People by Howser ex rel. Levin v. Santa Clara County

• Decision Date: 28 May 1951
• Citation: 231 P.2d 826,37 Cal.2d 335
• Parties: PEOPLE by HOWSER ex rel. LEVIN v. SANTA CLARA COUNTY et al. (WICKETT, Intervenor). S. F. 18149.
• Court: California Supreme Court

Page 826

231 P.2d 826

37 Cal.2d 335

PEOPLE by HOWSER ex rel. LEVIN v. SANTA CLARA COUNTY et al. (WICKETT, Intervenor).

S. F. 18149.

Supreme Court of California, in Bank.

May 28, 1951.

Hearing Denied June 25, 1951.

Campbell, Hayes & Custer, San Jose, Edwin J. Owens, Santa Clara, and Robert E. Hayes, San Jose, for intervener and appellant.

Fred N. Howser, Los Angeles, J. B. Peckham, John H. Machado, Peter J. Mancuso and Raymond G. Callaghan, San Jose, for respondents.

CARTER, Justice.

The trial court invalidated a charter adopted by defendant, Santa Clara County Stats.1949, Conc. & Joint Resol., ch. 156, p. 3294, pursuant to § 7 1/2 of Article XI of the Constitution on the ground that the publication of the charter prior to the vote thereon was faulty

A charter may be adopted by a county by following specified procedure set forth in the Constitution. After a board of freeholders has been elected and drafted a proposed charter, the county board of supervisors 'shall thereupon cause said proposed charter to be published for at least ten times in a daily newspaper of general circulation, printed, published and circulated in said county * * *.' Cal.Const., Art. XI, § 7 1/2. Thereafter the charter is submitted to the electors. After it is adopted by the electorate, it is submitted to the legislature, which must approve or reject it as a whole before it becomes effective. Cal.Const., Art. XI, § 7 1/2.

Here the charter was approved by the electors. Proceedings were then instituted to prevent its submission to the legislature on the same ground advanced in the instant case (defect in publication) but they were unsuccessful. Santa Clara County v. Superior Court, 33 Cal.2d 552, 203 P.2d 1. The charter was submitted to the legislature and a resolution approving it was adopted. Stats.1949, p. 3294, Conc. & Joint Resol., ch. 156. The resolution recites, however, the proceedings by the local authorities, stating that the charter was published for at least ten days (September 16th to September 25th, inclusive) but 'That during the course of the ten day publication of the * * * Charter as aforesaid, in certain publications thereof, to-wit, in those published and circulated on the 17th, 18th, 19th, 20th and 21st days of September, 1948 there was a break in the sequence of the context of the Charter, which break arose from the fact that certain sections of said Charter, as more particularly set forth in Exhibit 'C' annexed hereto, were not in numerical sequence nor were the sentences in Sections 202, 303 and 402 as appearing in said publications (see Exhibit 'C') in exact conformance with the sections of the proposed Charter. That in the printing, publishing, and circulating of said proposed Charter on the 16th, 22nd, 23rd, 24th, and 25th days of September, 1948 the wording thereof was in exact conformance of the Charter as prepared and proposed by the duly elected and qualified Board of fifteen Freeholders and as submitted and filed thereby.

'That attached hereto, marked Exhibit 'B', and made a part hereof by this express reference and incorporation is a newspaper publication of said proposed Charter in the San Jose Mercury Herald as it was published on the 16th, 22nd, 23rd, 24th and 25th days of September, 1948.

'That attached hereto, marked Exhibit 'C', and made a part hereof by this express reference and incorporation is a newspaper publication of said proposed Charter in the San Jose Mercury Herald as it was published on the 17th, 18th, 19th, 20th and 21st days of September, 1948.' Stats.1949, ch. 156, p. 3296. It is that defect in publication which it is claimed voided the charter. It must first be determined, however, to what extent, if at all, a court will examine the regularity of charter adoption proceedings occurring before the passage of the resolution by the legislature approving the charter.

It has been held that when an act of the legislature is valid on its face, properly enrolled, authenticated and filed, it is conclusively presumed that all of the steps required for its passage have been properly taken; even the journal of the legislature is not available to impeach it. Spaulding v. Desmond, 188 Cal. 783, 207 P. 896; Sherman v. Story, 30 Cal. 253, overruling Fowler v. Peirce, 2 Cal. 165; County of Yolo v. Colgan, 132 Cal. 265, 64 P. 403; People v. Burt, 43 Cal. 560; People v. Harlan, 133 Cal. 16, 65 P. 9; Parkinson v. Johnson, 160 Cal. 756, 117 P. 1057; Taylor v. Cole, 201 Cal. 327, 257 P. 40; People v. Camp, 42 Cal.App. 411, 183 P. 845; People v. Peete, 54 Cal.App. 333, 202 P. 51; See Oroville & V. R. R. Co. v. Supervisors Plumas County, 37 Cal. 354; Harpending v. Haight, 39 Cal. 189; Sacramento Paving Co. v. Anderson, 1 Cal.App. 672, 82 P. 1069; Santa Clara County v. Superior Court, supra, 33 Cal.2d 552, 203 P.2d 1.

