Walker v. City of Salinas

• Decision Date: 30 March 1976
• Citation: 56 Cal.App.3d 711,128 Cal.Rptr. 832
• Court: California Court of Appeals Court of Appeals
• Parties: Jan Alton WALKER et al., Plaintiffs and Appellants, v. CITY OF SALINAS, a Municipal Corporation, et al., Defendants and Respondents. Civ. 36515.

Page 832

128 Cal.Rptr. 832

56 Cal.App.3d 711

Jan Alton WALKER et al., Plaintiffs and Appellants, v. CITY OF SALINAS, a Municipal Corporation, et al., Defendants and Respondents.

Civ. 36515.

Court of Appeal, First District, Division 1, California.

March 30, 1976.

Hearing Denied May 26, 1976.

Frank H. James, Frank J. Noll, Salinas, for plaintiffs and appellants.

Warren J. Lynch, City Atty., Salinas, for defendants and respondents.

SIMS, Associate Justice.

Plaintiffs have appealed from a judgment which denied them any relief on their petition for writ of mandate in which they sought a peremptory writ compelling the city clerk to examine and certify a referendum petition, and the city council to either rescind the ordinance, the subject of the petition, or submit it to a vote of the electors of the city. The ordinance in question is entitled 'An Ordinance of the City of Salinas, State of California, Approving and Adopting the Revitalization Plan for the Central City Project Area.' The ordinance on its face indicates that it was adopted under the provisions of the Community Redevelopment Law (Health & Saf.Code, §§ 33000--33738), specifically those sections governing the procedure for adoption of redevelopment plans by the legislative body. (Id., §§ 33360--33376, particularly §§ 33365--33368.) The ordinance was adopted on July 8, 1974, and three days later by emergency legislation section 4051a was added to the Elections Code prescribing the requirements for affidavits attached to referendum petitions.

The issues framed by the parties on this appeal are whether the ordinance in question was subject to referendum proceedings, and whether the referendum petitions were in the form required by law. Each of these issues is resolved adversely to petitioners. The judgment must be affirmed.

I

Section 1 of article IV of the California Constitution provides: 'The legislative power of this State is vested in the California Legislature which consists of the Senate and Assembly, but the people reserve to themselves the powers of initiative and referendum.'

Section 25 of the same article reads: 'Initiative and referendum powers may be exercised by the electors of each city or county under procedures that the Legislature shall provide. This section does not affect a city having a charter.' Similarly section 4057 of the Elections Code provides in part: 'This chapter does not apply to cities having a charter adopted and ratified under the provisions of Section 8 of Article XI of the Constitution, and having in such charter any provision for the direct initiation of ordinances by the voters; . . .'

Salinas is a chartered city. (Stats.1919, p. 1398, as amended, Deerings, General Laws Act 6771.)

Section 88 of the charter provided and provides: 'POWERS RESERVED TO THE PEOPLE. Sec. 88. The people reserve to themselves the power to adopt or reject ordinances at the polls, independent of the council.' (Stats.1919, p. 1417.)

Prior to 1957 the charter contained detailed provisions for the exercise of the initiative, the referendum and recall. In that year those provisions were repealed and section 89 was amended to read:

'The Initiative, Referendum, and Recall.

'Sec. 89. Except insofar as is otherwise provided by ordinances or resolutions hereafter enacted, the provisions of the Elections Code of the State of California, as the same now exist or may hereafter be amended, governing the initiative, the referendum, and the recall, in general law cities, shall apply to the use thereof in the city insofar as the same are not in conflict with this Charter.' (Stats.1957, p. 4820.)

The charter also always has provided: 'APPLICATION OF GENERAL LAWS. Sec. 107. All general laws of the state applicable to municipal corporations, now or hereafter enacted, and which are not in conflict with the provisions of this charter, or with ordinances, or resolutions hereby continued in force, or hereafter enacted, shall be applicable to the city.' (Stats.1919, p. 1422.)

It thus appears that the power of referendum under the charter is now governed by the same procedures and principles as are applicable under the general law set forth in the Constitution and in the Elections Code as interpreted by the courts. In Hopping v. Council of City of Richmond (1915) 170 Cal. 605, 150 P. 977, the court opined: 'The declaration of the constitution that its provisions do not affect or limit the referendum power reserved to the people of any city by its charter, does not limit the constitutional reservation nor enlarge those reserved by such charter. The two reservations are thereby made independent of each other. The constitutional reservation goes to the full extent expressed by its language. If the charter differs from the constitution in any respect it does not thereby diminish the power reserved by the constitution. On the other hand, if the powers reserved by the charter exceed those reserved in the constitution the effect of the charter would be to give to the people the additional powers there described. (Citation.)' (170 Cal. at pp. 610--611, 150 P. at p. 979. See also Hunt v. Mayer & Council of Riverside (1948) 31 Cal.2d 619, 622--623, 191 P.2d 426.)

