduced and given first reading to its Ordinance No. 446 for the purpose of disapproving such annexation. No further action was taken by the City Council to effect and complete the adoption of Ordinance No. 446 until the judgment of this court on March 6, 1961, in action No. 104633, which commanded and required that the City Council of Rialto proceed to complete the adoption of such ordinance by giving second reading thereto. This was done on the date of judgment, i. e., March 6, 1961, and the ordinance, by its terms, became effective thirty days thereafter.

'In December, 1960 the City of Colton initiated proceedings to annex properties, a substantial portion of which had been included within Rialto Annexation No. 49. This annexation by Colton was designated as 'West Colton Annexation No. 15.' At this time Rialto had not given second reading to Ordinance No. 446. Action 104633 was then filed in this court, and, as hereinbefore stated, Rialto was required to complete the adoption of that ordinance. By the same judgment, the court ordered the issuance of peremptory writ of mandate requiring Colton to terminate and cease all proceedings under 'West Colton Annexation No. 15,' and declared such proceedings were 'invalid, null, void and of no legal effect.' It was, apparently, the theory of the court in action No. 104633 that the initiation of West Colton Annexation No. 15 was premature, since Rialto had not then completed the adoption of Ordinance No. 446 disapproving its Annexation No. 49. Colton complied with this judgment.

'On April 10, 1961, and after the effective date (by its terms) of Rialto Ordinance No. 446, the City Council of Colton adopted Resolution No. 2150, and, on May 2, 1961, Resolution No. 2159, initiating annexation proceedings designated 'West Colton Annexation No. 16' upon substantially the same property previously included in its attempted Annexation No. 15.

'Upon protest hearings of Rialto Annexations Nos. 51, 52 and 53, on May 15, 1961, it was determined by the Rialto City Council that a majority protest had been filed against Annexations Nos. 51 and 53, and the Council determined that 'no action' was to be taken with reference to...