City of El Monte v. City of Industry
City of El Monte v. City of Industry
Opinion of the Court
This appeal involves two separate matters which were consolidated for the purpose of trial. In each, a writ of mandate was sought to compel the termination of a certain annexation proceeding relating to uninhabited territory. (See Gov. Code, § 35303.) Land involved in each attempted annexation overlapped land included in the other. The pertinent facts were embodied in a written stipulation.
The city of El Monte attempts to avoid such determination by recourse to the First Validating Act of 1959. (Stats. 1959, ch. 12, p. 1857.) But in section 6, subdivision (c) thereof it is stated that the provisions of the act " shall not operate to confirm, validate, or legalize any act, proceeding, or other matter the legality of which is being contested or inquired into in any legal proceeding now pending and undetermined or which may be pending or undetermined during the period
A more difficult problem is presented by the other annexation proceeding herein involved which shall be designated Industry Annexation 36. On November 26, 1958, the City Council of the City of Industry adopted a resolution (No. 112) instituting proceedings for the annexation of certain uninhabited territory. Under that resolution, a hearing was set for January 22, 1959, at 8 p. m. for the purpose of hearing objections to the proposed annexation. Such resolution provided that any protest “must be in writing, [and] may be filed at any time before the hour set for hearing objections to the proposed annexation . . . ,”
There was thus presented to the superior court the question of whether timely protests had been filed which precluded the further pursuit of the annexation proceedings. That court determined that no protests against the annexation were filed
In People v. City of Palm Springs, 51 Cal.2d 38 [331 P.2d 4], the Supreme Court succinctly stated the statutory law with respect to such an annexation. It said, at pages 41-42: “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, § 35310), 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[
It is thus clear that, in resolving the question presented, it is necessary to interpret the meaning of the language used in the first sentence of section 35312 of the Government Code.
The words “at any time before the hour set for hearing objections” as used in section 35312 and in the resolution of the City Council of the City of Industry would ordinarily be understood by persons to whom they were addressed as meaning that protests would be timely made if presented to the city council at any moment before the time of the hearing with respect to the matter.
We turn to the question whether, even if such written protests could be filed up to the hour of the hearing, there was a lack of timely filing in the present ease because no official, whether designedly or otherwise, made his appearance until after 8 p. in., the time set for the hearing of objections to the annexation. Certainly, any citizen could and would reasonably assume that some duly authorized official or officials would be present within a reasonable time prior to the hour of the council meeting to take care of any matters preliminary thereto just as an attorney would expect a clerk to be in a courtroom for kindred purposes before the hour of the opening of court. Failure to perform such an obvious duty on the part of the city cannot operate to dissolve rights of property owners and to avoid the statutory safeguards established in annexation proceedings. As aptly stated in Heller v. City Coucil of Seal Beach, supra, 157 Cal.App.2d 441, at pages 449-450: “In our opinion the Legislature carefully designed a procedure whereby the rights of private property owners and the public are protected in their right to protest annexation proceedings. Cities have been given great powers in the matter of annexations and with that power goes an equal responsi
“Laws are made for the practical governance of men and it is axiomatic that that construction of a statute which appears to be reasonable is to be preferred.” (Kashevaroff v. Webb, 73 Cal.App.2d 177, 183 [166 P.2d 306].) As stated in California Employment Stabilization Com. v. Municipal Court, 62 Cal.App.2d 781 [145 P.2d 361], at page 785: “The provisions of the Constitution, or of a statute, should receive a practical, rather than a technical, construction [citation] ; one leading to a wise policy rather than of ‘mischief or absurdity.’ ” We cannot avoid the conclusion that the acts of the protestants satisfied the requirements of the law. Accordingly, since the protests were sufficient, the city council could only sustain them and terminate the annexation proceedings. (American Distilling Co. v. City Council of Sausalito, supra, 34 Cal.2d 660, 665.)
One set of findings of fact was filed and a single judgment was entered herein. Insofar as it relates to El Monte Annexation 134, the judgment is affirmed. Insofar as it relates to Industry Annexation 36, the judgment is reversed and the matter is remanded to the superior court with directions to make findings of fact and to enter judgment with respect to Industry Annexation 36 in conformity with this opinion; such judgment shall order that a peremptory writ of mandate issue commanding the respondents in the proceeding involving that annexation to terminate all proceedings relating to Industry Annexation 36 and to refrain from certifying the ordinance with respect thereto or transmitting a certified copy thereof to the Secretary of State of the State of California. Each party shall bear his or its own costs on appeal.
Vallée, Acting P. J., concurred.
Section 35302 is as follows: “The boundaries of a city may be altered and contiguous uninhabited territory annexed to, and incorporated within it, pursuant to this article. ”
Section 35002.5 (made applicable to such proceeding by § 35301) is in. part as follows: “Territory shall not be deemed contiguous as the word ‘contiguous’ is used in this chapter if the only contiguity is based on a strip of land over 300 feet long and less than 200 feet wide, such width to be exclusive of highways. ’ ’
Section 35304.5 is in part as follows: “Notwithstanding the provisions of Section 35002.5, territory consisting of property abutting on a street, highway, or road and such street, highway, or road to the extent that it abuts such property together with any street, highway, or road which connects such territory to the city may be annexed to a city pursuant to this article . . . provided, that if any portion of such territory or street, highway or road is situated within three miles of the boundaries of any other city the consent of the legislative body of such other city shall first be obtained.’’