That rule has been criticized. 1 Stanford L.Rev., 428; Sutherland, Statutory Construction (3rd ed.) §§ 1403-6. Elsewhere the authorities are split, some holding that they will look behind the statute. It has been said: 'Where the failure of constitutional compliance in the enactment of statutes is not discoverable from the face of the act itself but may be demonstrated by recourse to the legislative journals, debates, committee reports, or papers of the governor, courts have used several conflicting theories with which to dispose of the issue. They have held: (1) that the enrolled bill is conclusive and like the sheriff's return cannot be attacked; (2) that the enrolled bill is prima facie correct and only in case the legislative journal shows affirmative contradiction of the constitutional requirement will the bill be held invalid; (3) that although the enrolled bill is prima facie correct, evidence from the journals or other extrinsic sources is admissible to strike the bill down; (4) that the legislative journal is conclusive and the enrolled bill is valid only if it accords with the recital in the journal and the constitutional procedure. * * * At the present time the tendency seems to be toward the abandonment of the conclusive presumption rule and the adoption of the third rule leaving only a prima facie presumption of validity which may be attacked by any authoritative source of information.' Sutherland, Statutory Construction (3rd ed.) § 1402. Starting with the premise that the approval or rejection of a county or city home rule charter by the legislature and the steps taken by the local authorities, including the vote of the people, are a part of the process of enacting a legislative act, Santa, Clara County v. Superior Court, supra, 33 Cal.2d 552, 203 P.2d 1; Taylor v. Cole, supra, 201 Cal. 327, 257 P. 40; Spaulding v. Desmond, supra, 188 Cal. 783, 207 P. 896, this court has extended the rule to include such steps and held that it will not look beyond the resolution of the legislature approving the charter. Taylor v. Cole, supra; Spaulding v. Deamond, supra; People v. City of San Buenaventura, 213 Cal. 637, 3 P.2d 3. And in reaching that result, Taylor v. Cole, supra, overruled People v. Gunn, 85 Cal. 238, 24 P. 718. In the Gunn case, it was claimed that the charter had not received sufficient votes and other constitutional provisions had not been followed. The court held that the legislature does not exercise legislative or 'law making' power in approving or rejecting a charter, and hence cannot determine the regularity of the proceedings by the local authorities for the adoption of the charter; that such is a court function. Following the Taylor case is People v. City of San Buenaventura, supra, 213 Cal. 637, 3 P.2d 3, 4, where the defect was a failure to advertise the charter. The Taylor case was approved in its holding that '* * * a legislative resolution approving a freeholders' charter, together with the charter which it establishes is the law of the state, and is conclusive as to the facts so recited in the preamble.' But the court concluded by stating: 'As it appears on the face of the Assembly concurrent resolution approving the charter that one of the essential steps required by the Constitution to be taken for the adoption and approval by the voters of a municipal freeholders' charter was not taken in this instance, we are compelled to hold that the freeholders' charter of San Buenaventura, submitted to the electors of the city, not having been legally adopted, its purported approval by the Legislature amounts to nothing.' (Emphasis added.) People v. City of San Buenaventura, 213 Cal. 637, 640, 642, 3 P.2d 3, 5. Thus the holding is that if the irregularity in the proceedings by the local authorities appears on he face of the legislative resolution, the approval by the legislature is not conclusive, as it would be, if it was not revealed by the resolution. The San Buenaventura case was followed by Butters v. Board of Supervisors of Imperial County, 217 Cal. 515, 19 P.2d 983 and Ault v. Council of City of San Rafael, 17 Cal.2d 415, 110 P.2d 379, where the court gave consideration to the regularity of the proceedings by local authorities before the charter was submitted to the legislature, but did not discuss the question of the jurisdiction of the legislature to determine that question by approving or rejecting the charter, a problem later herein discussed. The distinction made in the San Buenaventura case (between a defect in the local proceedings appearing on the face of the resolution and one that did not) was approved by this court in Santa Clara County v. Superior Court, supra, 33 Cal.2d 552, 203 P.2d 1, the latest case on the subject, for there it was concluded that the proceedings taken by the local authorities were a part of the legislative process and we there approved Taylor v. Cole, supra, 201 Cal. 327, 257 P. 40, saying that the constitution imposed upon the legislature the duty of seeing that the steps taken by the local authorities complied with the constitution when it authorized the legislature to approve or reject the charter in toto. ...