237 P. 538 | Cal. | 1925
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *214 Plaintiff brought an action seeking to enjoin the City of Huntington Beach and its city marshal from attempting to enforce the provisions of an ordinance prohibiting plaintiff from erecting derricks, installing machinery, and drilling oil wells on its own lands within the city limits. The trial court sustained the general demurrer to the complaint, interposed by the defendants, and plaintiff declined to amend. Judgment was entered for the defendants, from which judgment plaintiff appeals.
The appellant is the owner of thirteen acres of land located within the boundaries of that portion of the City of Huntington Beach designated and set apart as a residence district in two ordinances to be hereinafter referred to. This land, it is alleged, is of great value for the purpose of producing oil and kindred substances, and of a much less *215 value for residential purposes. The predecessor in interest of appellant was about to enter into leases of the land to persons or corporations who agreed to drill oil wells thereon, and did enter into one lease whereby the lessee agreed to drill four wells, and by the terms of which the owner of the property would reasonably expect to receive a sum in excess of fifteen hundred dollars per day royalty from the production of oil therefrom. Just prior to the making of this lease, the board of trustees of Huntington Beach adopted an emergency ordinance, subsequently amending same, establishing a business and a residence district in the city, and making it unlawful, among other things, for any person, firm or corporation to erect, establish, carry on, or maintain within the residence or business districts an oil well or derrick, or the business of drilling or operating for the discovery or production of oil, gas, hydrocarbon, or other kindred substances. The lessee of appellant is ready, willing, and able to proceed with the drilling of wells and the production of oil on the lands of appellant, but he and appellant are prevented from proceeding with their plans by reason of the ordinances referred to, the city threatening to prosecute appellant and imprison its officers, agents, or employees or any persons attempting to proceed with the production of oil under the terms of the lease.
It is alleged that the respondent city arbitrarily and without reason adopted the ordinances prohibiting the drilling for oil on appellant's land, and that its action is unreasonable, arbitrary, and discriminatory. In support of these general averments, it is alleged that the property of appellant is proven oil land, and is situate upon the principal oil-bearing district of the City of Huntington Beach. Within five hundred feet of appellant's easterly line there are now producing wells, and within nine hundred feet of its property there are no less than twenty completed wells. Some of these wells are in operation and produce large quantities of oil. Thirty-six blocks of Huntington Beach, lying north and east of appellant's premises, and within the purported residence district, are sparsely populated. The larger part of this territory is vacant and unoccupied by residences, there being not more than twenty houses in that section of the city when the first ordinance was passed. Just east of the eastern boundary line of the established residence *216 district, and not included therein, is the most costly elementary school building in the City of Huntington Beach, and a number of residences. Near the schoolhouse and the residences numerous oil wells have been drilled since the adoption of the ordinances, and derricks and engine-houses have been erected and oil-producing machinery installed. In another direction, within ten blocks of the lands of appellant, there is a section of the city more densely populated than the restricted area, the greater portion of which is occupied by residences, and in which the city has permitted the drilling of oil wells and the production of oil. The erection of oil derricks and engine-houses and the drilling of oil wells on its premises will not, appellant alleges, in any way endanger the safety, health, or welfare of the people of Huntington Beach.
We are of the opinion that the appellant has stated a cause of action. The business of boring for and producing oil is a lawful enterprise. The effect of the ordinance, absolutely prohibiting the maintenance or operation of oil wells within certain designated limits of the City of Huntington Beach, is to deprive the owners of real property within such limits of a valuable right incident to their ownership. While the use to which one may put his property may be restricted or regulated by the state, in the exercise of its police power, so far as it may be necessary to protect others from injury from such use, it is elementary that the enjoyment of the property cannot be interfered with or limited arbitrarily. (In re Kelso,
It is apparent from the averments of the complaint that appellant has attempted to plead a situation analogous to those considered in the two decisions of this court last cited. It has been fairly successful, and presents a case in which a property owner is prohibited by the municipality from installing machinery and operating an oil well on its property, while in other districts of the city, more thickly populated and densely settled, and devoted to residence purposes, the conduct of like operations is permitted. (In re Application of Throop, supra, and Curtis v. Los Angeles, supra.) For these reasons, appellant should be accorded the opportunity to establish, if it can, the unreasonableness *218 and discriminatory character of the ordinance, which it alleges amounts to an unwarranted and arbitrary interference with its constitutional rights. The outcome of the controversy will, of course, depend upon the findings of the trial court when the issues have been finally submitted and determined. The demurrer should have been overruled.
