Kern County Union High School District v. McDonald

In this action, the corporation plaintiff sought and secured, by the exercise of the right of eminent domain, a judgment condemning certain real property belonging to the (defendants in the city of Bakersfield. The appeal is from the judgment and final order of condemnation. The complaint was filed June 2, 1917, and, among other things, alleges: “That the public interest and necessity require the construction by the said Kern County High School District of a gymnasium or athletic building, and also the acquisition by the said district as a site upon which the said building may be erected, of that certain tract of land hereinafter described; that the board of trustees of the said plaintiff on the twenty-fourth day of May, 1917, duly passed and adopted by a unanimous vote of the board of trustees, a resolution directing proceedings to be taken under Title VII, Part III, of the Code of Civil Procedure of the state of California, to condemn said tract of land for the public use set forth.” Issue having been

It was an admitted fact in the ease that “the act of the legislature” referred to in the preamble of the resolution was

[1] It was not essential to the sufficiency of the cause of action pleaded that the complaint should contain an allegation that the plaintiff was empowered by a valid or any resolution of its board of trustees to proceed in condemnation. Section 1244 of the Code of Civil Procedure, which prescribes the essentials of a complaint in eminent domain proceedings, does not require a statement of the adoption of such a resolution, and, therefore, it was not necessary to allege that fact. (Central Pacific R. R. Co. v. Feldman, 152 Cal. 308 , [ 92 Pac. 849 ].) [2] The requirement of that code section (subdivision 3), that the complaint "must contain ... a statement of the right of the plaintiff,” has reference only to a statement of the legal right or authority of the plaintiff to exercise the power of eminent domain, and, as against a general demurrer, the complaint before us sufficiently complied with the mandate of the statute by alleging, in effect, that the taking was sought pursuant to the provisions of Title VII, Part III, of the Code of Civil Procedure. (Lake Shore etc. R. R. Co. v. Baltimore etc. R. R. Co., 149 Ill. 272 , 285, [ 37 N. E. 91 ].) [3] The resolution in question not being essential to the statement of plaintiff’s cause of action, it would seem to follow that proof of its passage was not necessary to. the maintenance of plaintiff’s cause (Central Pacific R. R. Co. v. Feldman, supra), but, however that may be, we are satisfied that the source of plaintiff’s power to proceed in condemnation for the purpose stated in the complaint did not begin with and end in the act referred to in the resolution; nor was such power, as granted elsewhere in the then existing law, in any wise restricted or restrained by the verbiage of the preamble of the resolution. The latter proposition is so because it was wholly unnecessary to the efficacy of the resolution that it should have a preamble, or, having it, that the resolution should, in the absence of a statutory

[4] This, then, brings us to a consideration of the text of Title VII, Part III, of the Code of Civil Procedure, and we find embodied therein section 1238 of that code as it existed and was in operation a-t and 'before the commencement of the action and the preliminary proceedings in condemnation in question here, which authorizes a school district to exercise the right of eminent domain for the purpose of acquiring “public buildings and grounds for the use ... of any . . . school district.” This code section, as we read it in conjunction with various other sections and provisions of our code and statute law relative to and regulating the public school system of the state, all of which were also in full force and effect at all of the times invoved in this action, clearly empowered the plaintiff, if not expressly, then by necessary implication, to proceed to condemn the land in suit for the purpose prescribed in the resolution and alleged in the complaint. Section 1750 of the Political Code provides that “every high school course of study may include training in athletics . . . for which credit may be given as a part of said high school work, and instruction therein shall be given at such times and in such manner as said high school board shall determine.” Section 1668 of the Political Code commands that “attention must be given to such physical exercises for the pupils as may be conducive to health and vigor of body as well as mind.” Subdivision 5 of section 1610 of the Political Code (Stats. 1917, p. 739), formerly subdivision 21 of section 1617 of the same code, provides that boards of school trustees and city boards of education shall have power and it shall be their duty “to give diligent care to the health and physical development of pupils,” and by virtue of the provisions of section 1741 of the Political Code the powers and duties of school boards now found in said subdivision 5 of section 1610 of that code and primarily existing in subdivision 21 of section 1617 were at all of the times herein involved applicable to high school district boards. In addition to all of this there was in force and effect at and prior to the commencement of the action and the institution of the preliminary proceedings included therein, a statute entitled “An act to provide for health and development supervision in the public schools,” etc. (Stats. 1909, p. 908), which author

