Ratkovich v. City of San Bruno

• Decision Date: 26 October 1966
• Citation: 54 Cal.Rptr. 333,245 Cal.App.2d 870
• Court: California Court of Appeals Court of Appeals
• Parties: Nicholas RATKOVICH, Plaintiff, Cross-Defendant and Respondent, v. CITY OF SAN BRUNO, Francis Vitali and Carl Hultberg, Defendants, Cross-Complainants and Appellants. Civ. 22555.

Page 333

54 Cal.Rptr. 333

245 Cal.App.2d 870

Nicholas RATKOVICH, Plaintiff, Cross-Defendant and Respondent, v. CITY OF SAN BRUNO, Francis Vitali and Carl Hultberg, Defendants, Cross-Complainants and Appellants.

Civ. 22555.

District Court of Appeal, First District,

Division 1, California.

Oct. 26, 1966.

Rehearing Denied Nov. 14, 1966.

Hearing Denied Dec. 21, 1966.

Joseph A. Galligan, City Attorney, San Bruno, Richard G. Logan, Oakland, for appellants.

Thomas L. Bocci, Harold W. Martin, So. San Francisco, for respondent.

SULLIVAN, Presiding Justice.

In this action to recover monies paid under municipal ordinances regulating trucking on city streets, defendant and cross-complainant City of San Bruno (City) and defendant city officials appeal from a judgment ¹ entered against them, after a nonjury trial, awarding plaintiff the sum of $33,592.57 with interest and denying the City all recovery on its cross-complaint. ²

Plaintiff is a licensed contractor doing business under the name of Ratkovich Construction Company. In June 1960, he entered into a contract with the Public Utilities Commission of the City and County of San Francisco to haul dry fill to the San Francisco International Airport (Airport) for the extension of a runway and the construction of a maintenance base area. Under the contract, the work in connection with the runway had to be completed within 160 days subject to a penalty of $100 per day for late performance and the work for the maintenance base area had to be completed within 330 days subject to a similar penalty of $50 per day. Pursuant to the contract plaintiff hauled fill from locations both inside and outside the City limits over the City's streets to the Airport. The parties stipulated that this amounted to 3,016,100.2 tons over the period from July 1960 to November 1961.

Before plaintiff entered into the above hauling contract defendant City had enacted as part of the San Bruno City Code certain ordinances regulating trucking on its streets. These in substance provide that with the exception of certain specified streets to be marked as truck routes, the use, operation or maintenance upon all remaining City streets of any motor vehicle or truck of a gross weight of 27,000 pounds or over is unlawful. Nevertheless vehicles hauling materials exceeding such gross maximum weight limits may be permitted along streets from which they are excluded upon the filing with the city clerk of an application in the form prescribed by the code, together with a minimum filing fee of $35 'to cover the cost of the city's investigation of such application.' ³ The city manager shall make or have made an investigation of the facts stated in the application and within seven days of the date of its filing 'shall either grant a permit with or without modification, or deny the same in whole or in part.' ⁴

Both section 16.72 ⁵ and section 16.74 ⁶ of the City's code provide for the payment by the permittee of two cents (2$) per ton for the privilege of using San Bruno Avenue.

Shortly before plaintiff started hauling under the contract he was told by an engineer at the Airport that he would have to make his own arrangements with defendant City to haul over its streets. He then consulted the city clerk who advised him of the necessity of a permit and of a fee of two cents (2$) per ton. When plaintiff protested that as a licensed contractor he had the right to haul he was told that unless he received a permit he would be subject to arrest. While plaintiff testified on direct examination that he had not considered this two cents a ton charge in computing his bid upon which the contract was awarded and that he did not learn of the existence of the charge until after the contract was awarded, he admitted under cross-examination that he was aware of state regulations fixing weight limitations and also of local ordinances to the same effect. Plaintiff further testified that he felt it necessary to select the route over San Bruno Avenue because it was the shortest and most direct route and that in view of the time limitations for the performance of his contract, he 'had no alternative' but to apply for a permit. It was granted on July 19, 1960.

Plaintiff thereupon carried out his hauling operations to the extent already indicated. He used 'double-bottomed dumps,' that is a tractor pulling two trailers, each set of trailers holding about 25 or 26 tons of fill, making the gross weight of the entire vehicle 75,000 to 80,000 pounds. Almost every load comprising the 3,016,100.2 tons of fill was hauled down San Bruno Avenue. Plaintiff testified that at the time he applied for the permit, he did not know that he could haul to the Airport by an alternate route along Junipero Serra Boulevard to Sneath Lane to El Camino Real ⁷ and then to Spruce Street and through South San Francisco to the Bayshore Highway, nor was he so informed by any official of defendant City; he further stated that during the time he was hauling the fill he did not know of such alternate route.

