Mervynne v. Acker

• Decision Date: 28 February 1961
• Citation: 189 Cal.App.2d 558,11 Cal.Rptr. 340
• Parties: Olga MERVYNNE, Petitioner and Respondent, United Uptown Merchants Association, Inc., a corporation, Intervenor, Petitioner and Respondent, v. Phillip ACKER, City Clerk of The City of San Diego, a municipal corporation, Respondent and Appellant. Civ. 6495.
• Court: California Court of Appeals

Page 340

11 Cal.Rptr. 340

189 Cal.App.2d 558

Olga MERVYNNE, Petitioner and RespondentUnited Uptown Merchants Association, Inc., a corporation, Intervenor, Petitioner and Respondent, v.Phillip ACKER, City Clerk of The City of San Diego, a municipal corporation, Respondent and Appellant.

Civ. 6495.

District Court of Appeal, Fourth District, California.

Feb. 28, 1961.

Hearing Denied April 26, 1961.

J. F. DuPaul, City Atty., Alan M. Firestone, Chief Deputy City Atty., and Robert J. Cooney, Deputy City Atty., San Diego, for appellant.

W. E. Starke, San Diego, for respondent.

Richards, Bartell, Rodgers & Stewart and William R. Richards, San Diego, for intervenor.

SHEPARD, Justice.

This is an appeal from a judgment granting a peremptory writ of mandate ordering appellant to process the signatures on an initiative petition.

The facts presented by the record before us are as follows: The City Council of the City of San Diego(hereinafter called 'City') has heretofore enacted certain ordinances ¹ providing for the regulation of parking on the public streets of City with the aid of parking meters.These ordinances are incorporated in the Municipal Code of City.²These ordinances were passed by the City Council pursuant to authority granted by section 22508 of the Vehicle Code.They limit the time for parking on certain public streets of City and provide a convenient means of checking the parking time by the use of parking meters, into which meters the person parking a vehicle is required to deposit a coin, The funds derived from such deposits are required to be recorded in a special account by the city treasurer and are devoted solely to matters connected with the regulation of traffic.The ordinances also provide civil and criminal penalties for violation thereof.

August 1, 1960, an initiative petition proposing an ordinance to repeal all of said parking meter ordinances was submitted to appellant.The petition purported to be signed by more than 31,000 qualified electors of City.On advice of the city attorney that the proposed ordinance for repeal of the parking meter ordinances was not a proper subject of the initiative, appellant refused to process the names on the petition.Respondent then filed her action for a writ of mandate.After hearing, a peremptory writ was granted by the trial court, and this appeal was taken.

Appellant contends that the proposed repeal of the parking meter ordinances is not, under the present circumstances, the proper subject of an initiative petition in that the control of vehicular traffic on the public streets and highways of California is of statewide concern; that this state has fully occupied the field of regulation of vehicular traffic on the public highways; and that the granting of power to locally enact ordinances with respect to parking meters is restricted by Vehicle Code, § 22508, to the Council of City.

Parking Meters an Adjunct of Traffic Control

We think there can be no serious question but that parking meters function primarily as an aid to traffic control.They have long been recognized judicially as a legitimate aid to traffic regulation.De Aryan v. City of San Diego, 75 Cal.App.2d 292, 170 P.2d 482;Downing v. Municipal Court, 88 Cal.App.2d 345, 198 P.2d 923.

Matters of General State Concern are Not Municipal Affairs

What is a 'municipal affair' is not always easy to define.Often a close analysis of the particular 'affair' under consideration is necessary.Brewer v. Feigenbaum, 47 Cal.App.2d 171, 175, 117 P.2d 737;Butterworth v. Boyd, 12 Cal.2d 140, 147, 82 P.2d 434, 126 A.L.R. 838.However, the principle that when the state has legislatively occupied a field of general state concern, then the matters in that field ordinarily cease to be 'municipal affairs' has been enunciated in many decisions.For examples, seeAbbott v. City of Los Angeles, 53 Cal.2d 674, 681[3-7], 3 Cal.Rptr. 158(registration exconvicts);Wilson v. Beville, 47 Cal.2d 852, 856, 306 P.2d 789(eminent domain);Agnew v. City of Los Angeles, 51 Cal.2d 1, 5[2-3], 330 P.2d 385(electrical contractor's license);Los Angeles Railway Corp. v. City of Los Angeles, 16 Cal.2d 779, 783[2, 3], 108 P.2d 430(streetcar crew regulation by railroad commission);Kleiber v. City and County of San Francisco, 18 Cal.2d 718, 723, 117 P.2d 657(housing authority);Housing Authority of City of Eureka v. Superior Court, 35 Cal.2d 550, 559[9-10], 219 P.2d 457(housing authority);Dairy Belle Farms v. Brock, 97 Cal.App.2d 146, 156[4b], 217 P.2d 704(milk regulation).

