People v. Johnson

• Decision Date: 18 November 1954
• Citation: 129 Cal.App.2d 1,277 P.2d 45
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Vernon JOHNSON, Defendant and Appellant. Civ. 4787.

Page 45

277 P.2d 45

129 Cal.App.2d 1

The PEOPLE of the State of California, Plaintiff and Respondent, v. Vernon JOHNSON, Defendant and Appellant.

Civ. 4787.

District Court of Appeal, Fourth District, California.

Nov. 18, 1954.

Hearing Denied Jan. 12, 1955.

King & Mussell, San Bernardino, for appellants.

Lowell E. Lathrop, Dist. Atty., Edward F. Taylor, Deputy Dist. Atty., San Bernardino, for respondent.

GRIFFIN, Justice.

As the result of an action to enjoin a claimed continuing violation of zoning ordinance number 678, of San Bernardino County, brought by said county on February 16, 1953, in the name of the People of the State of California, against defendant and appellant Vernon Johnson, the trial court, on August 5, 1953, rendered judgment in favor of plaintiff and respondent.

Zoning ordinance number 678 was enacted on July 9, 1951, and became effective on August 8, 1951. It provided a general scheme for zoning the unincorporated area of San Bernardino County to 'promote, protect and secure the public health, safety and general welfare' of said county.

On April 14, 1950, defendant, who was a licensed dealer in hogs and cattle, purchased eight acres of land near Colton for $1,750. A new school house had been erected in the neighborhood, and some of the adjoining land had been opened up for subdivision purposes and homes were built thereon. Defendant claims that at the time he purchased the property he intended to use it for the purpose of temporarily placing thereon cattle and hogs during the interval between purchase and sale of such livestock. He testified that thereafter he constructed a barbed wire fence around it and put in a few 'hog lots' costing about $150, and piped the land for water; that due to road conditions only cattle were kept there, but in February, 1952, hogs were brought to the property. The modus operandi of defendant was to purchase hogs in small lots from surrounding territory, keep them on the property three or four days until he had enough to fill a truck, and they were then carted to the market in Los Angeles.

Ordinance number 678 declares that, in addition to criminal penalties, the keeping and maintenance of more than five hogs in an M-1 (limited manufacturing) district or zone, constitutes a public nuisance. This M-u district was established prior to the time when defendant used the land for the keeping of hogs. Defendant admitted he thereafter kept up to 40 hogs on the property, but claims there were a few days, on occasion, when there were no hogs on the premises. He stated that he intended to continue the same operation of his premises unless restrained from so doing.

After hearing, the trial court issued a peremptory injunction restraining defendant from keeping or maintaining more than five hogs on the premises, and adjudged the condition a public nuisance.

Defendant appealed and contends first, that no cause of action under Code of Civil Procedure, section 731 was alleged or proved, and since a court of equity has no authority to abate a public nuisance except in specific cases where authority has been granted by the legislature, a civil action to enjoin a nuisance in the name of the people must find its sanction in that section; that it is immaterial that the ordinance, by its terms, declares such violations to be public nuisances; that no legislative body can, by its mere assertion, make that a nuisance which is not in fact a nuisance; that the California Constitution limits the power of counties to make and enforce within their limits only such local police, sanitary and other regulations as are not in conflict with general laws; that if a county ordinance purports to extend and enlarge the definition of public nuisances it is to that extent in conflict with the general law; that otherwise the ordinance is an unreasonable and unjustifiable exercise of the police power; and that injunction will not lie to enforce a penal law except in case of nuisances or unfair competition, citing such authority as People v. Robin, 56 Cal.App.2d 885, 133 P.2d 436; People v. Lim, 18 Cal.2d 872, 118 P.2d 472; Kreling v. Superior Court, 18 Cal.2d 884, 118 P.2d 470; Civil Code, secs. 3479 and 3480; People v. Oliver, 86 Cal.App.2d 885, 195 P.2d 926; Civil Code, sec. 3494; Government Code, sec. 26528; Board of Supervisors of Los Angeles v. Simpson, 36 Cal.2d 671, 227 P.2d 14; Laurel Hill Cemetery v. City and County of San Francisco, 152 Cal. 464, 93 P. 70, 27 L.R.A.,N.S., 260; California Constitution, Art. XI, sec. 11; 7 Cal.Jur. p. 534, sec. 102; Jones v. City of Los Angeles, 211 Cal. 304, 295 P. 14; and Civil Code, sec. 3369.

