*1 7.74 Dist., Div. Three. No. 24552. Second Feb. 1961.]
[Civ. al., Appellants, EL et v. CITY OF CITY OF MONTE al., Respondents. et INDUSTRY INDUSTRY, Respondent, OF CITY v. CITY OF Appellants. al., et EL MONTE *2 ames A. J Nicklin, Attorney, Burke, Williams & Soren- Boyal and sen Appellants. M. Sorensen for Edgar Robert Beverly, Boyko C. Paul Richards, Wat- son, Hemmerling Smith & Respondents, FORD, J. appeal This separate involves two matters which were purpose consolidated of each, trial. a writ sought of mandate was compel the termination aof certain proceeding relating territory. (See uninhabited Code, Gov. Land attempted § involved each annexa overlapped tion land included in the pertinent other. The facts were embodied in a stipulation. proceeding The annexation to be first discussed herein will be called El Monte Annexation 134. The of September El Monte instituted territory. 9, 1959, annexation of certain an ordi On March adopted approving
nance was However, such annexation. territory strip public land, including involved contained a street, long which was over 300 feet less than 200 feet strip only wide connection between the El of Monte and the rest embodied strip annexation; balance Industry. within problem 3 miles boundaries of the No to the consent owners was gave However, never con involved. sent to its to the attack such annexation. Pursuant validity proceedings, had been no court determined that there valid annexation. readily apparent That such determination correct language 35002.5 and 35304.5 from the sections Distilling As American Code.1 stated Government page 664 Cal.2d Sausalito, Co. v. Council of proceeding the 1247], in such a 704, 18 A.L.R.2d *3 by power the the to be exercised statute constitutes measure of city council. the city attempts to of El Monte avoid such determi Validating by (Stats. First Act of nation recourse the 1959. 6, 12, 1857.) in p. (c) section subdivision thereof 1959, ch. But " provisions operate of the act not it that the shall is stated any validate, legalize act, or inquired confirm, proceeding, or other being contested or legality of which is the matter pending and any legal proceeding now undetermined in into period the may pending or undetermined or which city may be altered “The boundaries of 35302 is as follows: 1Section incorporated to, territory within contiguous annexed uninhabited ” it, pursuant to this article. by 35301) (made proceeding in. applicable is § such 35002.5 Section contiguous part ‘contiguous’ strip “Territory word not deemed the shall as follows: only contiguity chapter is based on a in if the is used this wide, long width 200 feet such and less than land over 300 feet of highways. to be exclusive of “Notwithstanding provisions is in follows: Section 35304.5 abutting street, property 35002.5, territory consisting on a of of Section street, highway, that it highway, road to the extent such or road and street, highway, together which property or road abuts such city pursuant city may be annexed to to the connects this street, portion provided, of such if article . . . boundaries of highway miles of the within three or road situated body legislative shall first of such other of other consent be obtained.’’ days 30of and after the of from effective date this act. . . .” 13, petition for That act became effective March 1959. The compel writ of mandate to proceeding termination such annexation by In- in was filed court an dustry April on date alternative writ Assuming annexation mandate issued.2 subject legislative legislation can- validation, were the 1959 not aid El Monte. problem A presented more by difficult the other proceeding herein involved which desig shall be Industry
nated Annexation 26, 1958, 36. On November City City Council of adopted a resolution (No. 112) instituting proceedings for the annexation of cer tain territory. uninhabited that resolution, Under January set for at 8 purpose m. for the hearing objections proposed to the annexation. resolu Such provided tion may any protest be writing, “must [and] be filed at time before the for hearing objec hour set ,”3 tions proposed annexation . . objections . Written signed were the owners of having an assessed per value of 54.2 cent of the total assessed value of real proposed involved stipu annexation. lation facts, “prior protests, stated that such written to 8:00 toM., wit, approximately January P. -.53 onM., 22,1959, placed City on the Council table of said Council in front of the occupied by Mayor seat of said when said Council was in placed session. That said exhibits were so by Royal Sorensen, attorney signers M. representing the of said City exhibits. . . That . . . . the not session and no member thereof was in the stipulation Council chamber.” The also contains the following statement as to what occurred on that occasion: “That after 7:20 P. M. and to 8 :00 on said date P. M. signed duplicate originals efforts were made to file protests] of [such ... office Clerk Industry. That between the hours of :00 P. M. and 8:10 January 22, P. M. on Clerk’s office was *4 petition Industry 2The of writ mandate with Annexation attempted discussed, which annexation is hereafter was filed in the superior 23, 1959, court on March which on date an alternative writ of mandate issued. 3Section 35312 of the Government is in “At Code as follows: hearing objections, any time before the hour set for ’ ’ territory may against within the file written the annexation. open City deputy there was at on and no Clerk or said officeor premises City during Hall such time. That dur- ing date, City Manager’s such on time said officewas open City Manager premises. That nor was the on be- said date, tween the hours of attempts said P. M. 8 :00 P. M. on 7:30 and City City Deputy Clerk, were made to locate the City Clerk, City on and of the Council members Manager, premises filing signed City Hall, purpose said duplicate any of originals [protests] . . with such of said . Deputy City Clerk,
