O'Loane v. O'Rourke

• Decision Date: 21 January 1965
• Citation: 231 Cal.App.2d 774,42 Cal.Rptr. 283
• Court: California Court of Appeals Court of Appeals
• Parties: Glen M. O'LOANE and Dean Mericle, Petitioners and Respondents, v. Lawrence W. O'ROURKE, City Clerk of the City of Commerce, a Municipal Corporation of the State of California, Maurice H. Quigley, Mayor, Charles F. Scheibler, James W. Bristow, Robert B. Salerno, and George H. Chavez, Councilmen of the aforesaid City of Commerce, Defendants and Appellants. Civ. 28265.

Page 283

42 Cal.Rptr. 283

231 Cal.App.2d 774

Glen M. O'LOANE and Dean Mericle, Petitioners and Respondents, v. Lawrence W. O'ROURKE, City Clerk of the City of Commerce, a Municipal Corporation of the State of California, Maurice H. Quigley, Mayor, Charles F. Scheibler, James W. Bristow, Robert B. Salerno, and George H. Chavez, Councilmen of the aforesaid City of Commerce, Defendants and Appellants.

Civ. 28265.

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

Jan. 21, 1965.

William Camil, City Atty. of City of Commerce, for appellants.

Bailie, Turner, Lake & Sprague, Los Angeles, for respondents.

Elmer Patrick Friel, Los Angeles, amicus curiae on behalf of respondents.

FOURT, Justice.

This is an appeal from a judgment in a mandate proceeding wherein it was ordered, among other things, that the City Council of the City of Commerce either repeal a resolution which adopted a 'general plan' or submit the same to a vote of the electors.

In a petition for a writ of mandate, petitioners allege, among other things, that they are electors of the City of Commerce (hereinafter referred to as city) and entitled to vote in any referendum election in the city; that the city is organized under the general laws of the State and has no particular charter provisions for referendum of any legislative enactments of the city council of the city; that O'Rourke is the city clerk of the city and the other named defendants are members of the city council (hereinafter referred to as council) of the city; that the council adopted a resolution entitled 'A Resolution Of The City Council Of The City of Commerce Approving A General Plan'; that the petitioner, with other qualified electors, circulated a petition against the resolution and petitioned the council to repeal the same or submit it to the vote of the electors of the city; that on September 18, 1963, the petition was filed with the clerk of the city and it bore the signatures of 632 electors of the city; that the total number of electors in the city is 3,267. It is further set forth that the clerk refused to examine the petition to determine whether it was signed by the requisite number of electors and referred the same to the council; that the council considered the petition and determined that the resolution was not a proper subject to be referred to the electorate and tabled the petitions; that the council failed to repeal the resolution or to take steps to submit the same to the vote of the electorate: there then followed a prayer in the petition for mandate that the court command the clerk to examine the petitions and ascertain whether they were signed by the requisite number of electors and that the council reconsider the resolution and either repeal the same or submit it to the vote of the electors of the city.

An answer was filed by the clerk and the council wherein they denied, in effect, that petitioners had circulated a petition protesting the resolution, denied that the petition was circulated and signed by qualified electors and denied, in effect, that the petition contained the signatures of 632 electors and that there were 3,267 electors in the city. The answer also alleged that no cause of action was stated and that 'the adoption of a general plan is not a subject of referendum under the laws of the State of California,' and that a resolution, as distinguished from an ordinance, is not subject to referendum. Defendants, in substantially all other respects, in effect admitted the allegations of the petition for the writ of mandate.

The trial judge, after a hearing, made findings of fact and conclusions of law. ¹

A judgment following the findings and conclusions was made and entered, and, in effect, ordered the clerk to examine the registration records and to ascertain whether the persons who signed the petitions are qualified voters of the city, to fairly determine if the petitions set forth the date required by the Elections Code, to transmit the petitions to the council and mayor properly certified if the petitions are sufficient, and to make known to the court how he has executed the writ of the court. The judgment further ordered the mayor and the council to reconsider the resolution and either repeal the same or submit it to the vote of the electors of the city, and to make known to the court, at a date to be set, what they have done.

