Irwin v. City of Manhattan Beach

• Decision Date: 19 July 1966
• Citation: 65 Cal.2d 13,415 P.2d 769,51 Cal.Rptr. 881
• Court: California Supreme Court
• Parties: , 415 P.2d 769 Sally J. IRWIN, Plaintiff and Appellant, v. CITY OF MANHATTAN BEACH et al., Defendants and Respondents. L.A. 28503. In Bank

Page 881

51 Cal.Rptr. 881

65 Cal.2d 13, 415 P.2d 769

Sally J. IRWIN, Plaintiff and Appellant, v. CITY OF MANHATTAN BEACH et al., Defendants and Respondents.

L.A. 28503.

Supreme Court of California,

In Bank.

July 19, 1966.

Clifford W. Twombly, Los Angeles, for plaintiff and appellant.

Walter N. Anderson, City Atty., Sweeney, Irwin, Cozy & Foye, Thomas P. Foye and William R. Sweeney, Los Angeles, for defendants and appellants.

PEEK, Justice.

This is an appeal from a judgment of dismissal entered after a demurrer to an amended complaint was sustained without leave to amend.

Plaintiff's original complaint, filed on October 4, 1961, alleged that she was a resident of Los Angeles County and a real property owner and taxpayer in the defendant City of Manhattan Beach; that certain other property owners in that city, also named defendants, had applied to the city for a permit to construct a pedestrian overpass connecting their respective business establishments, said overpass to span a public street of the city; that defendant city was the 'owner' of the said public street; that the overpass would not be available for general pedestrian traffic but would be constructed and used as an integral part of the two business premises, permitting convenient intercourse between them; that the proposal was approved by the city council and a written agreement between the city and the two property owners was accordingly entered into; that the construction and use of the overpass would constitute an exclusive private privilege, without consideration, for the use of public property by the two property owners involved; that the further public use of the street to be spanned by the overpass would be limited and interfered with; that the contemplated private use would divert public property into a source of private profit, to the detriment of the taxpayers, and contrary to the state Constitution; and that the city had on power or authority to permit such construction.

The complaint further alleged that the city council had refused plaintiff's demand that the agreement between the city and the property owners be rescinded, and that she and the other taxpayers of the city would suffer irreparable damage if said agreement were not declared illegal and construction pursuant to it enjoined. The prayer sought relief accordingly.

The complaint incorporated by reference the indicated written agreement, which was made on July 5, 1961, three months prior to the filing of the complaint. That agreement recited in part that 'the City is vitally interested and encourages the removal of pedestrian traffic insofar as practicable from the public streets and the construction of the bridge, overpass, or pedestrian ramp is found to be in the best interest of the City and the use herein contemplated will be an aid to public health, safety, and welfare.' The permission sought was granted subject to the following conditions: (a) that the overpass should be constructed in accordance with plans and specifications to be submitted to and approved by the chief building inspector and the director of public works of the city, and that the decision of said officers as to the 'manner, nature, and character of construction' should be final; (b) that the overpass should be constructed so as not to interfere with the public use of the street which it spanned, and that the construction, repair, or maintenance of the overpass should be undertaken in such a way as not to interfere at any time with the traffic on said street; (c) that the construction should be done 'pursuant to all the laws and regulations of any governmental agency applicable thereto'; (d) that the overpass should be of designated dimensions and should be a certain height above the public street; and (e) that no part of the overpass should be used for purposes other than ingress and egress, and particularly that no part should be used for the sale or consumption of food or beverages.

At the time the complaint was filed, the city had approved the plans and specifications submitted by the individual defendants, and construction had been commenced and was proceeding.

On December 6, 1961, the city demurred to the complaint on grounds of lack of capacity to sue, failure to state a cause of action, lack of jurisdiction over the subject matter, uncertainty, ambiguity, and unintelligibility. This demurrer was sustained with leave to amend.

