Firestone Tire & Rubber Co. v. Board of Sup'rs of Los Angeles County

• Decision Date: 23 December 1958
• Citation: 333 P.2d 378,166 Cal.App.2d 519
• Court: California Court of Appeals Court of Appeals
• Parties: The FIRESTONE TIRE & RUBBER COMPANY, a corporation, Petitioner and Respondent, v. BOARD OF SUPERVISORS OF LOS ANGELES COUNTY, Burton Chace, Chairman, Warren Dorn, John Anson Ford, and Kenneth Hahn, Consolidated County Fire Protection District and Keith Klinger, Appellants. The FIRESTONE TIRE & RUBBER COMPANY, a corporation, Petitioner, v. BOARD OF SUPERVISORS OF LOS ANGELES COUNTY, Burton Chace, Chairman, Warren Dorn, John Anson Ford, and Kenneth Hahn, Consolidated County Fire Protection District and Keith Klinger, Respondents. Civ. 23433, 23365.

Page 378

333 P.2d 378

166 Cal.App.2d 519

The FIRESTONE TIRE & RUBBER COMPANY, a corporation, Petitioner and Respondent, v. BOARD OF SUPERVISORS OF LOS ANGELES COUNTY, Burton Chace, Chairman, Warren Dorn, John Anson Ford, and Kenneth Hahn, Consolidated County Fire Protection District and Keith Klinger, Appellants.

The FIRESTONE TIRE & RUBBER COMPANY, a corporation, Petitioner, v. BOARD OF SUPERVISORS OF LOS ANGELES COUNTY, Burton Chace, Chairman, Warren Dorn, John Anson Ford, and Kenneth Hahn, Consolidated County Fire Protection District and Keith Klinger, Respondents.

Civ. 23433, 23365.

District Court of Appeal, Second District, Division 3, California.

Dec. 23, 1958.

Rehearing Denied Jan. 19, 1959.

Hearing Denied Feb. 18, 1959.

Harold W. Kennedy, County Counsel, Los Angeles, and David D. Mix, Deputy County Counsel, Granada Hills, for Board of Supervisors.

Trippet, Yoakum, Stearns & Balantyne, Oscar A. Trippet and Thomas H. Carver, Los Angeles, for Firestone Tire & Rubber Co.

NOURSE, Justice pro tem.

The first matter named in the caption involves an appeal by Consolidated Fire Protection District, hereinafter called 'District,' the Board of Supervisors of the County of Los Angeles and one Keith Klinger who is the chief engineer of the District, from a judgment annulling a resolution of the Board of Supervisors annexing certain territory to the District in a proceeding known as Annexation 47-57.

The second matter named in the caption involves a petition by Firestone Tire & Rubber Company, a corporation, hereinafter called Firestone, for a writ of prohibition directed to the Board to enjoin it from taking further action under a proceeding known as Annexation Number 34-58, by which proceeding it is sought to annex to the District the same territory which was included in Annexation Number 47-57, which proceeding was annulled by the judgment appealed from.

We have permitted these two matters to be submitted for decision upon a combined record and briefs and we will dispose of both by this opinion treating them separately.

The District's Appeal

We have before us, in addition to the appeal, the motion of Firestone to dismiss the appeal. The motion is made upon two grounds. The first ground is that by the commencement of proceeding 34-58 the appellants have accepted the benefits of the judgment appealed from and thereby affirmed the validity of that judgment and waived their right to appeal therefrom. This contention is devoid of merit. Undoubtedly if appellants are correct in their contention that the judgment appealed from is erroneous and as a matter of law the original proceedings were valid, the Board did not have the power to act under the later proceedings for it could not order annexed territory which was already a part of the District. If, however, the Board's contentions on the appeal are not well founded and the judgment of the trial court is correct, then the original proceedings were no bar to the second. City of San Pablo v. City of Richmond, 148 Cal.App.2d 358, at pages 361-362, 306 P.2d 949, at pages 951-952.

The appellants by initiating the second proceedings did not concede the invalidity of the first proceeding and were entitled as a precautionary measure to commence a second proceeding which would be effective only in the event that the judgment of the lower court was affirmed. If appellants had proceeded to complete their annexation under the second proceeding then it might be doubtful that they would be in a position to attack the first judgment for it would only be upon the basis of the invalidity of the order annulled by the judgment that they could again act to annex the same territory.

