84 P. 205 | Cal. | 1906
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *627 This is an action in the nature of quo warranto, brought to determine the validity of certain proceedings whereby defendant, a municipal corporation of the sixth class, claims that certain territory lying adjacent to the town of Ontario has been annexed to and is now a part of said town. Defendant had judgment in the court below, and this is an appeal from the judgment and from an order denying a motion for a new trial. The annexation proceedings were had under the act of March 19, 1889, providing for the annexation of territory to incorporated towns and cities, and for the incorporation of such annexed territory in and as a part of such municipalities. (Stats. 1889, p. 358, c. 247.)
1. The question principally discussed by counsel is as to the constitutionality of said act, it being claimed by plaintiff that the statute is unconstitutional for certain reasons. While the constitutionality of this act has heretofore been upheld by this court as against certain objections made to it (People v. City ofOakland,
It is urged in support of the attack upon the constitutionality of this act that it delegates to private citizens of the municipality, and not to any legislative body or board recognized by the constitution, the absolute power to finally determine the boundaries of the territory proposed to be annexed. This, it is said, is a legislative power which under our constitution could only be delegated to some legislative body. We are of the opinion that there is under the provisions of our constitution no unwarranted delegation of legislative power herein, and that the act in respect to the objection made is violative of no constitutional provision. It is expressly provided by our constitution that corporations for municipal purposes shall not be created by special laws, and that "the legislature, by general laws, shall provide for the incorporation, organization, and classification in proportion to population, of cities and towns." (Art. XI., sec. 6.) This provision necessarily includes not only the creation of new municipal corporations, but also the matter of adding new territory to an existing corporation and the exclusion of territory embraced in such a corporation from further connection therewith. As to all these matters, the legislature is limited to the enactment of general laws, under which municipal corporations may be created, or changes made in the boundaries of those already created, as local needs may demand. From the nature of things, the legislature cannot by general laws fix the boundaries of municipal corporations. It can do no more than provide the method by which boundaries can be fixed and the territory included therein impressed with the character of municipal territory. When it has done this, it has discharged all its legislative functions in this regard. In the absence of constitutional limitation on its power, it is authorized to adopt any method it sees fit. It has said, in effect, by the act under consideration, *630 that with certain prescribed limitations any territory shall become annexed to and a part of any existing city or town, whenever the electors of such territory shall manifest their desire for such annexation by giving a majority vote in favor thereof, and the electors of the city or town have manifested their assent in the same way. All else in the act, including the petition of twenty per cent of the electors of the town or city, has simply to do with the orderly method of obtaining the expression of the desire of the electors of the respective localities, the town and the outside territory, and the procurement of an official record of that expression. The petition of the electors is merely an initiatory step, making it the duty of a body capable of acting in such a matter to officially submit the proposition made by the petitioners, to the electors of the interested localities. The electors of each locality alone determine whether certain described territory shall become a part of the municipal corporation. If the electors of the outside territory vote in favor of such annexation, they expressly assent to and adopt as their own the boundaries designated in the petition for the election. The question, then, would appear to be simply whether the legislature by general laws may authorize the electors of any territory to determine for themselves whether such territory shall constitute a municipal corporation, or, with the assent of the electors of an existing municipality, constitute a portion of said municipality.
