207 Cal. App. 2d 637 | Cal. Ct. App. | 1962
Appeal from judgment directing issuance of peremptory writ of mandate requiring appellant City of Pomona and its officers to terminate all proceedings for annexation to said city of inhabited territory designated as “Brea Canyon Addition.’’
The proceeding was initiated by resolution of January 3, 1961, which was followed by resolution 61-47 passed on March 6, 1961, fixing a time and place for protests by property owners. As later amended this resolution fixed June 5, 1961, at 8 p. m. as the time for hearing protests. Section 35120, Government Code, as it then stood, read in pertinent part as follows: “At any time not later than the hour set for hearing objections to the election, any owner of property within the territory may make a written protest against the election. If at the time set for hearing objections to the election, there are insufficient protests to terminate further proceedings, supplemental protests may be filed within 10 days thereafter. The protest shall state the name of the owner of the property affected and the street address or other description of the property sufficient to identify it on the last equalized assessment roll. ... As used in this article, ‘owner’ means the owner as shown on the last equalized assessment roll, or the person or persons entitled to be shown as owner on the current assessment roll who shall be deemed the owner, or where such land is subject to a recorded written agreement to buy, the purchaser under such agreement to buy shall be deemed the owner. ...” (Stats. 1959, ch. 1867, p. 4425.) Section 35121 then provided: “At the time set for hearing protests, or to which the hearing may have been continued, the city legislative body shall hear and pass upon all protests so made. If it finds that protest is made by the owners of one-half of the value of the territory proposed to be annexed as shown by the
The said meeting for hearing protests was held at the specified time but prior thereto written protests had been filed by owners of more than half of the value of territory within said annexation as shown by the last equalized assessment roll of Los Angeles County; they represented over 66 per cent of the assessed value of the said territory. The hearing was continued to June 12, 1961, and then further continued to June 19, 1961. At the meeting on the 19th two property owners in the annexation area who had previously filed protests undertook to withdraw the same and the city council purported to permit such withdrawals and to determine that such withdrawals resulted in the total protests amounting to less than half of the value of the territory within the annexation area. The council then adopted a motion terminating the protest hearing and overruling protests; also introduced was Ordinance No. 1747 calling a special election pertaining to said annexation; it was adopted at the council meeting of June 26, 1961. On August 14, 1961, Weldon J. Daily, respondent herein, filed a petition in the superior court seeking a writ of mandate requiring discontinuance of said annexation proceedings. Issuance of same having been ordered by the judgment entered below, this appeal followed.
The question in this court is whether section 35012, Government Code, which became effective on September 15, 1961, was merely declaratory of the law existing prior thereto or whether it worked a change in the law. That section reads: “Any person making a protest to an annexation or to an annexation election may withdraw his protest at any time prior to final adjournment of the hearing on protests by filing with the clerk of the legislative body of the annexing city a written statement that he withdraws his protest. If the withdrawal is made during the hearing the written statement may be filed with the legislative body or with the clerk. ’ ’
The case of Strauss v. Board of Supervisors, 181 Cal.App.2d 133 [5 Cal.Rptr. 294] (decided May 20, 1960; hearing in Supreme Court denied July 12, 1960), bears directly upon the present problem. It arose under section 34311, Government Code,
That this ruling correctly interpreted the law existing prior to September 1961, has been reaffirmed by the decision of the District Court of Appeal for the Third District in Cockerill v. City of Redding, 198 Cal.App.2d 108 [17 Cal.Rptr. 754] (hearing in Supreme Court denied on February 7, 1962). That case arose under the Annexation Act of 1913 (Gov. Code, § 35100 et seq.), as did the one at bar, and involved proceedings had in 1960. The court affirmed a judgment ordering termination of annexation proceedings, which judgment was based upon rejection of a claim of right to withdraw protests previously filed. The court said, in part: "The question, however, is whether this enactment made new law or merely clarified existing law. Should we hold here that, although the legislature has never granted express power to permit withdrawal of protests until 1961, it had been its intent to give implied power all along? We think not.
“The general rule is that, in annexation proceedings, the statute constitutes the measure of the power to be exercised by the city council (American Distilling Co. v. City Council, City of Sausalito, 34 Cal.2d 660, 664 [212 P.2d 704, 18 A.L.R.2d 1247]); and we also approach interpretation of this statute with the fundamental rule that
It is presumed that any statutory amendment works a change in the law. Whitley v. Superior Court, 18 Cal.2d 75,
The enactment of section 35012 occurred at the next session of the Legislature following the Strauss decision. The immediate inference is that the Legislature intended to reverse the policy of the law as declared in that ease. Counsel for appellant argue that the amendment was merely declaratory of existing law and urge as a basis for such construction information found in “ 'Interim Assembly Committee on Municipal and County Government for 1960, ’ which is to be found in Assembly Interim Committee Reports 1959-1961, Volume 6, No. 16, pages 7 to 63 as found in Bound Volume ‘Appendix to Journal of the Assembly—California—regular session, 1961, Vol. 1.’ ” We find their review of the same unconvincing. Nothing in the record suggests a legislative intention to declare the Strauss decision erroneous, but merely a desire to bring the law into harmony with the legislative idea of what it ought to be.
The instant proceeding having been conducted prior to the 1961 enactment of section 35012, the Strauss and Cockerill decisions control and require an affirmance of the judgment.
Counsel for appellant argue the effect of the following language of section 35120, “If at the time set for hearing objections to the election, there are insufficient protests to terminate further proceedings, supplemental protests may be filed within 10 days thereafter.” In view of the holding upon the controlling point in the case we find that this problem is no longer before us and hence do not discuss it.
Judgment affirmed.
Fox, P. J., and Herndon, J., concurred.
Said section 34311 provides in part as follows; “The board shall hold a hearing. ... If upon the final hearing the board of supervisors finds