Dare v. Lakeport City Council

• Decision Date: 09 November 1970
• Citation: 12 Cal.App.3d 864,91 Cal.Rptr. 124
• Court: California Court of Appeals Court of Appeals
• Parties: Dick DARE, Walter Weimer, Dave Boynton and Warren Marston, Plaintiffs and Appellants, v. LAKEPORT CITY COUNCIL, acting as Governing Body of Lakeport Municipal Sewer District #1, Michael Zapponi, Lyle Timm, Charles Keene, Randall Rashe and Allen Griggs, Councilmen, and Lenora Busch, City Clerk, defendants and Respondents. Civ. 27449.

Page 124

91 Cal.Rptr. 124

12 Cal.App.3d 864

Dick DARE, Walter Weimer, Dave Boynton and Warren Marston, Plaintiffs and Appellants, v. LAKEPORT CITY COUNCIL, acting as Governing Body of Lakeport Municipal Sewer District #1, Michael Zapponi, Lyle Timm, Charles Keene, Randall Rashe and Allen Griggs, Councilmen, and Lenora Busch, City Clerk, defendants and Respondents.

Civ. 27449.

Court of Appeal, First District, Division 1, California.

Nov. 9, 1970.

Crump, Bruchler & Crump, Lakeport, for plaintiffs and appellants.

W. J. Harpham, Lakeport, for defendants and respondents.

ELKINGTON, Associate Justice.

Appellants were proponents of an initiative petition filed with the Lakeport City Council which was the governing body of Lakeport Municipal Sewer District No. 1. The petition concededly met the requirements of Elections Code sections 4000--4023 and 5150--5162. Upon advice of its counsel that the petition's object was not a proper subject of the initiative process the City Council 'refused' the petition. Its proponents then sought by superior court mandate proceedings to compel the City Council to accept, and thereafter take proper action on, the petition. Following a trial, the superior court found against the proponents and entered judgment denying mandate. It is from that judgment that the instant appeal is taken.

Lakeport is what is commonly known as a general law city; it does not function under a municipal charter. Lakeport Municipal Sewer District No. 1 is a regularly organized municipal sewer district, governed, as stated, by the Lakeport City Council. The sewer district contains within its boundaries all of Lakeport and some outside territory.

The City Council had enacted Ordinance No. 427, 'Providing for and establishing the method of prescribing rules, regulations, rates, payment and collection of the various service charges for the operation of the sewerage system thereof, and fixing the penalty for the violation thereof.' As relevant the ordinance provided:

'Section V. Maintenance Fees: The City Council shall prescribe by Resolution, the charges, times and manner of collection, of all sewer maintenance fees.

'The City Council may by Resolution, classify, or define various kinds of domestic sewage in accordance with their relative effects upon the operation of the sewerage system, and may provide for varying maintenance charges, in accordance with the relative difficulty or cost to the District of acceptance and treatment thereof.

'Section VI. Uniformity of Rules. All rules, fees, charges, or regulations provided for by this Ordinance shall be uniform throughout the District * * *.'

The initiative petition would have amended Ordinance 427 by adding the following paragraphs:

'(A) The maintenance fee to be collected from each domestic user shall be based upon the minimum water usage for which the City bills each domestic consumer, that is, it may be more or less than 100% Of the minimum water billing per residence, or per residence structure as the case may be, and in any event it shall be a flat monthly charge for all private residences.

'(B) The maintenance fee to be collected from each commercial user shall be based upon the water consumption of such commercial user, as shown by the water meter of such consumer; and may be equal to a percentage, whether more or less than 100% Of the water billing for such user for the same period.

'(C) In each case where no metered water is supplied to a commercial user, at the option of the user, his water supply may be metered at his cost, or the District may provide for determining the fee based on the nearest like metered user.

'(D) In all cases in which a commercial user's water consumption, or a substantial portion thereof, does not produce sewage, he shall be entitled to a hearing thereon, and credit for the portion of the water consumption not resulting in sewage. The procedures, rules and regulations for such hearings and determinations shall be prescribed by resolution.'

The principal issues presented to this court seem to resolve themselves to the question whether Ordinance 427, sections V and VI, and the proposed initiative amendment are, or would be, an ordinance 'providing for tax levies.'

California's Constitution, article IV, section 23 (the substance of which was formerly found in article IV, section 1, repealed 1966), provides that the Referendum power does not lie to 'statutes providing for tax levies or appropriations for usual current expenses of the State.' Article IV, section 25 (also formerly part of article IV, section 1), provides: 'Initiative and referendum powers may be exercised by the electors of each city or county under procedures that the Legislature shall provide. * * *' The Legislature has so provided. Election Code sections 4000--4023 and 4050--4057 respectively establish such procedures for municipal initiative and referendum elections. (See also Election Code sections 3700--3721, 3750--3754, 5150--5162, and 5200--5203 relating to counties and districts.)

However, Geiger v, Board of Supervisors, 48 Cal.2d 832, 836, 313 P.2d 545, and Hunt v. Mayor & Council of Riverside, 31 Cal.2d 619, 623--630, 191 P.2d 426, have held respectively that county and municipal referendum powers cannot affect ordinances providing for 'tax levies.'

Although the foregoing authorities deal generally with Referendum powers it is also the law that the Initiative process does not lie with respect to statutes and ordinances 'providing for tax levies.'

In Myers v. City Council of Pismo Beach, 241 Cal.App.2d 237, 50 Cal.Rptr. 402, 403, while a city council was considering 'An Ordinance Imposing a Tax Upon the Privilege of Transient (room) Occupancy' an initiative petition was filed proposing an ordinance 'Prohibiting The City Council From Levying A Room Occupancy Tax.' The city council refused to consider the petition and mandate proceedings followed. The District Court of Appeal reversed a superior court decision giving effect to the petition. It stated (pp. 243--244, 50 Cal.Rptr. at p. 406):

'(1) A proposed initiative ordinance cannot be used as an indirect or backhanded technique to invoke the referendum process against a tax ordinance of a general law city, such as Pismo Beach. It will be recalled that the last paragraph of the proposed initiative ordinance provides: 'Any ordinance conflicting with any of the provisions of this ordinance either in whole or in part is herewith repealed.' Thus if the vote at the special election on the proposed initiative ordinance were effective to make it a valid ordinance, the result would be to repeal Ordinance No. 114 passed by the...