As has already been said, the principal objection to the method here adopted is the one relative to the fixing of the precise boundaries. The fixing of the boundaries of a municipality is ordinarily held to be the exercise of legislative power, but assuming it to be such in its nature, in view of the constitutional provision relative to the creation of municipal corporations, it does not follow that the legislature may not confer the power to declare the precise boundaries upon the electors of the district to be affected. The conferring of such power is not a delegation of legislative power at all, for the legislature is expressly prohibited from defining the boundaries. It fully exercised its own legislative power by the enactment of the general law in the matter. Necessarily, for the execution of such general law, the power to define the exact boundary-lines of each particular *631
municipality created or enlarged after the adoption of the constitution must be by such a law placed somewhere. We find no provision in our constitution limiting the right of the legislature to place this power with any tribunal or person, except so far as such right may be limited by section 1 of article III, wherein it is provided that the powers of the government of the state of California shall be divided into three separate departments, the legislative, executive, and judicial, "and no person charged with the exercise of powers properly belonging to one of these departments shall exercise any functions appertaining to either of the others, except as in this constitution expressly directed or permitted." Manifestly this provision has no application. And it is as clear that section 13 of article XI, which provides that "the legislature shall not delegate to any special commission, private corporation, company, association, or individual, any power to make, control, appropriate, supervise, or in any way interfere with any county, city, town, or municipal improvement, money, property, or effects, whether held in trust or otherwise, or to levy taxes or assessments, or perform any municipal functions whatever," has no application here. The fixing of the boundaries of the territory to be annexed is in no sense of the words a "municipal function." (See, generally, Fragley v. Phelan,
There are one or two cases from other states in which a contrary conclusion has been reached upon this question, notably the case of People v. Bennett,
In this connection, the language of this court in In re MaderaIrr. Dist.,
It is further urged that the statute is unconstitutional because it provides for a judicial determination by the city council, without giving the parties affected any notice, knowledge, or day in court. The point of this objection is, that inasmuch as it is the implied duty of the city council to determine the existence of the facts essential to its *634
jurisdiction to order an election, — viz., that the petition is in fact signed by the requisite number of electors (People v. LosAngeles,
2. Portions of the territory annexed were uninhabited, and it is claimed that there could be no annexation of any such lands except by proceedings taken under the act of 1899, providing for the annexation of uninhabited territory. (Stats. 1899, p. 37, c. 41.) Uninhabited land is to be found in probably every settled community in the state, and we cannot conceive of any case of original incorporation or annexation to an existing municipality of inhabited territory that would not almost necessarily include some parcels of land not actually inhabited.
Upon this branch of the case, a full consideration of the acts of the legislature satisfies us that the act of 1899 was never designed to in any way affect any of the provisions of the act of 1889, but was intended solely to afford a method by which territory absolutely uninhabited, and therefore incapable of annexation under such act, being without electors to vote upon the proposition, might be annexed. It is expressly provided in section 5 of the act of 1899 that "nothing in this act shall be deemed to repeal the provisions of any act now providing for the annexation of inhabited territory." If the "territory" proposed to be annexed, regarded as a unit, is inhabited, the proceedings must be had under the act of 1889, regardless of the number of parcels of land included therein that are uninhabited. Any other *635 construction of the act of 1899 would materially affect the act of 1889, which it is clearly indicated was never intended.
3. It is contended that the board of trustees of Ontario never acquired jurisdiction to order an election, for the reason that it never investigated as to the sufficiency of the petition, or made any judicial determination as to whether the petition contained the genuine signatures of the requisite number of electors. The minute entry of the board was as follows, viz.: "A petition was presented to the board signed by thirty-one of the qualified electors of the town of Ontario, praying that an election be called for the purpose of submitting to the electors the question whether certain territory described in said petition should be annexed to, incorporated in, and made a part of the municipal corporation of the town of Ontario. The petition asking for an election as above stated was taken up and discussed, and the following resolution was passed by a unanimous vote: `A petition having been presented, signed by more than one fifth of the qualified electors of the town of Ontario, computed upon the number of votes cast at the last general municipal election, it is therefore carried by the following vote: Ayes, Rothermal, Harper, Miller, Armstrong; noes, none. Resolved and ordered by the board of trustees