Martin v. Smith

• Decision Date: 14 September 1960
• Citation: 184 Cal.App.2d 571,7 Cal.Rptr. 725
• Parties: Noel MARTIN, Petitioner and Appellant, v. Amelie L. SMITH, City Clerk of the City of Sausalito, the Council of the City of Sausalito, Howard Sievers, Mayor and Member of the Council of the City of Sausalito, and John Koenig, Marjorie Brady, George Keeney and Philip Ehrlich, Members of the Council of the City of Sausalito, Respondents. Civ. 19061.
• Court: California Court of Appeals Court of Appeals

Page 725

7 Cal.Rptr. 725

184 Cal.App.2d 571

Noel MARTIN, Petitioner and Appellant, v. Amelie L. SMITH, City Clerk of the City of Sausalito, the Council of the City of Sausalito, Howard Sievers, Mayor and Member of the Council of the City of Sausalito, and John Koenig, Marjorie Brady, George Keeney and Philip Ehrlich, Members of the Council of the City of Sausalito, Respondents.

Civ. 19061.

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

Sept. 14, 1960.

Rickwell, Fulkerson & Wilson, San Rafael, for appellant.

John B. Ehlen, John H. Riordan, San Francisco, for respondents.

BRAY, Presiding Justice.

Appellant appeals from a judgment denying his petition for writ of mandate to compel respondent officials of the city of Sausalito to examine, certify and consider a referendum petition protesting the adoption of Resolutions No. 1474 and No. 1475.

Questions Presented.

1. Are said resolutions legislative in nature and therefore subject to referendum?

2. Are findings necessary?

Record. ¹

The controversy grows out of a lease made by the State Lands Commission in 1951 to Madden & Lewis Company of 9.2 acres (in 1953 increased to 11.22 acres) of filled breakwater or sandspit on submerged land in Richardson Bay, title to which was in the state. The lessee was to use the land for commercial purposes, mainly a yacht harbor and structures and facilities connected thereto. (These were to be somewhat similar to San Francisco's Yacht Harbor and its famous Fisherman's Wharf.) In 1953 (Stats.1953, ch. 534, [184 Cal.App.2d 574] p. 1795) the Legislature granted to the city of Sausalito certain tide and submerged lands which included the land above mentioned. The statute provides that the city of Sausalito 'may lease said lands, or any part thereof, for limited periods (but in no event exceeding 50 years), for purposes consistent with the trust upon which said lands are held by the State of California, and with the requirements of commerce and navigation at said harbor, and collect and retain rents from such leases, franchises and privileges.' The grant recited that it was '[s]ubject to the Madden and Lewis lease.' The term of the lease originally was until February 24, 1967, with an option in the lessee to renew for two additional periods of 10 years each. In 1955 the lessee exercised that option and the city extended the lease until 1987. Thereafter Madden & Lewis entered into certain agreements with Clarence C. Kane and Grace Management Corporation providing for a sublease of these and other premises, for the construction of a restaurant and bar, a de luxe motel, a swimming pool, small shops, and a parking area. On November 7, 1956, the council consented to this sublease. December 18, by Resolution No. 1346, the council extended the term of the Madden lease 20 years after February 24, 1987, and included an additional 4.77 acre parcel. The Kane et al. sublease was cancelled. April 7, 1959, Resolution No. 1474 was adopted which approved in principle a proposed sublease from Madden to MacMarin, Inc., final approval reserved until layout of the area as to buildings, landscape, etc., were approved by the city. May 5, 1959, Resolution No. 1475 was adopted. This consented to a sublease from Madden to MacMarin, Inc., until 2007. This constituted final approval by the city council of the sublease subject to certain terms and conditions relative to the nature and cost of the improvements to be constructed.

Within 30 days after the adoption of Resolution No. 1475 a referendum petition was filed with the city clerk protesting the adoption of both Resolutions No. 1474 and No. 1475. The city clerk, on the ground that the resolutions are not subject to referendum, refused, and continues to refuse, to examine said petition and to ascertain therefrom whether the requisite number of signatures appear thereon. Petitioner then sought a writ of mandate to compel the city officials to act in the manner required by law in connection with a valid referendum petition. The superior court refused to issue the writ.

1. Are the Resolutions Legislative or Administrative in Nature?

Acts of a legislative body which are legislative in nature are subject to the referendum process, whereas acts which are administrative in nature are not. The difference between the two types of activity is set forth in McKevitt v. City of Sacramento, 55 Cal.App. 117, 124, 203 P. 132, 136, as follows: '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.'

McQuillin on Municipal Corporations (3d ed.), volume 5, pages 255-256, states: 'Again it has been said: 'The power to be exercised is legislative in its nature if it prescribes a new policy, or plan; whereas, it is administrative in its nature if it merely pursues a plan already adopted by the legislative body itself, or some power superior to it.'' Citing Seaton v. Lackey, 298 Ky. 188, 182 S.W.2d 336, 339.

Applicable here is the following from Hopping v. Council of City of Richmond, 1915, 170 Cal. 605, 611, 150 P. 977, 979: 'To allow it [referendum] to be invoked to annul or delay executive conduct would destroy the efficiency necessary to the successful administration of the business affairs of a city.'

The State Lands Commission's action in granting the lease to Madden & Lewis Co. 'for lawful commercial purposes,' pursuant to the company's application for a lease for such purposes, clearly recognized and declared a policy in favor of the use of the land for private commercial purposes. It seems equally clear that the state Legislature, in granting this land and other tidelands to the city '[s]ubject to the Madden and Lewis lease,' clearly confirmed and ratified the action of the State Lands Commission. The policy for the private commercial use of the sandspit has, therefore, both the state's legislative and administrative sanction.

The city, in the case at bar, accepted the trust in the tidelands granted by the state. The city council thereby performed a legislative act, one that fixed the city's policy to administer the trust in accordance with all the obligations attached thereto, including the existing Madden & Lewis Co. lease and the right therein specified to use the leasehold 'for lawful commercial purposes.' It seems obvious that, in administering this trust, the city council was merely carrying out its commitment to fulfill the obligations previously assumed by the trust settlor, the State of California.

The statute granting to the city of Sausalito, in trust, tidelands within its corporate limits, including the 'sandspit,' sets forth the objects of that trust, and Resolutions No. 1474 and No. 1475 are merely administrative steps toward the carrying out of those objects.

Civil Code, section 718, limits the leases of tidelands and submerged lands granted by the state to a city to a term of 50 years, and includes within the purposes of such leases not only harbor development but 'any other public use or purpose consistent with the requirements of commerce or navigation at, or in, any such harbor or harbors.'

Government Code, section 37386, provides: 'A city may lease such tide and submerged lands and uplands for: (a) Industrial uses. (b) Improvement and development of city harbors. (c) Construction and maintenance of wharves, docks, piers, or bulkhead piers. (d) Other public uses consistent with the requirements of commerce or...