Mefford v. City of Tulare

• Decision Date: 19 March 1951
• Court: California Court of Appeals Court of Appeals
• Parties: MEFFORD v. CITY OF TULARE et al. Civ. 4078.

Page 847

228 P.2d 847

102 Cal.App.2d 919

MEFFORD v. CITY OF TULARE et al.

Civ. 4078.

District Court of Appeal, Fourth District, California.

March 19, 1951.

Rehearing Denied April 12, 1951.

Hearing Denied May 17, 1951.

Maddox & Abercrombie and Erling H. Kloster, all of Visalia, and John R. Berryhill, Tulare, for appellants.

Harold D. Mefford, Hayward, for respondent.

MUSSELL, Justice.

Action for declaratory relief.

Plaintiff, as owner of a 38 acre tract of land in the city of Tulare, brought the instant action, under the declaratory relief provisions of section 1060 of the Code of Civil Procedure, to test the validity of a city ordinance, which, insofar as here material, provides as follows: 'Subdividers of any acreage now or hereafter subdivided shall be required to furnish Profile Map, showing proposed subdivision drainage, etc., for approval of City Engineering Department as to good engineering practice, and shall furnish and install their own sewer and water facilities within the boundaries of the subdivision at the expense of the owner or subdivider. Such installations shall be made in accordance with plans approved by the City Engineer, and subject to inspection by the City before acceptance of the project for maintenance by the City.'

There is no dispute as to the material facts. The city of Tulare has been a charter city since 1923 and in February, 1949, the registered voters thereof voted upon and passed the ordinance in question (No. 572). This ordinance had been proposed by way of an initiative petition. Plaintiff filed no tentative subdivision map with any city official or board and had taken no affirmative action to comply with the ordinance or the Subdivision Map Act (Division 4, Part 2, Chapter 2 of the Business and Professions Code).

Plaintiff alleged in his complaint, among other things, that he was 'desirous of subdividing and improving' his tract, but that 'the defendants will refuse to provide water and sewer facilities for said real property by any procedure except that prescribed by said ordinance, and that defendants uphold and assert the validity of said ordinance.' It is alleged that by reason of these facts that an 'actual controversy' existed between the parties. It is further alleged that the ordinance is void in that it was adopted without appropriate power in the electorate of the city to enact such an ordinance by an initiative measure.

The trial court concluded that plaintiff was entitled to declaratory relief and that ordinance No. 572 of the city of Tulare was adopted as an initiative measure without appropriate power in the electors of the city. Judgment was awarded in favor of plaintiff, decreeing that the questioned ordinance was null and void as against the plaintiff and that the defendants be restrained and enjoined from enforcing it against him.

Defendants appeal from the judgment, contending that (1) The case is not a proper one for declaratory relief; and (2) That the ordinance involved is a valid exercise of the initiative powers of the electorate. We cannot agree with appellants' first contention.

The purpose of declaratory relief is to liquidate uncertainties and controversies which might result in future litigation and whether a determination is proper in an action for declaratory relief is a matter within the trial court's discretion. Unless a clear abuse of discretion is shown, the trial court's decision will not be disturbed on appeal. Hannula v. Hacienda Homes, Inc., 34 Cal.2d 442, 448, 211 P.2d 302. As was said in Maguire v. Hibernia Savings & Loan Soc., 23 Cal.2d 719, 729, 146 P.2d 673, 678, 151 A.L.R. 1062: 'The purpose of a declaratory [relief] judgment is to 'serve some practical end in quieting or stabilizing an uncertain or disputed jural relation.'' (Citing cases.) The complaint herein states a cause of action for declaratory relief under the rules announced in the foregoing decisions. The relief sought by plaintiff is available to him even though he failed to file a tentative subdivision map or take steps to comply with the ordinance. This is so because it does not appear that such action would have been speedy and adequate or so well suited to plaintiff's needs as declaratory relief. The remedies provided by the statute are cumulative and declaratory relief may be asked alone or with other relief. Code Civ.Proc. secs. 1060-1062; Columbia Pictures Corp. v. DeToth, 26 Cal.2d 753, 761, 161 P.2d 217, 162 A.L.R. 747.

The remaining material question before us is whether or not the ordinance involved is within the initiative powers of the electorate of the city of Tulare. Our conclusion is that the enactment of the ordinance was and is a valid exercise of such powers and that the trial court erred in decreeing it to be null and void.

Article IV, Section 1 of the California Constitution reserves to the people of the state the initiative power and also reserves such powers to cities and counties in the following language: 'The initiative and referendum powers of the people are hereby further reserved to the electors of each county, city and county, city and town of the State to be exercised under such procedure as may be provided by law. * * * Nothing contained in this section shall be construed as affecting or limiting the present or future powers of cities or cities and counties having charters adopted under the provisions of Section 8 of Article XI of this Constitution.'

The Constitution further provides that chartered cities are empowered '* * * to make and enforce all laws and regulations in respect to municipal affairs, subject only to the restrictions and limitations provided in their several charters, and in respect to [all] other matters they shall be subject to and controlled by general laws. * * *' (Article XI, sec. 6, California Constitution.)

As was said in City of Grass Valley v. Walkinshaw, 34 Cal.2d 595, 598, 599, 212 P.2d 894, 896: 'The charter operates not as a grant of power, but as an instrument of limitation and restriction on the exercise of power over all municipal affairs which the city is assumed to possess; and the enumeration of powers does not constitute an exclusion or limitation. West Coast Advertising Co. v. San Francisco, 14 Cal.2d 516, 521-522, 525, 95 P.2d 138, and cases cited; City of Oakland v. Williams, 15 Cal.2d 542, 550, 103 P.2d 168; City and County of San Francisco v. Boyd, 17 Cal.2d 606, 617-618, 110 P.2d 1036; Kennedy v. Ross, 28 Cal.2d 569, 575, 170 P.2d 904; Ayres v. City Council of Los Angeles [ante], 34 Cal.2d at pages 31, 37, 207 P.2d 1 . Thus in respect to municipal affairs the city is not subject to general law except as the charter may provide. Heilbron v. Summer, 186 Cal. 648, 650, 200 P. 409; Muehleisen v. Forward, 4 Cal.2d 17, 19, 46 P.2d 969. As recognized in the West Coast Advertising case, the levy of taxes for city purposes is a municipal affair; the collection, treatment and disposal of city sewage and the making of contracts therefor are likewise municipal affairs, Loop Lumber Co. v. Van Loben Sels, 173 Cal. 228, 232, 159 P. 600, and neither may be held to be circumscribed except as expressly limited by the charter provisions. All rules of statutory construction as applied to charter provisions, Braun, Bryant & Austin v. McGuire, 201 Cal. 134, 143, 255 P. 808; Hartford Acc[ident] [& Indem.] Co. v. City of Tulare, 30 Cal.2d 832, 835, 186 P.2d 121, are subordinate to this controlling principle. The former guide--that municipalities have only the powers conferred and those necessarily incident thereto, City and County of San Francisco v. Boyle, 195 Cal. 42l, 233 P. 965--is inapplicable. A construction in favor of the exercise of...