This appeal followed. There apparently is no reporter's transcript of the proceedings at the trial. With reference to the record appellants desired in the appeal, notice was given to prepare a reporter's transcript (apparently knowing there was none to be had) and (pursuant to rule 5(a) of Rules on Appeal) the judgment roll, the proposed findings of fact and conclusions of law prepared and submitted by the petitioners, the findings of fact and conclusions of law as signed, the objections to said findings of fact and conclusions of law, the proposed formal judgment, points and authorities in opposition to the petition, the decision and judgment of the court and the copy of the general plan. Respondents requested, in addition to the matters mentioned, that their points and authorities in support of the petition, and amicus curiae brief, a copy of the supplemental notice of appeal and a letter from the amicus curiae to the judge be included in the record.

Appellants now assert that in a general law city the adoption of a general plan is not subject to referendum, and, further, that even if such a proceeding is subject to referendum, in this particular case the evidence does not support the findings.

With reference to the claim of lack of evidence to support the findings, under the circumstances of this case, as here presented, this court must and does presume that the trial court received evidence which supports its findings. (Whilte v. Jones, 136 Cal.App.2d 567, 571, 288 P.2d 913; Dumas v. Stark, 56 Cal.2d 673, 674, 16 Cal.Rptr. 368, 365 P.2d 424; Hearst Publishing Co. v. Abounader, 196 Cal.App.2d 49, 55, 16 Cal.Rptr. 244.)

This court holds that under the circumstances of this appeal all intendments are in support of the judgment, and all proceedings necessary to its validity are presumed to have been taken, and any matters which might have been presented to the trial court which would have authorized the judgment will be presumed to have been thus presented, as the record before us shows nothing to the contrary.

Had the appellants wanted a court reporter to take down and transcribe the proceedings, it would have been an easy matter to request that such be done, or they otherwise could have brought a proper record to this court if it was intended to question the sufficiency of the evidence. There is no merit to the assertion that the evidence does not support the findings.

The real question in this case is whether, under the general law, the adoption by a city council of a general plan is subject to referendum.

Appellants argue that the adoption of the general plan under the applicable provisions of the Government Code (§§ 65400 to 65555) is not subject to the referendum, stating, in effect, that the general plan is not a zoning ordinance, that it has no legislative effect, that the adoption of such a plan is an administrative and executive act and not a legislative act.

The operation of the Planning Act is optional or permissive with the council. The statute states on its face that a city may have a planning commission; however, a planning commission is not necessarily required in a city. Planning and zoning do not necessarily cover identical fields of municipal endeavors. In other words, the Legislature has not made the formulation of a general plan a precondition to the exercise of zoning control. It is appropriately said in Angermeier v. Borough of Sea Girt, 27 N.J. 298, 142 A.2d 624, 629-630:

'* * * While municipal planning embraces zoning, the converse does not hold true. They are not convertible terms. Zoning is not devoid of planning, but it does not include the whole of planning. Zoning is a separation of the municipality. into districts, and the regulation of buildings and structures, according to their construction, and the nature and extent of their use, and the nature and extent of the uses of land. This is the constitutional sense of the term. * * * Planning has a much broader connotation. It has in view, as we have seen, the physical development of the community and its environs in relation to its social and economic well-being for the fulfillment of the rightful common destiny, according to a 'master plan' based on 'careful and comprehensive surveys and studies of present conditions and the prospects of future growth of the municipality,' and embodying scientific teachings and creative experience. In a word, this is an exercise of the State's inherent authority, antedating the Constitution itself, to have recourse to such measures as may serve the basic common moral and material needs. Planning to this end is as old as government itself--of the very essence of an ordered and civilized society. * * *

'As Professor Haar has said in his notable contribution to the subject, 'In Accordance with a Comprehensive Plan,' 68 Harv. L.Rev. 1154, 1156 (1955), the 'city master plan is a long-term general outline of projected development; zoning is but one of the many tools which may be used to implement the plan.' * * *' (Emphasis added.)

Professor Haar in the article above cited (68 Harvard Law Rev. 1175) further states that if the master plan is to have '* * * a directly controlling influence on zoning regulation, it would appear necessary to have it legislatively adopted, rather than merely stated by the planning authorities and functioning as an interesting study without much direct relevance to day-to-day activity. In the past, the fear that legislative adoption and amendment might prove overly cumbersome has caused most planners to advise excluding the local legislature from...