of the town of Ontario, that a special election be and the same is hereby called to be held on April 15, 1901, in the manner and for the purposes provided in the following notice of election, and the clerk is hereby instructed to have printed the said notice of election according to law.'" And then follows a notice of special election. The duty of a board of trustees to determine whether or not a petition for an annexation election is signed by a sufficient number of electors is entirely implied from the fact that it has no power to order the election except upon a petition signed by that number. The statute nowhere in terms prescribes the necessity of such a determination, or requires any record thereof to be made. It is the petition signed by the requisite number that gives the power and creates the duty, and not the determination of the board as to the sufficiency of that petition. And herein such a case differs from that of Bedell v. Scott,
Much of what has been said is also applicable to the contention based upon the fact that the minute entry of the board does not show that the board received sworn evidence as to the genuineness of the signatures, or made any other investigation than such as may reasonably be implied from the words "was taken up and discussed." The statute no more requires the record of the board to affirmatively show the manner in which it satisfies itself as to the sufficiency of the petition than it requires such record to expressly show the determination *637
of the board as to such sufficiency. The making of the order for the election implies not only the determination, as we have already seen, but also that such determination was reached upon proofs satisfactory to the board. The statute makes no provision as to the character of proof essential in such a case. Whatever may be the rule applicable in certiorari, which is a direct attack upon the particular order alleged to have been in excess of jurisdiction (see Stumpf v. Board of Supervisors,
4. There was sufficient evidence to support the finding of the trial court to the effect that the petition was received and acted upon at a regular adjourned meeting of the board *638 of trustees. The only basis for the objection that the meeting was not a legally assembled one is that the requisite ordinance fixing the time of meetings was not introduced in evidence. The minutes received in evidence purported on their face to be the minutes of certain regular and regular adjourned meetings of said board. The meeting purporting to be a regular meeting, and from which the first adjournment was taken, was held at the regularly appointed place on the first Tuesday of March, 1901. There was evidence showing that the monthly meetings of the board were held on the first Tuesday of each month, from the time of the organization down to a date subsequent to these proceedings, when the ordinance relative to the time of meeting was changed. There was no pretense on the trial that the meeting was not what the minutes indicated it to be, — viz., a regular adjourned meeting. In view of these facts the finding is sufficiently supported. (See Code Civ. Proc., sec. 1920.)
5. All the objections made as to the failure of the board by order to appoint election officers, establish election precincts, fix polling-places, and prescribe the manner and time of publication of notice, are answered by the resolution shown by the minute entries in evidence. The resolution provides: "It is therefore resolved and ordered by the board of trustees of the town of Ontario, that a special election be and the same is hereby called to be held on April 15, 1901, in the manner and for the purposes provided in the following notice of election, and the clerk is hereby instructed to have printed the said notice of election according to law." Then follows the notice referred to, which is complete in every respect above mentioned. Among other things it specified the papers in which and the time for which it should be published, leaving nothing to the discretion of the clerk, as in the case of People v. Linden,
6. The notice of election was given in the manner ordered by the board. It was not necessary that the notice should be signed by the members of the board, the statute simply prescribing that the board shall "cause notice to be given." *639 A notice signed by the acting president of the board and attested by the town clerk and published by order of the board clearly answered every requirement.
7. The statute requires the notice to be published in a newspaper printed and published in the city or town, and "also in a newspaper, if any such there be, printed and published outside of such corporation, but in the county," etc. The evidence was ample to sustain the finding that the Ontario Observer, a newspaper in which the notice was published under the order of the board, was both printed and published outside of the town of Ontario as it existed prior to the annexation.
8. The statute provides that in the notice, the electors "shall be invited to vote upon such proposition by placing upon their ballots the words `For annexation' or `Against annexation,' or words equivalent thereto." The notice simply provided: "All ballots cast at such election shall contain the words `For annexation' or `Against annexation,' or words equivalent thereto." The ballots actually used at the election conformed generally to the so-called Australian ballot law, and, so far as material, were as follows, viz.:
"To vote for the proposition of annexation, stamp a cross (X) in the square opposite and to the right of the word `Yes'; to vote against the proposition of annexation, stamp a cross opposite and to the right of the word `No.'
