Hughes v. City of Lincoln

• Decision Date: 10 March 1965
• Parties: D. Beverly HUGHES, et al., Petitioners and Respondents, v. The CITY OF LINCOLN, a municipal corporation, et al., Respondents and Appellants. Civ. 10927.
• Court: California Court of Appeals Court of Appeals

Page 306

43 Cal.Rptr. 306

232 Cal.App.2d 741

D. Beverly HUGHES, et al., Petitioners and Respondents, v. The CITY OF LINCOLN, a municipal corporation, et al., Respondents and Appellants.

Civ. 10927.

District Court of Appeal, Third District, California.

March 10, 1965.

Robert J. Trombley, Auburn, for appellant.

Bowers & Sinclair, Roseville, by Floyd H. Bowers, for respondent.

FRIEDMAN, Justice.

On July 10, 1962, the city council of the City of Lincoln adopted a resolution directing fluoridation of the municipal water supply, subject to the approval of the State Board of Public Health. A group of electors circulated a petition proposing an initiative ordinance to prohibit addition of fluorides to the city's public water supply. On September 15, 1963, the city clerk submitted the petition to the council with a certificate showing that it was signed by more than 15 per cent of the municipal voters. When a proposed initiative ordinance bearing that percentage of signatures is presented to the city council, the law requires it either to adopt the ordinance or immediately call a special election for its submission to the voters. (Elec.Code, sec. 4011.) The Lincoln city council refused to take either step. Several electors then filed this mandate action to force the city council to submit the proposed ordinance to election. After a hearing the lower court issued a peremptory writ and the city appeals.

Essentially, the city's position may be described as follows: An ordinance proposed by initiative must be one that the city council could itself enact; the Legislature has adopted a comprehensive scheme entrusting control of domestic water supplies to the State Department of Public Health, as a result of which a municipal decision to fluoridate becomes an administrative rather than legislative act, hence not subject to the initiative power of the municipal electors. We reject this position.

The courts have evolved various tests for ascertaining the scope of the initiative and referendum powers in their application to counties and cities. These powers apply to county and city measures which are legislative in character. (Johnston v. City of Claremont, 49 Cal.2d 826, 834, 323 P.2d 71; Hopping v. Council of City of Richmond, 170 Cal. 605, 611, 150 P. 977; Reagan v. City of Sausalito, 210 Cal.App.2d 618, 621, 26 Cal.Rptr. 775; Martin v. Smith, 184 Cal.App.2d 571, 575, 7 Cal.Rptr 725.) They do not extend to executive or administrative actions of the local legislative body. (Simpson v. Hite, 36 Cal.2d 125, 129, 222 P.2d 225; Housing Authority of City of Eureka v. Superior Court, 35 Cal.2d 550, 558, 219 P.2d 457; Chase v. Kalber, 28 Cal.App. 561, 568, et seq., 153 P. 397.)

The vague legislative-administrative dichotomy has been crystallized to some extent in an oft-quoted formulation in McKevitt v. City of Sacramento, 55 Cal.App. 117, 124, 203 P. 132, 136: 'Acts constituting a declaration of public purpose, and making provisions for ways and means of its accomplishment, may be generally classified as calling for the exercise of legislative power. Acts which are to be deemed as acts of administration, and classed among those governmental powers properly assigned to the executive department, are those which are necessary to be done to carry out legislative policies and purposes already declared by the legislative body, or such as are devolved upon it by the organic law of its existence.' (Reagan v. City of Sausalito, supra, 210 Cal.App.2d at pp. 621-622, 26 Cal.Rptr. 775; Fletcher v. Porter, 203 Cal.App.2d 313, 321, 21 Cal.Rptr. 452; Martin v. Smith, supra, 184 Cal.App.2d at p. 575, 7 Cal.Rptr. 725; see also 5 McQuillin on Municipal Corporations (3d ed.) pp. 255-256; Comment, Limitations on Initiative and Referendum, 3 Stan.L.Rev. 497, 502-504.)

A second test is superimposed upon the first when the local proposal deals with a subject affected by state policy and state law. If the subject is one of statewide concern in which the Legislature has delegated decision-making power, not to the local electors, but to the local council or board as the state's designated agent for local implementation of state policy, the action receives an 'administrative' characterization, hence is outside the scope of the initiative and referendum. (Simpson v. Hite, supra, 36 Cal.2d at p. 131, 222 P.2d 225; Riedman v. Brison, 217 Cal. 383, 387-388, 18 P.2d 947; Mervynne v. Acker, 189 Cal.App.2d 558, 562, 565, 11 Cal.Rptr. 340; Alexander v. Mitchell, 119 Cal.App.2d 816, 826, 260 P.2d 261.) 'When the sole basis for a determination is whether a certain 'contingent effect' exists to warrant local application of state legislation, the exercise of that narrow authority is an administrative act and not a legislative one.' (Housing Authority of City of Eureka v. Superior Court, supra, 35 Cal.2d at p. 558, 219 P.2d at p. 461; Andrews v. City of San Bernardino, 175 Cal.App.2d 459, 462, 346 P.2d 457.)

