County of Fresno v. Malmstrom

• Citation: 94 Cal.App.3d 974,156 Cal.Rptr. 777
• Parties: COUNTY OF FRESNO, Petitioner, v. James B. MALMSTROM, as County Tax Collector, etc., Respondent. Civ. 4719.
• Decision Date: 12 July 1979
• Court: California Court of Appeals

Page 777

156 Cal.Rptr. 777

94 Cal.App.3d 974

COUNTY OF FRESNO, Petitioner, v. James B. MALMSTROM, as County Tax Collector, etc., Respondent.

Civ. 4719.

Court of Appeal, Fifth District, California.

July 12, 1979.

As Modified Aug. 10, 1979.

Hearing Denied Sept. 12, 1979.

Floyd B. Viau, County Counsel, Fresno, Harold E. Rogers, Jr. & Associates and Harold E. Rogers, Jr., Special Counsel, San Francisco, for petitioner

Burt Pines, City Atty., Claude E. Hilker and Norman L. Roberts, Asst. City Attys., Los Angeles, as amicus curiae on behalf of petitioner.

Carlo S. Fowler, John R. Myers, Orrick, Herrington, Rowley & Sutcliffe, San Francisco, for respondent.

OPINION

ZENOVICH, Associate Justice.

Petitioner County of Fresno requests this court to invoke its original jurisdiction to issue a writ of mandate to compel respondent James B. Malmstrom, the Fresno County Treasurer and Tax Collector, to serve notice of assessment and collect such assessments from property owners in a special assessment district pursuant to Streets and Highways Code sections 10404 and 10603.

The City of Los Angeles joined in support of petitioner as amicus curiae.

The facts underlying this petition are not in dispute.

On December 19, 1978, petitioner (acting through the Fresno County Board of Supervisors) initiated assessment proceedings under Streets and Highways Code section 10000 et seq. (the Municipal Improvement Act of 1913) to construct certain improvements described as "Various Streets in Robinwood Subdivision, Fresno County Improvement District No. 205." Petitioner intended to issue assessment bonds pursuant to Streets and Highways Code sections 5000 et seq. (the Improvement Act of 1911) to represent the assessments levied. The petition alleges that all the requirements of the Streets and Highways Code were followed in the assessment procedure; respondent does not make an assertion to the contrary.

However, respondent refused to serve the notice of assessment on the property owners involved or to collect the assessment, contending that the assessment in question would result in a levy of over 1 percent on the property in the district, in contravention of article XIII A, section 1, subdivision (a) of the California Constitution and that it constitutes a "special tax" that has not been approved by a two-thirds vote of qualified electors of the district, as required by article XIII A, section 4.

Since the issues herein presented are of great public importance and should be resolved promptly, petitioner accordingly has properly invoked the exercise of our original jurisdiction. (California Housing Finance Agency v. Elliott (1976) 17 Cal.3d 575, 580, 131 Cal.Rptr. 361, 551 P.2d 1193; California Educational Facilities Authority v. Priest (1974) 12 Cal.3d 593, 598, 116 Cal.Rptr. 361, 526 P.2d 513; Cal.Civil Writs (Cont.Ed.Bar 1970) § 8.5, p. 154.)

Article XIII A of the California Constitution was adopted by the voters of this state in June 1978. The measure was designated on the ballot as Proposition 13 and commonly known as the Jarvis-Gann initiative. Our California Supreme Court, itself exercising its original jurisdiction to uphold the validity of article XIII A as a whole, stated that the article "in a number of particulars is imprecise and ambiguous" and described it as "a constitutional provision of a kind, similar to many others, which necessarily and over a period of time will require judicial, legislative and administrative construction." (Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 244-245, 149 Cal.Rptr. 239, 257, 583 P.2d 1281, 1299.)

The issues raised by petitioner involved the continued viability of the Improvement Act of 1911 (Sts. & Hy.Code, §§ 5000 et seq.) and the municipal Improvement Act of 1913 (Sts. & Hy.Code, §§ 10000 et seq.). For over 60 years these laws have provided the most widely used procedure in California for the construction of a variety of public improvements including streets, sewers, sidewalks, water systems, lighting and public utility lines; property owners benefited by the improvements pay for these improvements either in cash or, at their option, by installments over a period of time. (See Nichols, Comment: How Not to Contest Special Assessments in California (1965) 17 Stan.L.Rev. 247, 247-248.) Amicus Curiae City of Los Angeles states that within its jurisdiction alone almost $15.5 million in streets, sewers, drains and incidental facilities were constructed in the three and one-half years ending December 31, 1978; almost half of the funding for these projects was paid by assessment procedures under these acts, with much of the remainder paid by federal grants as "matching funds." Los Angeles also states it has similar projects pending with estimated construction costs of over $52 million.

