People ex rel. Averna v. City of Palm Springs

• Decision Date: 24 October 1958
• Parties: The PEOPLE of the State of California ex rel. John AVERNA et al., Appellant, v. CITY OF PALM SPRINGS, Respondent. L. A. 24796.
• Court: California Supreme Court

Page 4

331 P.2d 4

51 Cal.2d 38

The PEOPLE of the State of California ex rel. John AVERNA et al., Appellant, v. CITY OF PALM SPRINGS, Respondent.

L. A. 24796.

Supreme Court of California, In Bank.

Oct. 24, 1958.

Edmund G. Brown, Atty. Gen., Eugene B. Jacobs and Delbert E. Wong, Deputy Attys. Gen., Joseph A. Lazaroni and E. W. Cunningham, Los Angeles, for appellant.

Jerome J. Bunker, City Atty., Palm Springs, for respondent.

SPENCE, Justice.

This is a proceeding in quo warranto to test the validity of the annexation of certain 'uninhabited' territory to the city of Palm Springs. Plaintiff's complaint, which charged the invalidity both generally and specifically, was found insufficient by the trial court, and judgment was entered in favor of defendant after a demurrer was sustained without leave to amend.

Quo warranto lies to attack a completed annexation proceeding. American Distilling Co. v. City Council of City of Sausalito, 34 Cal.2d 660, 667, 213 P.2d 704, 18 A.L.R.2d 1247. Under existing law, the complaint is held sufficient if it charges the usurpation of the franchise in general terms. People ex rel. Skelton v. City of Los Angeles, 133 Cal. 338, 340-341, 65 P. 749. But if the pleader sets out the specific facts relied on to show the usurpation, he assumes the burden of allegation and proof, and the complaint is subject to general demurrer if those facts do not state a cause of action. People ex rel. Skelton v. City of Los Angeles, supra, 133 Cal. 338, 341, 65 P. 749. The attorney-general has urged that we revise the existing rules and require specific allegations in all cases where the action is brought on relation of private parties. We have determined, however, that this request should more properly be addressed to the Legislature, and that the rules heretofore established should govern these proceedings. And since plaintiff does not contend that any additional grounds are available to challenge this annexation, we have concluded that the trial court did not err in denying leave to amend, and that plaintiff's cause must stand or fall on the basis of the specific grounds alleged.

The annexation was conducted pursuant to the 'Annexation of Uninhabited Territory Act of 1939.' Stats.1939, ch. 297, p. 1567; now Gov.Code, §§ 35300-35326. That act permits a city to annex 'contiguous uninhabited territory' (Gov.Code, § 35302) in proceedings initiated by resolution of the city's legislative body. Gov.Code, § 35310. The resolution must state the legislative body's reasons for desiring annexation (Gov.Code, § 355310), describe the boundaries of the territory to be annexed, designate it by an appropriate name, and contain notice of the time and place the legislative body will hear protests against the annexation. Gov.Code, § 35306. Copies of the resolution must be published twice in both city and county newspapers of general circulation, and written notice is to be mailed to each landowner in the territory at least twenty days before the first public hearing. Gov.Code, § 35311.

Any owner of property within the territory may file written protest at any time before the hour set for hearing objections (Gov.Code, § 35312), and the legislative body must hear and pass upon all protests so made. Gov.Code, § 35313. If the owners of one-half of the value of the territory protest, further proceedings shall not be taken. Gov.Code, § 35313. But if sufficient valid protests are not made, the legislative body must approve or disapprove the annexation, by ordinance. Gov.Code, § 35314. The annexation is complete when a certified copy of the ordinance is transmitted to the secretary of state and filed by him. Gov.Code, §§ 35316, 35318.

Plaintiff commenced this action after the annexation proceedings had been completed. The complaint alleged that the annexation was void because (1) written notice of the annexation proceedings was not given to one owner of land within the territory; (2) the notice and hearing given the other landowners did not satisfy the statutory requirements; (3) protests submitted to the city council deprived it of jurisdiction to annex the territory; and because (4) the annexation is unreasonable; (5) amounts to a fraudulent abuse of the statute; and (6) operates to take property without due process of law.