On December 20, 1961, the city and the individual defendants modified their agreement, adding two important provisions. First, it was agreed that the individual defendants were to obtain a policy of insurance, designating the city as an additional insured, to insure the public against 'loss or damage that might result to any person or property as a result of the maintenance of said pedestrian overpass'; that the said policy should be maintained at the expense of the individual defendants as long as the overpass should be in existence; and that 'failure to maintain said policy of insurance shall be grounds for revocation of this permit forthwith.' Second, the city was given the power to revoke the permit on grounds 'including but not limited to' the following: (a) if the air space occupied by the overpass should be required by the city for a 'paramount municipal use or purpose,' or (b) if the overpass should be used for any purpose other than ingress and egress between the two business establishments, or (c) if the overpass should be maintained in such a manner as to constitute a public nuisance, or (d) if the overpass should be 'declared by any court of competent jurisdiction to be an unlawful structure over a public street.' On the same day the city council passed a resolution approving the agreement as modified.

On January 11, 1962, plaintiff filed her amended complaint, which in all relevant respects was identical to her original complaint. The city demurred on the same grounds as before, and on September 7, 1962, the demurrer was sustained without leave to amend in accordance with a memorandum of ruling filed by the court. Plaintiff appealed from the judgment of dismissal subsequently entered, and the District Court of Appeal reversed that judgment on the ground that the defendant property owners, parties indispensable to the action, neither had been served with process nor had entered an appearance below, rendering the judgment of dismissal void. (Irwin v. City of Manhattan Beach, 227 Cal.App.2d 634, 38 Cal.Rptr. 875.) At the time of that decision, June 5, 1964, the overpass in question was completed and had been in use for about 2 1/2 years, no temporary restraining order having been sought at any time.

Plaintiff then served the defendant property owners, and demurrers to the amended complaint were again interposed, the city and the property owners demurring separately on grounds identical to those stated in the city's original demurrer. On November 12, 1964, both demurrers were sustained without leave to amend 'per Memorandum of Ruling filed heretofore in this action on September 7, 1962.' Plaintiff appeals from the judgment of dismissal subsequently entered.

Defendants urge, and the trial court in its memorandum opinion held, that the demurrers herein must be sustained because plaintiff is without legal capacity to sue. Reliance is placed upon section 526a of the Code of Civil Procedure, which provides in relevant part as follows: 'An action to obtain a judgment, restraining and preventing any illegal expenditure of, waste of, or injury to, the estate, funds, or other property of a county, town, city or city and county of the state, may be maintained against any officer thereof, or any agent, or other person, acting in its behalf, either by A citizen resident therein, or by a corporation, who is assessed for and is liable to pay, or, within one year before the commencement of the action, has paid, a tax therein.' (Italics added.)

As noted above, plaintiff did not allege in her complaint that she was a 'citizen' or 'resident' of Manhattan Beach. It appears that she is unable truthfully to so allege, for she is a resident and citizen of Los Angeles, though, as she alleged, she owns property in Manhattan Beach and pays taxes levied against that property. It is therefore clear that the bare language of section 526a renders her without legal capacity to maintain the instant lawsuit.

That language would compel our holding accordingly in the instant case if it were not for the decision of this court in Mines v. Del Valle, 201 Cal. 273, 257 P. 530, wherein it was held that section 526a did not render a nonresident taxpayer without capacity to challenge alleged illegal government expenditures. Thus, at least in the case of illegal expenditures, as opposed to waste, etc., judicial decision has wholly altered the import of the statute's language.

It is now urged that we should overrule the Mines case, if for no other reason than because it was not supported by precedent. It is pointed out that both cases cited in support of that decision, Osburn v. Stone, 170 Cal. 480, 150 P. 367, and Crowe v. Boyle, 184 Cal. 117, 193 P. 111, do not in fact support it because in each the party plaintiff was a resident as well as a taxpayer, though the language of those cases speaks only of taxpayers. Further, we are referred to the case of Thomas v. Joplin, 14 Cal.App. 662, 112 P. 729, wherein the District Court of Appeal in 1910 cogently pointed out that the language of section 526a clearly reflects a legislative intention to limit the right to sue in this kind of case, for it clearly altered the common law, which required only that the plaintiff be a taxpayer supporting the governmental entity whose act is sought to be challenged.

We would consider these arguments eminently persuasive if it were not for the fact that the reading of section 526a which defendants favor violates the equal protection clause of the Fourteenth Amendment. No reason has been presented...