Therefore, in light of the uncertainty article XIII A has cast over the continued viability of procedures so widely used for such a long period of time to construct needed public improvements, we examine petitioner's specific contentions.

I.

Article XIII A, section 1, subdivision (a), does not expressly limit special assessments, but is rather confined to "any ad valorem tax on real property." However, subdivision (b) exempts from subdivision (a) "ad valorem taxes or Special assessments " (emphasis added) approved by the voters prior to the time article XIII A became effective.

Rules of construction and interpretation that are applicable when considering statutes are equally applicable in interpreting constitutional provisions. (Winchester v. Mabury (1898) 122 Cal. 522, 527, 55 P. 393; 45 Cal.Jur.2d (1958) Statutes, § 97, p. 612.) What is excepted by a statute's proviso should, in the absence thereof, be considered as included in the general terms of the statute. (People ex rel. Happell v. Sischo (1943) 23 Cal.2d 478, 493, 144 P.2d 785; 73 Am.Jur.2d (1974) Statutes, § 316, p. 466.) Moreover, terms used in a constitutional amendment are normally construed in light of existing statutory definitions. (County of Sacramento v. Hickman (1967) 66 Cal.2d 841, 850, 59 Cal.Rptr. 609, 428 P.2d 593; Forster Shipbldg. Co. v. County of L. A. (1960) 54 Cal.2d 450, 455-456, 6 Cal.Rptr. 24, 353 P.2d 736.)

And, as the California Supreme Court summarized other rules of interpretation in Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization, supra, 22 Cal.3d at pages 245-246, 149 Cal.Rptr. at pages 257-58, 583 P.2d at pages 1300:

"Acknowledging as we must that article XIII A in a number of particulars is imprecise and ambiguous, nonetheless we do not conclude that it is so vague as to be unenforceable. Rather, in the usual manner, the various uncertainties and ambiguities may be clarified or resolved in accordance with several other generally accepted rules of construction used in interpreting similar enactments. Thus, California courts have held that constitutional and other enactments ' " 'must receive a liberal, practical common-sense construction' " ' which will meet ' "changed conditions and the growing needs of the people. " ' (Citations.) A constitutional amendment should be construed in accordance with the natural and ordinary meaning of its words. (Citation.) The literal language of enactments may be disregarded to avoid absurd results and to fulfill the apparent intent of the framers. (Citations.)

"Most importantly, apparent ambiguities frequently may be resolved by the contemporaneous construction of the Legislature or of the administrative agencies charged with implementing the new enactment. (Citations.) In addition, when, as here, the enactment follows voter approval, the ballot summary and arguments and analysis presented to the electorate in connection with a particular measure may be helpful in determining the probable meaning of uncertain language. (Citations.)"

Respondent contends that section 1, subdivision (b), when read in conjunction with section 1, subdivision (a), requires an inference that all special assessments come within subdivision (a)'s limitations. Petitioner agrees that rules of construction require special assessments to be impliedly included in subdivision (a), but only those special assessments levied on an ad valorem basis. ¹ Petitioner's position is based on a contention that the word "ad valorem" in section 1, subdivision (b), modifies both "taxes or Special assessments."

First, we are of the opinion that a major thrust of article XIII A is aimed at controlling ad valorem property taxes. This concern was stimulated by a rapid increase in property values in California over recent years. Even assuming property tax rates had remained constant, this rapid increase in market value, when reflected in increased assessed value, resulted in large property tax increases which, for the most part, had not been offset by increased income of the property owners. ² Thus, section 1 limits the ad valorem tax rate to a maximum of 1 percent of market value; section 2 sets the 1975-76 tax year as a "base" for assessed value and limits further increases to 2 percent per year; section 3 provides that the Legislature may not impose new ad valorem taxes on real property; and section 4 provides that cities, counties and special districts may not impose new ad valorem property taxes.

Second, we are of the opinion that respondent's construction would result in an illogical conclusion. Such a construction is contrary to the rules of interpretation. (See, e. g., Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization, supra, 22 Cal.3d at p. 245, 149 Cal.Rptr. 239, 583 P.2d 1281; Fireman's Fund Ins. Co. v. Security Pacific Nat. Bank (1978) 85 Cal.App.3d 797, 815, 149 Cal.Rptr. 883.) Respondent's construction would place local governmental entities in a rather precarious situation by forcing them into a Hobson's choice of spending general tax funds either for expenditures to benefit the public at large or for projects...