persons. City Clerk, That neither the City City of the in the Manager, nor member of the Council City premises appeared on the said 8:10 5:00 P. and Council the hours of M. Chamber between City of In- of the P. M. on date. offices said That all open on including City office, were dustry, Clerk’s days customary hours between during business business the including adoption No. 112 date of of Resolution that said January 1959; the date of on customary offices at the closed hour of 5:00 P. on said M. latter That 8:00 date. between hours 7:30 P. M. and January 22, P. M. and at times such period, at there was the entrance stationed Hall a Council City orig- person signed duplicate chamber and [protests] purpose inals of . . . such said City Clerk, City Manager, member documents with appeared person no at such City Council, of the but during any premises at the Hall of such location or meeting time. That Council council- 8 :11 P. on said date. while the That, convened at M. table, Industry were at the men seated meeting prior to order 8:11 to the was called but Mayor M., Royal called the attention P. M. Sorensen attorney said Watson, R. of city, said Glenn protests] . on the table . . were [such placed . . . had been Mayor’s place table and at said Council February 19, another 1959, in 8 :00 M.” On there “there city council, to the effect a motion meeting of the passed. There- majority protest” was made was not introduced. approving the upon, an ordinance adopted. February 26, 1959, that ordinance On presented question court the was thus There precluded timely had been filed of whether proceedings. That court pursuit of the annexation further that no the annexation were filed determined *5 by petition per- provided law;4 the the time within emptory writ of mandate was denied. People City Springs, Palm In v. Cal.2d [331 succinctly statutory Supreme stated the law 4], the Court said, pages It at to such an annexation. 41-42: pursuant annexation conducted to the ‘Annexation “The (Stats. Territory 297, 1939, Act of 1939.’ ch. Uninhabited permits Code, 35300-35326.) That act 1567; now Gov. §§ (Gov. ‘contiguous territory’ Code, to annex uninhabited by city’s proceedings 35302) initiated resolution of the § (Gov. legislative body. 35310.) resolution must Code, § legislative body's desiring reasons for state the (Gov. territory Code, 35310), describe the boundaries of the § designate by appropriate name, an annexed, to be it and con- place legislative body tain notice of the will hear time and (Gov. Copies protests against 35306.) Code, the annexation. § published of the resolution must be in both twice county newspapers general circulation, and written notice territory is to be twenty days to each landowner in the at least mailed public hearing. (Gov. Code, before the first 35311.) § “Any territory may owner of within the file writ objec hearing ten time before the hour set for (Gov. Code, legislative body 35312), tions must § (Gov. 35313.) pass upon protests hear Code, so made. § territory[5] pro If the owners of one-half of the value of the (Gov. Code, test, be taken. further shall not 35313.) made, But if are not sufficient valid § legislative body approve disapprove annexation, must or (Gov. by Code, 35314.) is ordinance. The annexation com § plete copy is transmitted when certified ordinance by (Gov. Code, secretary him. state filed §§ 35318.)” resolving question presented, that, It thus clear meaning language necessary interpret used Code. first of section 35312 of Government sentence finding annexation of was: “No written 4The Indus filed with the said eity City Clerk, try, said hour set said officer of ’ ’
hearing objections. words, “As 5In 35313 was amended the addition section ’ ‘ article, value of the land means the in this value of the used and 5, p. (Stats. 1955, improvements ch. § thereon.’’ page 45, Springs, supra, People Palm 51 Cal.2d v. merely 1955 amendment therefore conclude court said: “We existing declaratory law. ...” language the hour set is “At That territory may objections, within (Emphasis protest against the annexation. file County Angeles Los added.) found Guidance Frisbie, page it was said at 19 Cal.2d wherein clearly “Excepting otherwise intended when : 526] ordinary given their indicated, words in a statute should *6 in accord with meaning and a sensible construction receive (See meaning Beh commonly thereof.” also the understood Cal.App.2d 684, County Angeles, ling Los 139 687 v. [294 534].) P.2d “at before the hour set The words time hearing objections” in the resolu used in section 35312 and as would ordi tion of the Council of the they narily by persons whom were addressed be to understood timely presented if to meaning protests would be