The power of cities and counties to zone is derived from section 11, of Article XI of the California Constitution, which provides:

'Any county * * * may make and enforce within its limits all such local, police, sanitary and other regulations as are not in conflict with general laws.'

Zoning is inherent in the police power, and the concept of comprehensive zoning has been sustained by the Supreme Court of California in Miller v. Board of Public Works, 195 Cal. 477, 234 P. 381, 38 A.L.R. 1479. The police power granted to the counties includes the power to zone. Smith v. Collison, 119 Cal.App. 180, 186, 6 P.2d 277; Acker v. Baldwin, 18 Cal.2d 341, 115 P.2d 455. The Conservation and Planning Act of 1947, Stats.1947, chap. 807, sec. 77, p. 1922, subsequently placed in the Government Code in 1951, Sec. 65090 et seq., authorizes a master plan which may comprise any, all, or any combination of plans specified, including 'Land use plan. * * * an inventory and classification of natural land types and of existing land cover and uses, and comprehensive plans for the most desirable utilization of land.' Sec. 65464. Sections 65300-01 not only authorize planning commissions for counties but direct that they shall be created by ordinance.

It is apparent then, that the ordinance, as enacted under such legislative authority, is a valid exercise of the County's legislative power, as authorized by the section of the Constitution enacted. It follows that a county has power to enact zoning ordinances where its charter expressly confers upon the legislative body all the police powers that are vested in municipalities by the Constitution. Brougher v. Board of Public Works, 205 Cal. 426, 271 P. 487. The police power, as evidenced by zoning regulations, has a much wider scope than the mere suppression of offensive uses of property. It acts not only negatively, but affirmatively, for the promotion of the public welfare. The power to zone is not limited to the protection of established districts. On the contrary, zoning looks not only backward to protect districts already established, but forward to aid in the development of new districts. It is established that the power to zone extends to the regulation of uses of property which do not actually amount to nuisances. 12 Cal.Jur. Ten-Year Supp. p. 142, sec. 2 et seq.

A final arbitrary definition of public nuisances that can be neither modified nor supplemented by further legislation is not intended in Code of Civil Procedure, sec. 731. A city has the power to pass general police regulations to prevent nuisances, and such power is not limited to the suppression of those things which are nuisances per se within the meaning of section 370 of the Penal Code and sections 3479 and 3480 of the Civil Code. In re Mathews, 191 Cal. 35, 214 P. 981. Public nuisances, declared under the Red Light Abatement Act, is one of these exceptions. Board of Supervisors of Los Angeles County v. Simpson, 36 Cal.2d 671, 227 P.2d 14. The general rule is that where the legislature has not enacted statutes specifying that an activity contrary to public policy constitutes a public nuisance which may be enjoined in an action on behalf of the State, the courts will not ordain such jurisdiction for themselves. Monterey Club v. Superior Court, 48 Cal.App.2d 131, 119 P.2d 349. In the instant case the County of San Bernardino is a chartered county and its charter was approved by legislative act. Stats.1913, chap. 33, p. 1652. It gave to the officers of that county such 'powers and duties as are or shall be provided for in this charter.'

In the case of In re Mathews, 191 Cal. 35, 214 P. 981, 983, where a city ordinance declared it to be a nuisance and unlawful for any person to keep or maintain any goat within a described area in the city, the same contention was made, i. e., that the ordinance conflicted with the state law. It was contended that by section 370 of the Penal Code and sections 3479 and 3480 of the Civil Code certain things had been declared public nuisances; that a municipality is without authority to determine that a specific act is within the code definitions and that the city, by providing regulations on the subject of keeping goats, recognized that when so kept they are not a nuisance, and that by the ordinance they attempted to bring the keeping of goats within the definition of a nuisance. It was there said that a city clearly has power to pass general police regulations to prevent nuisances, and such power is not limited to the suppression of those things which are nuisances per se within the meaning of the code sections, citing Odd Fellows' Cemetery Ass'n v. City & County of San Francisco, 140 Cal. 226, 231, 73 P. 987, where it is said:

'Whenever a thing or act is of such a nature that it may become a nuisance, or may be injurious to the public health, if not suppressed or regulated, the legislative body may, in the exercise of its police powers, make and enforce ordinances to regulate or prohibit such act or thing, although it may never have been offensive or injurious in the past.'

Also cited in the Mathews case was Ex parte Shrader, 33 Cal. 279, 284, where it is said:

"The power to regulate or prohibit conferred upon the board of supervisors not only includes nuisances, but extends to everything 'expedient for the preservation of...