Martin v. Smith, 19061

• Citation: 1 Cal.Rptr. 307,176 Cal.App.2d 115
• Decision Date: 11 December 1959
• Docket Number: No. 19061,19061
• Court: California Court of Appeals
• Parties: Noel MARTIN, Petitioner and Appellant, v. Amelie L. SMITH, City Clerk of City of Sausalito; Council of City of Sausalito; Howard Sievers, Mayor and Member of Council of City of Sausalito; and John Koenig, Marjorie Brady, George Keeney and Philip Ehrlich, Members of Council of City of Sausalito, Respondents and Moving Parties.

Page 307

1 Cal.Rptr. 307

176 Cal.App.2d 115

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

No. 19061.

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

Dec. 11, 1959.

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

John B. Ehlen, San Francisco, John H. Riordan, San Francisco, of counsel, for respondent.

BRAY, Presiding Justice.

Motion to dismiss appeal upon ground that the appeal has become moot.

Question Presented.

Is Resolution No. 1485 of the city of Sausalito essentially the same as Resolution No. 1475, thereby violating the principle of the referendum process?

Record.

April 7, 1959, the council of the city of Sausalito adopted Resolution No. 1474. May 5 it adopted Resolution No. 1475. Thereafter a referendum petition was presented to the council requesting it to either repeal said resolutions or submit the same to a vote of the electors. On June 17, appellant filed in the superior court a petition for writ of mandate to compel the city clerk and the council to consider and act upon said referendum petition, alleging that they refused to do so. The council on July 14 passed Resolution No. 1485. The superior court denied the petition for writ of mandate. It is the appeal from such denial that respondents are seeking to dismiss.

The controversy grows out of a lease made by the State Lands Commission in 1951 to Madden & Lewis Co. 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. ¹ The lessee was to use the land for commercial purposes, mainly a yacht harbor and structures and facilities connected thereto. In 1953 (Stats.1953, chap. 534, p. 1795) the Legislature granted to the city of Sausalito certain tide and submerged lands which included the land above mentioned. 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 and 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. July 2, 1959, the attorney general issued opinion No. 59/123 in which it questioned the validity of Resolution No. 1475 on two grounds, (1) that the 20 year extension (from 1987 to 2007) set forth in Resolution No. 1346 was so inseparably connected with the Kane et al. sublease that when the latter was terminated the extension of the Madden lease did not survive, and therefore Resolution No. 1475 attempted to consent to a sublease for a period 20 years beyond the term of the main lease; and (2) that the term of the sublease (to 2007) appeared to violate the 50 year limitation in the 1957 grant to Sausalito and general code sections such as sections 718, Civil Code, 37384 and 37385, Government Code. Thereafter and on July 14, Resolution No. 1485 was adopted. No referendum was filed as to this resolution.

The Right of Referendum.

'It is well settled that the power of initiative and referendum, as exercised in this state, is the exercise by the people of a power reserved to them, and not the exercise of a right granted to them. Section 1, article 4, of the Constitution expressly so provides. [Citations.] For that reason, and in order to protect the people of this state in the exercise of this reserved legislative power, statutory or charter provisions dealing with the referendum should be afforded the same liberal construction afforded election statutes generally.' Ley v. Dominguez, 1931, 212 Cal. 587, 593, 299 P. 713, 715; Whittemore v. Seydel, 1946, 74 Cal.App.2d 109, 115, 168 P.2d 212. Thus it is the duty of the courts to jealously guard this right of the people and to prevent any action which would improperly annul that right.

Section 1772, Elections Code, provides in effect that when a proper referendum petition is filed with a legislative body, that body must entirely repeal the ordinance against which the petition is filed or submit the same to the voters, as there set forth. 'If the legislative body repeals the ordinance or submits the ordinance to the voters and a majority of the voters voting thereon do not vote in favor thereof such ordinance shall not again be enacted by the legislative body for a period of one year after the date of its repeal by the legislative body or disapproval by the voters.'

In this case the council neither repealed the resolutions referred to in the referendum petition nor submitted them to the voters, apparently upon the theory that they are not subject to referendum. Whether they are or not is one of the questions, if not the main question to be determined when the appeal comes before us on the merits. Respondents contend that the appeal has become moot because of the enactment of Resolution No. 1485. Until the appeal itself is heard and for the purposes of this motion, we must assume that referendum does lie as to the resolutions, for if referendum does not lie then the validity of Resolution No. 1485 as being violative of the referendum process would not be an issue. It is necessary, then, for us to determine what is the test of determining whether a second legislative enactment violates the spirit of the referendum process and is essentially the enactment of the same act against which a referendum has been filed, and then to determine whether Resolution No. 1485, by such test, does violate the referendum process.

The test is well settled. Generally, it is whether the second legislative enactment is essentially the same as the first. 'It may be conceded that, ordinarily, when an ordinance which has been suspended by a referendum has been repealed by the council, the council cannot enact another ordinance in all essential features like the repealed ordinance; * * * The council may, however, deal further with the subject-matter of the suspended ordinance, by enacting an ordinance essentially different from the ordinance protested against, avoiding, perhaps, the objections made to the first ordinance.' In re Stratham, 45 Cal.App. 436, 439-440, 187 P. 986, 988; see also Gilbert v. Ashley, 93 Cal.App.2d 414, 415, 209 P.2d 50. 'We think it is correct that the council could not then give life to the dead ordinance by passing it over again, or by passing an ordinance in all essential features like the one against which the petition protested. This would plainly be to nullify the referendum provisions of the charter. But it is equally clear that the council is not prevented from legislating on the subject-matter of the dead ordinance. It doubtless may, if it acts in good faith and with no intent to evade the effect of the referendum petition, pass an ordinance covering the same subject-matter that is essentially different from the ordinance protested against, avoiding, perhaps, the objections made to the first ordinance.' In re Megnella, 1916, 133 Minn. 98, 157 N.W. 991, 992.

Resolution No. 1485 Essentially the Same as Resolution No. 1475.

While Resolution No. 1485 contained matters additional to those in No. 1475, it clearly appears that with one exception, namely the reduction of the expiration of the term of the lease from 2007 to 2002, Resolution No. 1475 is reenacted in toto. Resolution No. 1485 sets forth that the attorney general's opinion No. 59/123, before mentioned, states that the intended uses of the land in the sublease from Madden to MacMarin referred to in Resolution No. 1475 do not violate the trust imposed upon the city by the state grant and that the 'current term of the leasehold interest' of Madden expires February 24, 1987, notwithstanding the provisions...