It is settled law that the power to determine what uses are public is vested in the legislature, and clearly the public character of the use sought to be secured in the present case is embodied within the several laws hereinbefore enumerated. While it is true that no express mention is made in any of the code sections or statutes previously mentioned and outlined concerning the necessity for and construction of a gymnasium and athletic building as an adjunct for the physical development and training of the pupils of the public schools, still the necessity for such a building and its consequent construction is inherently embodied in the underlying principles which permeate and prompted the enactment of those several laws, and the power to put these principles into actual operation by the creation and employment of such agencies as would ordinarily and naturally be required for the accomplishment of the desired results follows by necessary implication. The plaintiff, having thus been duly invested by existing law with the right to provide the agencies necessary to the accomplishment of the legislative design, rightly resorted to the exercise of the power of eminent domain in the furtherance of that design, and it was not essential to the exercise of that power that the plaintiff should have previously prescribed as a part of the high school curriculum a course of instruction in athletics. Granting, for the sake of discussion, that under the terms of section 1750 of the Political Code the institution of a course of instruction in athletics was a matter of discretion with the plaintiff and that the exercise of such discretion, to be effective, was required to be evidenced by formally including such a course in the “high school course of study,” still it cannot be said that a present necessity for the use in suit within the meaning of the law of eminent domain did not exist at the time of the commencement of the action. In this behalf it will be noted that the act of May 26, 1917 (Stats. 1917, p. 1177), became effective on July 27,1917, just one month and twenty-five days subsequent to the institution of the action,

Clearly, under existing laws the plaintiff was empowered in its discretion to provide suitable courses of physical education, and therefore could have exercised such discretion in anticipation of the mandatory requirements of the new law, but doubtless deferred doing so until such time as it could be assured that it would have the appurtenances at hand necessary to the inauguration and effective operation of such a course; and it may be fairly assumed that the act in question was the incentive for the proceedings in condemnation in anticipation of the future and added needs of the school district which were certain to come into being with the operation of the mandatory requirements of the new law. Immediate future needs are ordinarily an essential factor in the determination of the question of whether or not there is a present necessity for a taking in condemnation for the purposes of a particular public use. (Central Pac. R. R. Co. v. Feldman, 152 Cal. 308 , [ 92 Pac. 849 ].) And this is so, because of the obvious fact “that the beneficial exercise of the power of acquiring property for public use cannot be enjoyed unless allowed in anticipation of the contemplated improvement and '. . . the mere fact that the land proposed to be taken for a public use is not needed for the present and immediate purpose of the petitioning party, is not necessarily a defense to a proceeding to condemn it.” (Matter of Staten Island, etc., 103 N. Y. 251 , [ 8 N. E. 548 ].)

[5] But one other point remains To be discussed, and that involves the right of the plaintiff to amend its complaint, whi-eh was done on the day when the action came on for trial. The amended complaint differed from the original in the particulars only, that it did not plead the previous passage of a resolution by its board of trustees, and in that a cause of action was stated for the condemnation of the entire one hundred feet of land belonging to the defendants instead of only eighty .feet thereof as originally prayed for. It is now insisted that the amendment was in no wise materially related to the cause of action originally pleaded, but constituted the statement of a supplemental and entirely new cause of action. This contention, like the primary contention of the appellants, rests, in

The judgment and order are affirmed.

Wilbur, J., Melvin, J., Sloss, J., Shaw, J., and Angellotti, C. J., concurred.

Rehearing denied.

All the Justices concurred.