Oakland Municipal Improvement League v. City of Oakland

• Decision Date: 28 January 1972
• Citation: 100 Cal.Rptr. 29,23 Cal.App.3d 165
• Court: California Court of Appeals Court of Appeals
• Parties: OAKLAND MUNICIPAL IMPROVEMENT LEAGUE et al., Plaintiffs and Appellants, v. CITY OF OAKLAND, Defendant and Respondent. Civ. 28561.

Page 29

100 Cal.Rptr. 29

23 Cal.App.3d 165

OAKLAND MUNICIPAL IMPROVEMENT LEAGUE et al., Plaintiffs and Appellants, v. CITY OF OAKLAND, Defendant and Respondent.

Civ. 28561.

Court of Appeal, First District, Division 4, California.

Jan. 28, 1972.

Rehearing Denied Feb. 25, 1972.

Carroll, Burdick & McDonough, San Francisco, for plaintiffs-appellants.

Edward A. Goggin, City Atty., David A. Self, Deputy City Atty., Oakland, for defendant-respondent.

DEVINE, Presiding Justice.

A petition for writ of mandate and prohibition, in which plaintiffs sought to have the City of Oakland, its council and its city manager prevented from acting under its charter of 1969, having been dismissed by the superior court, plaintiffs appeal. They contend that the charter should be declared void because of defects in the process of enactment.

Plaintiffs are the Oakland Municipal Improvement League, an association which was organized for the purpose (among others) of defeating the charter at the November 5, 1968, election; several labor unions, including those composed of active and retired municipal employees; individual employees of the city; and a taxpayer who purports to act for all of the taxpayers of the city as well as for himself.

The alleged defects in the enactment of the charter are: 1) The entire charter, as proposed, was not published in the official newspaper of the city as required by the Constitution, article XI, section 8, subdivisions (d) and (h), but was published in part only, because certain sections of the old charter, which were carried into the new, were simply incorporated by reference in the publication. 2) Copies of the proposed charter were not timely mailed to the voters, in violation of the same subdivisions of the Constitution. 3) A purported 'Explanatory Statement' which was mailed to the voters by direction of the city council was in fact an argument in favor of the new charter. 4) Some 75 or 100 copies of the pamphlet containing the proposed charter omitted the word 'no' from the sentence, 'The City Council shall have no administrative powers.'

By way of showing that they had exhausted other means of preventing the effectuating of the new charter, plaintiffs allege that they sought to prevent the proposed charter from being submitted to the voters, by petition for writs of prohibition and mandate, but that the court denied the petition on the ground that notwithstanding possible defects, the court should not interfere with the electoral process. Plaintiffs then sought the same relief from the Supreme Court, but their petition was denied on October 23, 1968. Of course, the plaintiffs took an active part in attempting to have the charter defeated at the polls, but they were unsuccessful. On November 5, 1968, the charter was approved by a vote of 65,350 for and 63,609 against. Following the adoption of the proposed new city charter by the voters, appellants appeared in Sacramento to urge the Legislature to refuse to ratify the charter or if the Legislature would not do that, to cause the Legislature to make the asserted defects appear on the face of the concurrent resolution, so that an attack could be renewed in court. (People ex rel. Levin v. County of Santa Clara, 37 Cal.2d 335, 339, 231 P.2d 826.) Many exhibits were submitted to the Senate Rules Committee and the Assembly Rules Committee, and appearances were made before those committees by attorneys for both sides. On January 27, 1969, the charter was approved by the Legislature (Stats.1969, res.ch. 21, p. 3528). The resolution recites that 'Proceedings have been taken and had in accordance with all applicable law for the proposal, adoption and ratification of a certain new Charter of the City of Oakland, a municipal corporation in the County of Alameda.' On January 28, 1969, the resolution of approval was filed in the office of the Secretary of State. ¹

On February 24, 1969, the present proceeding was commenced. A general demurrer to the petition was overruled and the city filed an answer. But on October 30, 1969, the city filed a motion to dismiss on the ground that the court lacked jurisdiction of the proceedings, because the only attack which could be made on the charter, which had become effective upon filing with the Secretary of State, would be a quo warranto proceeding. The superior court granted the city's motion, stating, 'since the Charter has now been in effect since January 28, 1969, it may only be attacked, if at all, in Quo warranto proceedings brought by the Attorney General of the State of California.'