made as hearing city at moment before the the council time .6 Industry argues respect with to the matter The protests because such written a is not correct such construction during in his office have been filed with the clerk should many regular hours.7 it is true that statutes his office While are various documents specify particular officer with whom a any specific designate filed,8 be section 35312 does not to “any within the terri officer with whom owner tory against annexation.” may protest written the Such file impression interesting apparently made the 6It this is to note Cal.App.2d Beach, upon Seal 157 in Heller the court court, although question 97], was not before the 441 because the [321 page “set 7:30 o’clock council at 442 it is said that the filing protests p. m., February for the as the deadline annexation, pursuant proposed Code.” Government to section the Monte, 180 in El 7It is stated case of McMillen v. recent present case, Cal.App.2d Cal.Rptr. 750], page “In 394 401: at [4 compelling majority protests in in a termi order for the to be effective proceedings, protests should have been nation of the annexation writing with clerk the hour set for and filed protests objections.” However, filing with the statement with to only protests clerk was dictum because that case the were oral Tyrone Enterprises, written. As court said in Cox v. Power and not “Particularly Cal.App.2d 383, page 49 that it true [121 829]: necessary incidental statements of conclusions not the decision to ’ ’ regarded authority. are not to be 8Examples Highways from the Street and Code will Thus in suffice. following: “However, protests 2856 is section filed with the clerk of the the all written shall be legislative body at or fixed for time language: hearing. following ...” “At section is found the hearing objections pro time not later than the hour set for to posed work, any may liable to be for the work' assessed protest. writing . Such make written . . be in must , . . be delivered the clerk. ...” support in reason omission finds because nature of the protests proceeding. legislative are addressed Such body pass upon designated pur them which is at the time suant to 35313 of section the Government Code hearing protests, “At set follows: the time or to hearing may which the body continued, legislative have been pass protests upon shall hear so made. If such protests may up be filed to the hour of the as we hearing, obviously believe, they presented may place be meeting legislative body immediately prior hour convening circumstances, set for there thereof. Under such necessity any particular agent designate is no for the act legislative body though even filed at a might appropriately filed clerk with the thereof. Conse quently, Cal.App. Winton, such as White cases W. J. Co. v. 277], involving filing designated official appeal of a action, pertinent notice of civil are not because, filing where is to be in matter of that made obviously nature, done must be established office hours of such official.9 question We turn to the if whether, even such written up could filed to the hour of the hearing, there timely lack of in the no ease because
official, designedly otherwise, appearance whether or made his p. in., until after 8 set for objections time to the Certainly, any annexation. citizen could and would reasonably duly assume that some authorized officialor officials present would be the within a reasonable to hour meeting council preliminary to care of take matters just thereto an attorney expect a would clerk to in a courtroom purposes for kindred hour opening before the of the perform duty court. Failure to an such obvious on the operate of the rights cannot to dissolve owners statutory safeguards and to avoid the established in annexa tion proceedings. aptly As stated in Heller v. Coucil supra, Seal Beach, Cal.App.2d 441, pages 157 449-450: carefully “In opinion Legislature our designed pro a whereby rights cedure private property owners and public protected right are in their to annexation proceedings. given great powers Cities have been in the matter power responsi goes equal annexations and with that an respondent’s position logical conclusion, 9If even if is followed to its present meeting the clerk had been a few minutes the time of authority accept in the he would had no case to have since it his was after usual hours. office
bility power to that the is not It of con see it abused. is importance many they whether siderable a landowners play by fair city, out of a and the utmost for.” authorities called practical governance made of men
“Laws are for the a and it is axiomatic that that construction of statute (Kashevaroff v. appears preferred.” to be reasonable to be Webb, 306].) As Cal.App.2d Employment Com. v. Munic Stabilization stated California ipal Cal.App.2d 361], page Court, 62 785: 781 [145 provisions Constitution, statute, should or of “The a technical, rather than practical, receive construction leading policy ; to wise rather than one [citation] ” absurdity.’ We the con- ‘mischief or cannot avoid require- protestants that the acts satisfied clusion suffi- Accordingly, since the ments law. only them and terminate council sustain cient, could Distilling (American proceedings. the annexation Co. Sausalito, supra, 34 Cal.2d single judgment findings of filed and a fact was One set Insofar as relates to El Monte Annexa- entered herein. it was tion Industry as it relates to judgment affirmed. Insofar judgment is reversed and Annexation to the court with directions to matter is remanded respect to findings judgment enter with of fact make conformity opinion; with this Annexation 36 peremptory that a writ of mandate issue judgment shall order proceeding involving that respondents commanding relating terminate certifying from to refrain ordinance Annexation transmitting copy thereof certified thereto Each Secretary of of the State of California. State appeal. his or its own costs party shall bear Vallée, Acting J., concurred. Dissenting. tem.,* Concurring pro