On the other hand, the matter may be one of local rather than statewide concern. In that case a local decision which is intrinsically legislative retains that character even in the presence of a state law authorizing or setting limits on the particular field of action. (Reagan v. City of Sausalito, supra, 210 Cal.App.2d at pp. 625-628, 26 Cal.Rptr. 775; Fletcher v. Porter, supra, 203 Cal.App.2d at pp. 318-319, 21 Cal.Rptr. 452; Mefford v. City of Tulare, 102 Cal.App.2d 919, 923-924, 228 P.2d 847.) If the proposal is an exercise of police power directly delegated to counties and cities by article XI, section 11, of the State Constitution, then it is likely to constitute an act of legislation rather than administration. (See Dwyer v. City Council of Berkeley, 200 Cal. 505, 511-512, 253 P. 932.)

A third test has been formulated to delineate scope of the initiative power, as distinguished from the referendum: It is well recognized that 'an ordinance proposed by the electors of a county or of a city in this state under the initiative law must constitute such legislation as the legislative body of such county or city has the power to enact under the law granting, defining and limiting the powers of such body.' (Hurst v. City of Burlingame, 207 Cal. 134, 140, 277 P. 308, 311, and quoted in Blotter v. Farrell, 42 Cal.2d 804, 810, 270 P.2d 481.)

The operation of public water systems by chartered cities has been characterized as a 'municipal affair' rather than a matter of statewide concern. (City of South Pasadena v. Pasadena Land etc. Co., 152 Cal. 579, 593-594, 93 P. 490; Mefford v. City of Tulare, supra, 102 Cal.App.2d at p. 924, 228 P.2d 847.) Nonchartered cities such as Lincoln are authorized by state law to acquire and operate domestic water supply facilities. The authorizing statutes (Gov.Code, secs. 38730, 38742) are very general and evince no intent to exclude local autonomy in the administration of municipal water systems. In California, as in other states, the action of city councils directing fluoridation of municipal water supplies is regarded as an exercise of the local police power. (DeAryan v. Butler, 119 Cal.App.2d 674, 681-682, 260 P.2d 98, cert. den. 347 U.S. 1012, 74 S.Ct. 863, 98 L.Ed. 1135; Schuringa v. City of Chicago, 30 Ill.2d 504, 198 N.E.2d 326; Wilson v. City of Council Bluffs, 253 Iowa 162, 110 N.W.2d 569; Readey v. St. Louis County Water Co. (Mo.) 352 S.W.2d 622; see Annot. 43 A.L.R.2d 453; Dietz, Fluoridation and Domestic Water Supplies in California, 4 Hast.L.J. 1; Nichols, Freedom of Religion and the Water Supply, 32 So.Cal.L.Rev. 158; Notes, 12 Am.U.L.Rev. 97; 38 Notre Dame Law. 71; 24 Md.L.Rev. 353.)

In recent years fluoridation of public water supplies as a means of reducing the incidence of dental caries among children has been the subject of widespread and heated controversy. Strenuously advocated by dental and medical experts, it is widely opposed upon a variety of religious, political and scientific grounds. The debate has been heavily annotated and we need not restate easily available references. Many are collected in Dietz, op. cit., and in 38 Notre Dame Lawyer 71, et seq. The traditional goals of water treatment are purity and potability. Fluoridation--aside from claims of merit or demerit--seeks a different goal, medication of public water supplies for a therapeutic purpose.

In meeting its responsibility for local health and safety, a city legislative body may decide that the traditional, accepted goals of water treatment are enough. Alternatively, it may decide to fluoridate, thus aiming for the relatively new and relatively controversial goal of preventive dental therapy. In a real sense, such a decision is one 'constituting a declaration of public purpose, and making provisions for ways and means of its accomplishment * * *.' (McKevitt v. City of Sacramento, supra, 55 Cal.App. at p. 124, 203 P. at p. 136.) Intrinsically therefore, as well as in its police power origin, the decision to fluoridate is legislative rather than administrative.

This view was adopted by the Supreme Court of Missouri in State ex rel. Whittington v. Strahm (Mo.) 374 S.W.2d 127. There the court upheld a referendum against a municipal ordinance clothed as a routine appropriation for the purchase of fluoridation equipment for the city water plant. Noting that the addition of fluoride went beyond the established policy of adding chemicals for purification, the court held that the decision to fluoridate was legislative. (See also discussion in 43 A.L.R.2d at pp. 453-454.)

Contrary to the position taken by the city of...