Plaintiff paid the two cents per ton charge for ten months until May 1961 when he refused to make further payments although he continued his hauling operations. The parties agree that payments made by him total $33,592.57. On August 24, 1961 plaintiff commenced the present action to recover the monies paid to the City together with punitive damages and in addition to secure a judgment declaring all documents pertaining to the permits applied for by plaintiff null and void and restraining defendants from interfering with plaintiff's hauling operations. ⁸ Defendant City cross-complained for $32,524.05 as additional monies due under the ordinances. ⁹ As we have said, the court below rendered judgment in plaintiff's favor for $33,592.27, the total amount paid by him to the City, and denied the City all recovery on its cross-complaint.

The bases of the court's decision as gleaned from its findings of fact and conclusions of law and from its memorandum opinion may be summarized as follows: Plaintiff could not claim the exemption from the weight limitations of the ordinance provided by Vehicle Code section 35704 ¹⁰ in respect to vehicles used in the construction of a public utility, since the Airport was a public Enterprise and not a public Utility. However the charges made by the City under the ordinances were excessively over the amount necessary to indemnify it for any damages. Sections 16.72 and 16.74 ¹¹ are illegal and in contravention of public policy in that (a) they are not regulatory in nature but for the primary purpose of raising revenue; ¹² (b) the state has preempted the field of raising revenue; (c) they constitute an improper exercise of the police powers and are not authorized either by constitutional or statutory provision. While defendants did not act fraudulently or deceitfully, plaintiff paid the charges to the City under duress in that defendant represented to him that the permit was mandatory and that he could not use San Bruno Avenue unless he paid the specified charges.

The City's ordinances here involved were enacted pursuant to former section 713 now section 35701 of the Vehicle Code. ¹³ Said section provides in pertinent part: '(a) Any city may by ordinance prohibit the use of a street to be described in the ordinance by any commercial vehicle or by any vehicle exceeding a maximum gross weight limit to be specified in the ordinance, * * *' The grant to cities of authority to legislate in this field is therefore clear. (McCammon v. City of Redwood City (1957) 149 Cal.App.2d 421, 424, 308 P.2d 831; Neary v. Town of Los Altos Hills (1959) 172 Cal.App.2d 721, 726, 343 P.2d 155; Skyline Materials, Inc. v. City of Belmont (1961) 198 Cal.App.2d 449, 453--454, 18 Cal.Rptr. 95.) The crucial question confronting us is whether those portions of the ordinances struck down by the trial court which provide for the payment of two cents per ton for each ton hauled on San Bruno Avenue are a valid exercise of the police power within the compass of such legislative grant. Defendants contend before us (1) that plaintiff failed to meet the burden of proof which the law casts upon a person attacking the validity of a legislative enactment; and (2) in any event the court wrongfully excluded certain defense testimony on the issue of damages.

We said in Thain v. City of Palo Alto (1962) 207 Cal.App.2d 173, 186, 24 Cal.Rptr. 515, 522: 'Where it is urged that a municipal ordinance does not constitute a proper exercise of the police power, the inquiry of the court is limited to determining (1) whether the object of the ordinance is one for which the police power may be properly invoked and, if so, (2) whether the ordinance bears a reasonable and substantial relation to the object sought to be attained.' (In accord: Silver v. City of Los Angeles (1963) 217 Cal.App.2d 134, 139, 31 Cal.Rptr. 545; Lynch Meats of Oakland, Inc. v. City of Oakland (1961) 196 Cal.App.2d 104, 107, 16 Cal.Rptr. 302; cf. Allied Properties v. Dept. of Alcoholic Beverage Control (1959) 53 Cal.2d 141, 146, 346 P.2d 737.) In the exercise of its police power a legislative body is vested with a broad discretion to determine not only what the public interests require but what measures are necessary for the protection of such interests. (In re Miller (1912) 162 Cal. 687, 693, 124 P. 427; Miller v. Board of Public Works (1925) 195 Cal. 477, 490, 234 P. 381, 38 A.L.R. 1479; Justesen's Food Stores, Inc. v. City of Tulare (1941) 43 Cal.App.2d 616, 621, 111 P.2d 424; Thain v. City of Palo Alto, supra, 207 Cal.App.2d at p. 187, 24 Cal.Rptr. 515.) Every intendment is to be indulged in by the courts in favor of the validity of its exercise. (In re Miller, supra, 162 Cal. at pp. 695--696, 124 P. 427; Jardine v. City of Pasadena (1926) 199 Cal. 64, 72, 248 P. 225, 48 A.L.R. 509; Miller v. Board of Public Works, supra; Wilkins v. City of San Bernardino (1946) 29 Cal.2d 332, 338--339, 175 P.2d 542; ...