BISHOP, J. relates to El judgment in the insofar Monte I concur part which from that reverses 134, but dissent Annexation respecting Industry Annexa judgment of the trial court upon imposes a death that annexation. tion sentence *8 power given statutory state By law this within uninhabited property one-half of value of owners of city, to a to thwart the will sought be territory, to annexed Council, by *Assigned Judicial Chairman of
783 power to The that desires effect the annexation. is not such has seek their given to the few power may a proceeding, veto permission before but by exercised, way, after are under be protests any annexation “at of written before (Gov. hearing objections.” Code, the hour set for 35312 §§ review, hearing the case the hour In under set adopted objections by was, resolution November p. January 22, hearing 1959. 8 m. All notices re- given. protest quired law were No written filed before January 22. only 8 m. of trial court reached the con- power proceed possible; the not clusion had been destroyed. majority I opinion holding that, do not read under case, protest a written facts this was indeed filed before p.m. Certainly “filed,” there was 8 none that hour meaning within the word as defined W. White Co. J. Cal.App. 693, (1919), 278], v. Winton [183 Tyrone Enterprises (1942), Cal.App.2d 383, Cox v. Power Leaving protest a in a on table room [121 836]. person where no with whom it could have been filed, “filing” was no slipping more than was a notice of appeal under the filing, clerk’s closed door the fact con first sidered the case cited. again
Let us note the words of section 35312 which extend privilege: any “At the veto time before the hour for hear- set ing objections, owner of within the may file written . . . .” These words do say, fairly interpreted mean, and cannot that written may actually hearing filed moment begins. People City Springs Palm (1958), 51 Cal.2d Supreme 4, 7], (the emphasis our being Court said court) : statutory language of that “The is clear. Section provides: 35312 of the Government Code ‘At time before hearing objections, the hour set may protest. within the (Emphasis file written . . .’ added.) permissive give reading Plaintiff seeks to to this section, relying ‘may.’ word But the section means exactly says—only what it filed before hour set for per- need be considered. The section is only required missive protest.” to the extent that no one is to file a fact, was, therefore, There no road block ever erected Industry’s proceedings. further Is *9 protest estopped taking position that no was filed be from to receive one required it had no official on hand because January stipulated p. 22? It filing at m. of 7:59 City including city Industry, officesof the “That City days office, open on all business Clerk’s 26, customary business hours between [November 1958] January 1959; that including the date of customary hour of 5 :00 P. M. city at the officesclosed the said petitioners had over seven weeks latter date.” The on said I protests during regular office their hours. to file city keep requires its offices know of no rule law required official of open hours, nor one that January p. m., hand, to be on p. they present hearing. If at 8 m. for the not the hour set being present set, at the hour but for not be could chided present before that hour. But they because were not late progress, a dam to further had protests, to serve as written p.8 to be filed m. made, sections, that no mention It is true code protest may written filed. In the officewhere McMillen Monte, Cal.App.2d Cal.Rptr. El v. People quoting I have from 755], after Palm say: Springs, the court went on to “In the case, in majority to be in compelling for the effective order a proceedings, termination writing been in and filed with the should have clerk be- hearing objections.” None filed, fore the hour set was so consequence it was held that there as a was no effective saying in error in protest. But if the court was that it was with whom clerk should have suggesting am not even filed—and I that was in error been follow that with some —it would not official was not was none filed with official required and there until some m., attorney correctly “the hour set. time after 8 its advised advisedly tied; been council believed had not hands proceed jurisdiction ; with the annexation retained that it entering judgment judge warranted the trial affirmed. did; it should be he rehearing February 21, was denied 1961. petition A opinion petition pro tem.,* was that the for Bishop, J. petition hearing by Respondents’ granted. should March 1961. was denied Supreme Court *Assigned by Chairman Judicial Council.