Traffic Regulation Under Exclusive State Control

The right of the state to exclusive control of vehicular traffic on public streets has been recognized for more than forty years.While local citizens quite naturally are especially interested in the traffic on the streets in their particular locality, the control of such traffic is now a matter of statewide concern.Public highways belong to all the people of the state.Every citizen has the right to use them, subject to legislative regulation.Traffic control on public highways is not a 'municipal affair' in the sense of giving a municipality (whether holding a constitutional charter or not) control thereof in derogation of the power of the state.Ex parte Daniels, 183 Cal. 636, 639-641[1-3], 192 P. 442, 21 A.L.R. 1172(speed);In re Murphy, 190 Cal. 286, 287-288, 212 P. 30(reckless driving);Atlas Mixed Mortar Co. v. City of Burbank, 202 Cal. 660, 662, 262 P. 334(weight);Rafferty v. City of Marysville, 207 Cal. 657, 665, 280 P. 118(safe construction);Sincerney v. City of Los Angeles, 53 Cal.App. 440, 447, 200 P. 380(telephone poles in street);Pacific Tel. & Tel. Co. v. City and County of San Francisco, 51 Cal.2d 766, 768[1a], 336 P.2d 514(telephone lines in street);Biber Electric Co., Inc. v. City of San Carlos, 181 Cal.App.2d 342, 5 Cal.Rptr. 261(license);Wilton v. Henkin, 52 Cal.App.2d 368, 372, 126 P.2d 425(pedestrian crosswalks);Pipoly v. Benson, 20 Cal.2d 366, 369, 125 P.2d 482, 147 A.L.R. 515(pedestrian crosswalks).

Exclusive Authority in City Council Bars Use of Initiative

When, in a matter of statewide concern, the stateLegislature has specifically delegated a particular authority to the governing board, our courts have uniformly held that the initiative processes do not ordinarily apply.As was said in Riedman v. Brison, 217 Cal. 383, 387-388[2-3], 18 P.2d 947, 948:

'We are therefore of the view, without further citation of the many authorities on the question, that the legislature, in its general act, which is superior to and which controls the charter provisions in the matter of withdrawal from the district, has designated the city council of the city of Long Beach as the state agency which may initiate proceedings for the withdrawal of the municipality from the Metropolitan Water District of Southern California, of which it at the present time forms a part.The provisions of the charter of the city relating to the initiative apply only to its legislative acts which, unless otherwise authorized, can relate only to municipal affairs, of which this is not one.(Citation.)The matter to which the petition in the hands of the city clerk relates, not being a matter of municipal legislation, that official has no legal duty to perform in relation to it under the charter.'

See alsoAlexander v. Mitchell, 119 Cal.App.2d 816, 821, 260 P.2d 261;Barlotti v. Lyons, 182 Cal. 575, 584, 189 P. 282;Mitchell v. Walker, 140 Cal.App.2d 239, 244, 295 P.2d 90.City Constitutional Charter Authority Restricted to 'Municipal Affairs'

Respecting the matter with which we are here concerned, our California Constitution provides as follows:

Article IV, section 1: '* * * 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.* * *

Article XI, section 8(j): '* * * It shall be competent in any charter framed under the authority of this section to provide that the municipality governed thereunder may 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 other matters they shall be subject to general laws. * * *'(Italics ours.)

City's charter, section 2, provides in part

'The City of San Diego * * * shall have the right and power to make and enforce all laws and regulations in respect to municipal affairs, subject only to the restrictions and limitations provided for in this Charter; * * *'(Italics ours.)

It is clear, not only from the direct language of the foregoing sections of the State Constitution and of City's charter, as well as from the authorities hereinbefore cited, that the legislative power of a city, whether operating under a constitutional charter or not, is restricted to 'municipal affairs'.The legislative expression of this principle is carried into the Vehicle Code in section 21, which provides:

'The provisions of this code are applicable and uniform throughout the State and in all counties and municipalities therein, and no local authority shall enact or enforce any ordinance on the matters covered by this code unless expressly authorized herein.'(Italics ours.)

Initiative and Referendum Liberal Application

The exercise of initiative and referendum is one of the most precious rights of our democratic process.Since under our theory of government all the power of government resides in the people, the power of initiative is commonly referred to as a 'reserve' power and it has long been our judicial policy to apply a liberal construction to this power wherever it is challenged in order that the right be not improperly annulled.If doubts can reasonably be resolved in favor of the use of this reserve power, our courts will preserve it.Blotter v. Farrell, 42 Cal.2d 804, 809, ...