First: Plaintiff alleges that the Southern Pacific Company, an owner of land in the territory, was not served with written notice of its opportunity to protest the annexation, and contends that this omission deprived the city council of jurisdiction to annex the territory. As previously noted, the statute requires that notice be given by publication and by mail. Gov.Code, § 35311. Plaintiff does not allege that the city failed to mail written notice to all other landowners is the annexed territory not does plaintiff allege that the statutory requirements as to publication of notice were not observed. Under these circumstances, the failure to allege that the Southern Pacific Company did not acquire knowledge of the contents of the published notice, that it did not appear at the hearing, that it desired to protest, or that its protest, if any, was not in fact considered, renders this claim fatally deficient. See De Luca v. Board of Supervisors, of Los Angeles County, 134 Cal.App.2d 606, 609-611, 286 P.2d 395. If it may be said that the language found in In re Central Irrigation District, 117 Cal. 382, 49 P. 354, carries any implication to the contrary, we do not deem it applicable to the situation here. In that case the statute provided for but one form of notice, which was notice by publication, and the published notice was held to be fatally defective. Here there was merely a failure to give notice to a single landowner by one of two specified methods. Furthermore, it should be noted that the decision in the Central Irrigation District case has been strictly limited in its application to its precise facts. See People v. City of Montebello, 192 Cal. 489, 493, 221 P. 207.

Second: Plaintiff claims that none of the landowner were afforded the kind of notice or right of hearing required by the act. This contention is based on the city's refusal to entertain either oral protests or written protests not tendered until after the hearing had commenced. Since the notice of hearing specified that the council would hear and determine 'all written protests filed with the City Council prior to the hour' set for hearing, no complaint can be made of its adequacy if the city was justified in rejecting all protests not submitted in the form and at the time specified.

The statutory language is clear. Section 35312 of the Government Code provides: 'At any time before the hour set for hearing objections, any owner of property within the territory may file written protest * * *.' (Emphasis added.) Plaintiff seeks to give a permissive reading to this section, relying on the word 'may.' But the section means exactly what it says only written protests filed before the hour set for hearing need be considered. The section is permissive only to the extent that no one is required to file a protest. Any other construction would render meaningless the limiting words in the next succeeding section, which requires 'the legislative body (to) hear and pass upon all protests so made.' (Emphasis added.) Gov.Code, § 35313. The language in Foth v. City of Long Beach, 125 Cal.App.2d 520, 528, 270 P.2d 868, is not inconsistent with this position, since the issue in that case was whether certain protests had been prematurely signed.

Third: Plaintiff asserts that even without the oral and tardy written protests, there were sufficient valid protests to bar further proceedings. At the time of the hearing, the applicable code section provided in part: 'If protest is made by the owners of one-half of the value of the territory as shown by the last equalized assessment roll, or if protest is made by public and private owners equal to one-half of the value of the territory proposed to be annexed as determined by the legislative body, further proceedings shall not be taken.' (Emphasis added.) Gov.Code, § 35313. In 1955, after this annexation was completed, the Legislature amended this section by adding, 'As used in this article, 'value of the territory' means the value of the land and improvements thereon.' Stats. 1955, ch. 1948, § 5, p. 3580.

Plaintiff contends that the city erred in its determination that written protests filed prior to the hearing represented less than 'one-half of the value of the territory.' Plaintiff concedes that the city's determination was correct if the city was entitled to consider the value of both land and improvements in determining the sufficiency of protests. But plaintiff contends that before the 1955 amendment, 'value of the territory' meant value of the land exclusive of improvements, and that this definition must govern these proceedings.

Plaintiff points to section 35305 of the Government Code as an indication that land values only are to be considered. That section provides: 'Upon receiving a written petition requesting annexation * * * signed by the owners of not less than one-fourth of the land in the territory by area, and by assessed value * * *, the legislative body shall, without delay, pass a resolution giving notice of the proposed annexation.'

The section does not support plaintiff's position. 'Land' means 'the solid material of the earth' (Civ.Code, § 659), and its value does not include the value of improvements thereon. See Krouser v. County of San Bernardino, 29 Cal.2d 766, 178 P.2d 441. 'Value of the territory' has not been so interpreted. See American Distilling Co. v. City Council of City of Sausalito, supra, 34 Cal.2d 660, 665, 213 P.2d 704, 18 A.L.R.2d 1247.

Both section 35305 and section 35313 were first enacted as part of the 'Annexation of Uninhabited Territory Act of 1939' (Stats.1939, ch. 297, §§ 3, 6, p. 1568) and were added to the Government Code with only minor...