Exclusiveness of Quo Warranto

Appellants' first point is that quo warranto is not the only remedy available. They concede that the Supreme Court has said otherwise, in County of Santa Clara v. Hayes Co., 43 Cal.2d 615, 618, 275 P.2d 456, 458, wherein there is this language: 'Once the charter had been put into effect, however, it could only be attacked in quo warranto proceedings. (Taylor v. Cole, 201 Cal. 327, 333, 338--340, 257 P. 40, and cases cited; see American Distilling Co. v. City Council, Sausalito, 34 Cal.2d 660, 667, 213 P.2d 704, 18 A.L.R.2d 1247.)' They say, however, that this was dictum, which they urge us boldly to disapprove; but it was not dictum. The city council was suing a printing company for damages for publishing a garbled version of a charter which was so defective that the charter had been invalidated in the quo warranto proceeding, as described in the opinion of People ex rel. Levin v. County of Santa Clara, 37 Cal.2d 335, 231 P.2d 826. In the damages case, the question was whether the statute of limitations began from the date the mistake was made or from the time the charter was invalidated. The court held that it was the latter, because the county could not attack a charter, valid on its face, in an action against defendant (for only the Attorney General could commence such an action in the name of the People), and thus establish damages flowing from the mispublications. Thus the matter of quo warranto was an integral part of the decision.

But besides this, the recognition of the exclusiveness of quo warranto in the County of Santa Clara case, it has been held that, absent constitutional or statutory regulations providing otherwise, quo warranto is the only proper remedy in cases in which it is available. (Cooper v. Leslie Salt Co., 70 Cal.2d 627, 632--633, 75 Cal.Rptr. 761, 451 P.2d 406; San Ysidro Irr. Dist. v. Superior Court, 56 Cal.2d 708, 16 Cal.Rptr. 609, 365 P.2d 753.) Appellants do not contend that a quo warranto proceeding would not be available, nor could they do so successfully. (See People v. County of Santa Clara, 37 Cal.2d 335, 231 P.2d 826; People v. City of San Buenaventura, 213 Cal. 637, 3 P.2d 3.) It follows that such a proceeding is exclusive.

Asserted Waiver

Appellants contend that even if quo warranto were the exclusive remedy in this case, respondent failed to raise the issue by way of demurrer or in its answer, and therefore has waived any objections. In support of this proposition, appellants cite Code of Civil Procedure, section 434. Appellants assert that the issue herein was apparent from the face of the complaint, and that such objection is in reality a plea in abatement, which must be raised at the earliest possible moment (citing 2 Witkin, Cal. Procedure, § 554, p. 1553 (3 Witkin, Cal. Procedure (2d ed.) § 953, p. 2533), and Town of Susanville v. Long, 144 Cal. 362, 77 P. 987).

In the Town of Susanville case, the ordinance had specifically provided that the town marshal should commence suit to collect liquor licenses in the name of the 'Town of Susanville.' This the marshal did; wherefore, there was no defect whatever. The court observed that 'were it otherwise, the defendant did not raise the question as to the legal capacity of plaintiff to bring the suit, either by demurrer or answer, and it is therefore deemed to have waived it. (Code Civ.Proc., §§ 430, 433, 434.)' (144 Cal. at p. 364, 77 P. at p. 987.)

The statement in the Town of Susanville case, however, together with the Witkin text does not apply to the case before us. The distinction relative to our case was announced in Klopstock v. Superior Court, 17 Cal.2d 13, 17--19, 108 P.2d 906, which specifically distinguishes the Town of Susanville (at p. 18, 108 P.2d 906), and in Parker v. Bowron, 40 Cal.2d 344, 351--352, 254 P.2d 6. It is this: the question of Standing to sue is different from that of capacity. Incapacity is merely a legal disability, such as infancy or insanity, which deprives a party of the right to come into court. The right to relief, on the other hand, goes to the existence of a cause of action. The issue of right to relief, standing to sue, as is the lack of capacity to sue, is a matter of mere abatement. ² The appropriate reference to Witkin is volume 3, California Procedure (2d ed.) section 814, page 2424, which cites the Klopstock and Parker cases.

In a case in which quo warranto is the proper remedy, the cause of action is vested in the People, and not in any individual or group, on matter how affected they may be, or how much more the subject matter may touch their interests than it does other members of the citizenry. They simply are not entitled to sue. (Taylor v. Cole, 201 Cal. 327, 333, 257 P. 40; County of Santa Clara v. Hayes Co., Supra, 43 Cal.2d at p. 618, 275 P.2d 456.) Where the complaint states a cause of action in someone (here, in the People) but not in the plaintiff, a general demurrer for failure to state a cause of action will be sustained (Klopstock v. Superior Court, Supra, 17 Cal.2d at pp. 18--19, 108 P.2d 906), or the issue may be raised at any time in the proceedings, as by objection to the introduction of any evidence (Parker v. Bowron, Supra, 40 Cal.2d 344, 254 P.2d 6). In the instant case, respondent demurred generally on the ground that the petition does not state facts sufficient to constitute a cause of action. This was sufficient to raise the...