In Hopping, the court recognized the uniformly proclaimed, but variously applied, principle that the power of referendum applies only to legislative acts. It stated: 'We think the provisions of the referendum should be held applicable to all ordinances and resolutions which constitute an exercise of legislative power. The public discussion which led to the adoption of the referendum shows that it was directed at supposed evils of legislation alone. To allow it to be invoked to annul or delay executive conduct would destroy the efficiency necessary to the successful administration of the business affairs of a city. In many cases it would entirely prevent the exercise of the executive power necessary to carry out the acts determined upon by the legislative department. In the absence of a very clear declaration to the contrary, it must be presumed that the power of referendum was intended to apply solely to the legislative powers of the city. (Citation.) No such express declaration appears here and we, therefore, hold that the referendum powers given to the people of Richmond by its charter apply only to legislative acts of the council. The name given it is of no consequence. (Citation.) If the council should, either by resolution or ordinance, do something purely executive in character, unmixed with any exercise of legislative power, the provisions of this section should be held inapplicable thereto. But if a legislative act is thereby done, the referendum may be invoked whether the measure is denominated an ordinance or resolution.' (Id., 170 Cal. p. 611, 150 P. p. 979. See also Wheelright v. County of Marin (1970) 2 Cal.3d 448, 457, 85 Cal.Rptr. 809, 467 P.2d 537 (app. dismissed 400 U.S. 807, 91 S.Ct. 65, 27 L.Ed.2d 37); Johnston v. City of Claremont (1958) 49 Cal.2d 826, 834, 323 P.2d 71; Housing Authority v. Superior Court (1950) 35 Cal.2d 550, 557, 219 P.2d 457; Lincoln Property Co. No. 41, Inc. v. Law (1975) 45 Cal.App.3d 230, 234, 119 Cal.Rptr. 292; Valentine v. Town of Ross (1974) 39 Cal.App.3d 954, 957, 114 Cal.Rptr. 678; Hughes v. City of Lincoln (1965) 232 Cal.App.2d 741, 744, 43 Cal.Rptr. 306; O'Loane v. O'Rourke (1965) 231 Cal.App.2d 774, 783--784, 42 Cal.Rptr. 283; Reagan v. City of Sausalito (1962) 210 Cal.App.2d 618, 621, 26 Cal.Rptr. 775; Martin v. Smith (1960) 184 Cal.App.2d 571, 575, 7 Cal.Rptr. 725; Andrews v. City of San Bernardino (1959) 175 Cal.App.2d 459, 461, 346 P.2d 457; McKevitt v. City of Sacramento (1921) 55 Cal.App. 117, 124, 203 P. 132, and Limitations on Initiative and Referendum (1951) 3 Stan.L.Rev. 497, 502--504.)

It is recognized 'that referendum provisions of the Constitution and of charters and statutes should, as a general rule, be liberally construed in favor of the reserved power.' (Hunt v. Mayor & Council of Riverside, supra, 31 Cal.2d 619, 628, 191 P.2d 426, 431, citations omitted. See also Lincoln Property Co. No. 41, Inc. v. Law, supra, 45 Cal.App.3d 230, 233--234, 119 Cal.Rptr. 292, and O'Loane v. O'Rourke, supra, 231 Cal.App.2d 774, 783, 42 Cal.Rptr. 283.) Nevertheless the courts have hewn a path dividing administrative and legislative matters. In McKevitt v. City of Sacramento, supra, the dividing line was described as follows: 'Acts which are to be deemed as acts of administration, and classed among those governmental powers properly assigned to the executive department, are those which are necessary to be done to carry out legislative policies and purposes already declared by the legislative body, or such as are devolved upon it by the organic law of its existance.' (55 Cal.App. at p. 124, 203 P. at p. 136. See also Hughes v. City of Lincoln, supra, 232 Cal.App.2d 741, 744--745, 43 Cal.Rptr. 306; Valentine v. Town of Ross, supra, 39 Cal.App.3d 954, 957--958, 114 Cal.Rptr. 678; O'Loane v. O'Rourke, supra, 231 Cal.App.2d 774, 784, 42 Cal.Rptr. 283; Reagan v. City of Sausalito, supra, 210 Cal.App.2d 618, 621--622, 26 Cal.Rptr. 775, and Martin v. Smith, supra, 184 Cal.App.2d 571, 575, 7 Cal.Rptr. 725.)

In Housing Authority v. Superior Court, supra, the court examined the question of whether action by a local governmental unit under the Housing Authority Law was subject to referendum. It said, 'But assuming that the charter of Eureka goes that far (to permit a referendum on any act of the city council), its provisions have been superseded by the more recent state legislation which extends the benefits of the federal housing act to the cities and counties of this state. As held in the Kleiber case, supra (Kleiber v. City & County of San Francisco (1941) 18 Cal.2d 718, 725, 117 P.2d 657), the actions of local governing bodies under the statewide housing laws '. . . are administrative only for the purpose of giving statewide effect to declared...