The second ground of the motion is that by instituting the second proceeding, the appellants have violated an order made by the lower court staying proceedings and therefore are in contempt of that court and not entitled to seek aid from this court by their appeal. This contention is also without merit. The stay order made by the superior court in connection with a writ of review issued by it only stayed action by the respondents in that court (appellants here) upon the proceedings to be reviewed by that court. It did not purport to enjoin the Board of Supervisors or the District from instituting new and separate annexation proceedings. The motion to dismiss is denied.

Firestone has also moved for an affirmance of the judgment upon the grounds that a mere inspection of the record indicates the correctness of the trial court's judgment. This motion goes to the merits of the appeal and is disposed of by our decision.

The Facts

The facts relevant to the disposition of the appeal are: The District is a duly organized fire protection district. The Board of Supervisors of Los Angeles County is the governing board of that district. On July 9, 1957, at a regular meeting of the Board, it determined that certain territory should be annexed to the District and ordered a hearing had in the matter of the proposed annexation on Thursday, August 8, 1957. It directed the clerk of the Board to publish a notice once a week for two successive weeks in the Florence Messenger, which the Board found to be a newspaper circulated in the territory proposed to be annexed and the newspaper which the Board determined most likely to give notice to the inhabitants of said territory. A notice was published as directed in the designated newspaper. This notice did not name any person, and the boundaries of the territory to be annexed were described as follows: 'Beginning at the most westerly northwesterly corner of Tract No. 3233, as shown on map recorded in Book 36, Page 70 of Maps, in the office of the Recorder of the County of Los Angeles; thence northerly along the boundary of Consolidated County Fire Protection District, as same existed on May 29, 1957, and following the same in all its various courses and curves to the boundary of the City of South Gate, as same existed on said date; thence northerly in a direct line to the point of beginning. Containing: 0.079 square miles.'

Firestone is the owner and occupant of all but a small portion of the real property within the territory sought to be annexed and maintains a large manufacturing plant thereon. The fact of its ownership and occupancy were known to the Board and to the officers of the District. On August 8, this annexation proceeding together with 12 other proposed annexations were taken up by the Board for action. No one appeared at the meeting to protest any of the annexations. The Board thereupon took the evidence of one Hughes, a fire rating inspector for the county, his evidence being as follows: 'Q. Are you familiar with the territory sought to be annexed to the various Fire Protection Districts? A. I am. Q. In each instance, in your opinion, would the territory [proposed to be annexed] be benefited by the annexation if consummated? A. It would.' The Board thereupon adopted the resolution for the annexation of the territory in question and the Board thereafter, pursuant to section 14480, Health & Safety Code, levied an ad valorem tax upon the property of Firestone.

Firestone had no knowledge of the proposed annexation and did not acquire any knowledge of the proceeding until after the resolution of annexation had been passed and the tax assessed. It then filed a petition with the Board requesting the withdrawal of the territory included within the annexation from the District upon two grounds: First, that the annexation proceedings were invalid, and, second, that Firestone would receive no benefit from the annexation. Proceedings upon this petition were had before the Board at a number of meetings thereof and at the fourth meeting at which the matter was considered, held on April 17, 1958, the hearing upon the request of counsel for Firestone was continued for a period of 90 days in order that Firestone might commence an action to test the validity of the initial annexation.

On April 7, 1958, the Legislature passed an act validating all annexation proceedings theretofore completed other than those as to which any legal proceeding was at the effective date of the act pending and undetermined or which might be pending or undetermined during a period of 30 days from and after the date of the act. This act was effective as of April 7, 1958. See Statutes 1958, First Extraordinary Session, Chapter 10.

On May 14, 1958, Firestone filed its petition for writ of certiorari and writ of mandate in the present action.

At the trial of the action the evidence received showed without substantial conflict that the Florence Messenger in which the notice of annexation was published, was a publication which had no subscribers but was distributed by being delivered gratis to habitations and places of business within a defined area outside of the territory sought to be annexed and that it was not circulated or distributed within that territory. The evidence further showed that the boundaries of the Consolidated County Fire Protection District referred to in the published notice of the territory to be annexed, were not a matter of public record and that the only means that a property owner would have of determining whether the boundaries of the territory to be annexed as given in the published notice encompassed his property would be to, with the aid of the county engineer, search the minutes of the Board of Supervisors so as to ascertain the boundaries of the District as those were contained in numerous proceedings for annexations to the original District or for the consolidation of that district with other districts.

The trial court found that the Florence Messenger was not, at the time of the publication of the notice of annexation, circulated or distributed in the territory proposed to be annexed; that it was not the newspaper most likely to give notice to the inhabitants of the territory proposed to be annexed (the evidence showed that five newspapers of general...