------------------------------------------------- | (1) For annexation | Yes | | |-----------------------------------------------| | (2) For annexation | No | | -------------------------------------------------
These ballots were caused to be printed by the town clerk, and were delivered by him to the election officers appointed by the board.
In regard to the objection made by plaintiff upon these facts, the learned judge of the trial court said, in his opinion filed in deciding the case: "The resolution apparently was drafted in accordance with the language found in the statute as to the general form of the ticket; but as the statute was passed prior to the adoption of the present ballot law, the resolution contained such language as to make the ballots conformable to such law. As I view it, there was no such material *640
and substantial difference between the form of ballot prescribed by the resolution and the form actually used, as to make the cases of City v. Fitzgerald,
The judgment and order denying a new trial are affirmed.
Shaw, J., Lorigan, J., Henshaw, J., and McFarland, J., concurred.
Beatty, C.J., dissented.
Dissenting Opinion
The point covered by this modification of the original opinion is that upon which my dissent was principally based. As the opinion stood when filed, it amounted to this: That if one acre of a thousand of the proposed addition was inhabited the whole could be annexed under the act of 1889, regardless of the provisions of the act of 1899. The modification now made restricts the right to annex under the act of 1889 to the territory which, "regarded as a whole, may fairly be said to be inhabited." But when may a tract be fairly said to be inhabited? Must the inhabited part amount to one half, or will one fourth or one tenth or one hundredth suffice, and where will be found a rule of decision? If one half of the territory sought to be annexed must be inhabited, this proceeding was invalid. I think, indeed, that not one fourth of it was inhabited. But in my opinion no uninhabited lands can be annexed under the act of *642 1889. To hold that they can is to nullify the act of 1899. To hold that they cannot is not to nullify, but only to restrict, the operation of the act of 1889, and where the two acts conflict the later must control. There are without doubt many inhabited tracts adjoining existing corporations, and upon them the act of 1889 remains operative. It is therefore not repealed by the act of 1899, and the only restriction which the later act imposes upon itself is that it shall not repeal the earlier act. An act which has any practical operation is not repealed. The court seems to think that a point should be strained to continue the act of 1889 in the full and unrestricted operation which it had before the act of 1899. I think, on the contrary, that the earlier act deserves no favors. It is as gross an instance of improvident legislation as can be found in our statute-books, and if it were, what it is not, deprived of all effect by the later act, we could afford to wait with perfect equanimity until the legislature, by a repeal of both acts and a revision of the whole subject, put the power of annexation under such restrictions as to prevent the abuses of which the act of 1889 is susceptible, and of which I think these proceedings are a vivid illustration.
Addendum
The opinion heretofore filed in the above-entitled matter is hereby modified as follows, viz.: The second paragraph of that portion thereof relating to the effect of the act of 1899 (Stats. 1899, p. 37, c. 41), providing for the annexation of uninhabited territory, commencing with the *641 words "Upon this branch of the case," is stricken out, and the following is inserted in lieu thereof:
"Upon this branch of the case, a full consideration of the acts of the legislature satisfies us that the act of 1899 was never designed to in any way affect any of the provisions of the act of 1889, so far as territory which, taken as a whole, may fairly be said to be inhabited territory is concerned, and the evidence in the case at bar was such as to sustain the conclusion of the court below to the effect that the territory here annexed was of that character, notwithstanding the presence of several uninhabited tracts or parcels, each exceeding five acres in area. If the `territory' proposed to be annexed, regarded as a whole, may fairly be said to be inhabited, the proceedings must be had under the act of 1889, regardless of the number of parcels of land included therein that are uninhabited. Any other construction of the act of 1899 would materially affect the act of 1889, which, it is clearly indicated, was never intended. It is expressly provided in section 5 of the act of 1889 that `nothing in this act shall be deemed to repeal the provisions of any act now providing for the annexation of inhabited territory.'"
Sloss, J., Shaw, J., Lorigan, J., Henshaw, J., McFarland, J., concurred.