When the ordinance establishing residence and business districts in Huntington Beach, and regulating business therein, was adopted, it contained a section directing the city clerk to certify to its passage and cause it to be published, the ordinance to take "effect immediately from and after publication." It is alleged in the complaint that the president of the board of trustees did not append his signature thereto, as required by the provision of the general corporation bill (Stats. 1883, p. 270), section 863 of which provides that every ordinance of the city must be signed by the president of the board of trustees and attested by the clerk, and must be published by the board at least once in a newspaper of general circulation published and circulated in the city. Because of this omission, appellant contends that the ordinance restricting its use of its property is null and of no effect. The trial court sustained the contention of the respondent that the signing by the president constituted only a ministerial act, and that the validity of the ordinance did not depend upon his signature.
Huntington Beach is a city of the sixth class, formed under the general act providing for the organization, incorporation, and government of municipal corporations (Henning's General Laws 1920, p. 1961). In cities of the fifth and sixth classes, formed under the provisions of that act, the legislative power is vested in a board of five trustees. There is no mayor, and there is nothing in the organic act requiring or permitting the submission of ordinances to any executive, or other officer for his approval before they become effective. The board is required to elect one of its members president, but his sole power in legislative matters is confined to his one vote as a member of the board. No veto power is given to him as president of the board. Ordinances are not required to be submitted to him for his approval before becoming effective. His act in signing, therefore, is only the performance of a ministerial duty for the sole purpose of authenticating the action of the board. *219
The ordinary rule is that legislative enactments become operative upon their passage, unless there is some express provision of law or a provision in the act itself to the contrary. (Gay v. Engebretsen,
The signing of ordinances by the mayor, or other designated officer of a municipality, is for one of two purposes. If, by virtue of the right of veto, such officer is invested with some of the law-making power of the municipality, his signing is for the purpose of registering his approval of the measure. Without such signature and approval the ordinance is of no effect. But, if the signing is merely for the purpose of authenticating by his signature an ordinance legally passed, the act is purely ministerial, and may be enforced by writ of mandate. (San Buenaventura v. McGuire,
Appellant relies on the case of City of San Buenaventura v.McGuire,
There is nothing in the statute under which Huntington Beach was incorporated either expressly declaring or indirectly indicating that ordinances duly passed by the *221
board of trustees of cities of the sixth class shall not become effective on their passage. There is not to be found in it any provision that signing by the president, attestation by the clerk, or publication of ordinances are conditions precedent to their becoming valid enactments. These ministerial acts are merely for the purpose of authenticating the action of the board, and giving notice of the contents of the ordinances passed by it. Consequently, the signing by the president is not a condition precedent to the validity of an ordinance duly passed by the board of trustees. (Commonwealth v. Davis,
The suggestion is advanced that, because in the instances cited (San Buenaventura v. McGuire, supra, and State v. Taylor,supra), and in other states, courts have issued writs of mandate in similar cases to compel the signing of ordinances, the courts must have concluded that the performance of such ministerial acts was essential to the validity of the enactments under consideration. Otherwise, proceeds the argument, the courts violated the rule that "a court does not do the vain and foolish thing of ordering an inferior . . . tribunal to do that which accomplishes nothing; it exercises power to issue the writ only when some useful purpose may be accomplished thereby." (16 Cal. Jur., p. 776.) In the San Buenaventura case it was conceded thatmandamus would lie, and it does not appear from the decision in the Washington case that the point was there made. While we are not now concerned with the question, we are not prepared to say that a useful purpose may not be accomplished by compelling the performance of a plain statutory duty, even though it may be ministerial and directory only. *222
The writ of mandamus may be issued to compel the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station. (Code Civ. Proc., sec. 1085.) It is well settled, of course, that if the duty an officer is called upon to perform requires the exercise of an act of judgment on his part, his decision is not subject to be reviewed by a proceeding for a writ of mandamus. But, where the discretion ceases, and the act to be done is purely ministerial, the duty becomes absolute, and can be compelled through the application of the writ. (Keller v. Hewitt,
The judgment is reversed and the cause is remanded to the lower court, with directions to overrule the demurrer interposed to the plaintiff's complaint.
Seawell, J., Richards, J., Lawlor, J., and Lennon, J., concurred.