The petition for writ of mandate with respect to Industry Annexation 36, which attempted annexation is hereafter discussed, was filed in the superior court on March 23, 1959, on which date an alternative writ of mandate issued.
Section 35312 of the Government Code is in part as follows: “At any time before the hour set for hearing objections, any owner of property within the territory may file written protest against the annexation. ’ ’
The finding was: “No written protests against the annexation of said territory to the City of Industry were filed with the City of Industry, the City Clerk, or any officer of said eity before said hour set for hearing objections. ’ ’
In 1955, section 35313 was amended by the addition of the words, “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.) In People v. City of Palm Springs, supra, 51 Cal.2d 38, at page 45, the court said: “We therefore conclude that the 1955 amendment was merely declaratory of existing law. ...”
It is interesting to note that this is apparently the impression made upon the court in Heller v. City Council of Seal Beach, 157 Cal.App.2d 441 [321 P.2d 97], although the question was not before the court, because at page 442 it is said that the city council “set 7:30 o’clock p. m., February 29, 1956, as the deadline for the filing of protests against the proposed annexation, pursuant to section 35313, Government Code.”
It is stated in the recent case of McMillen v. City of El Monte, 180 Cal.App.2d 394 [4 Cal.Rptr. 750], at page 401: “In the present case, in order for the majority protests to be effective in compelling a termination of the annexation proceedings, the protests should have been in writing and filed with the city clerk before the hour set for hearing objections.” However, the statement with respect to filing protests with the city clerk was dictum because in that case the only protests were oral and not written. As the court said in Cox v. Tyrone Power Enterprises, 49 Cal.App.2d 383, at page 397 [121 P.2d 829]: “Particularly is it true that incidental statements of conclusions not necessary to the decision are not to be regarded as authority. ’ ’
Examples from the Street and Highways Code will suffice. Thus in section 2856 is the following: “However, all written protests shall be filed with the clerk of the legislative body at or before the time fixed for the hearing. ...” In section 5220 is found the following language: “At any time not later than the hour set for hearing objections to the proposed work, any owner of property liable to be assessed for the work' may make written protest. . . . Such protest must be in writing and , . . be delivered to the clerk. ...”
If respondent’s position is followed to its logical conclusion, even if the clerk had been present a few minutes before the time of the meeting in the present case he would have had no authority to accept the protests since it was after his usual office hours.
Concurring in Part
I concur in the judgment insofar as it relates to El Monte Annexation 134, but dissent from that part which reverses the judgment of the trial court respecting Industry Annexation 36 and imposes a death sentence upon that annexation.
By the statutory law of this state the power is given the owners of one-half of the value of property within uninhabited territory, sought to be annexed to a city, to thwart the will
I do not read the majority opinion as holding that, under the facts of this case, a written protest was indeed filed before 8 p.m. Certainly there was none “filed,” before that hour within the meaning of the word as defined in W. J. White Co. v. Winton (1919), 41 Cal.App. 693, 695 [183 P. 277, 278], and Cox v. Tyrone Power Enterprises (1942), 49 Cal.App.2d 383, 395 [121 P.2d 829, 836]. Leaving a protest on a table in a room where no person was present with whom it could have been filed, was no more a “filing” than was slipping a notice of appeal under the clerk’s closed door a filing, the fact considered in the case first cited.
Let us note again the words of section 35312 which extend the veto privilege: “At any time before the hour set for hearing objections, any owner of property within the territory may file written protest . . . .” These words do not say, and cannot fairly be interpreted to mean, that written protests may be filed at any moment before the hearing actually begins. In People v. City of Palm Springs (1958), 51 Cal.2d 38, 43 [331 P.2d 4, 7], our Supreme Court said (the emphasis being that of that court) : “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.”
There was, in fact, therefore, no road block ever erected to the city of Industry’s further proceedings. Is the city to
It is true that no mention is made, in the code sections, of the office where any written protest may be filed. In McMillen v. City of El Monte, 180 Cal.App.2d 394, 401 [4 Cal.Rptr. 750, 755], after quoting as I have from People v. City of Palm Springs, the court went on to say: “In the present case, in order for the majority protests to be effective in compelling a termination of the annexation proceedings, the protests should have been in writing and filed with the city clerk before the hour set for hearing objections.” None was so filed, and as a consequence it was held that there was no effective protest. But if the court was in error in saying that it was the city clerk with whom any written protest should have been filed—and I am not even suggesting that it was in error —it would not follow that a filing with some official was not required and there was none filed with any official until some time after 8 p. m., “the hour set. ’’ The city attorney correctly advised the City Council of the City of Industry that its hands had not been tied; the city council advisedly believed that it retained jurisdiction to proceed with the annexation ; the trial judge was warranted in entering the judgment that he did; it should be affirmed.
A petition for a rehearing was denied February 21, 1961. Bishop, J. pro tem.,
Assigned by Chairman of Judicial Council,
Assigned by Chairman of Judicial Council.
Reference
- Full Case Name
- CITY OF EL MONTE Et Al., Appellants, v. CITY OF INDUSTRY Et Al., Respondents; CITY OF INDUSTRY, Respondent, v. CITY OF EL MONTE Et Al., Appellants
- Cited By
- 19 cases
- Status
- Published