Harden v. Superior Court

Petitioners, William R. Harden and Pearl B. Harden, his wife, Chester N. Harden and Virginia Hart Harden, his wife, seek a writ of prohibition to restrain further proceedings in an eminent domain action brought against them and other property owners by the city of Hayward.

Petitioners own certain land in Alameda County, lying adjacent to, but outside the corporate boundaries of, the city of Hayward. On June 28, 1954, petitioners obtained a building permit from the county of Alameda which author

in addition to the above-mentioned facts, petitioners allege that all work has been stopped on the building; that the partially constructed building is in danger of being lost or destroyed by reason of the elements, theft or vandalism and that if such destruction occurs, they will suffer a loss in excess of $40,000; that the county of Alameda has ordered them to support laterally the masonry walls of the partially constructed building because of the abandonment of the construction pending the determination of the condemnation suit. Petitioners also allege that the loss they will suffer from the destruction of the existing structure is not compensable as damages in an eminent domain action and that if forced to support laterally the masonry walls, they will suffer additional expenses. It is contended that the city’s complaint shows, on its face, that the action in eminent domain is not maintainable because a city of the sixth class may not exercise the power of eminent domain as to property outside its corporate limits; that if the superior court proceeds with the action, petitioners will suffer great loss; that an appeal from an adverse judgment is not an adequate remedy, and that a writ of prohibition should therefore issue. The city filed a memorandum in opposition, contending that the petition should be denied because an adequate remedy exists by way of appeal from the judgment; and that the complaint is not

We said in Rescue Army v. Municipal Court, 28 Cal.2d 460 , 462 [ 171 P.2d 8 ], that “The constitutionality of a statute or ordinance may be tested by prohibition on the ground that invalidity of the legislation goes to the jurisdiction of the court to proceed to try the case. (See Whitney v. Superior Court, 182 Cal. 114 [ 187 P. 12 ]; Levy v. Superior Court, 105 Cal. 600 [ 38 P. 965 , 29 L.R.A. 811 ]; Arfsten v. Superior Court, 20 Cal.App. 269 , 275 [ 128 P. 949 ]; . . .” We also said that “In prohibition, however, we are limited by statute to proceedings without or in excess of jurisdiction (Code Civ. Proc., § 1102) and we are therefore squarely confronted with the problems referred to above.” We went on to hold that when the trial court has heard and determined that it has jurisdiction, prohibition will lie to prevent the exercise thereof when that jurisdiction is challenged in that court “by demurrer, motion, plea or other objection of some kind.” When the trial court has heard and determined the jurisdictional challenge and has decided in favor of its own jurisdiction, and then proceeds to act—to try the cause on its merits, it may then be claimed that a court without jurisdiction is purporting to exercise it. Then, jurisdiction to determine jurisdiction has been exercised and the higher courts will restrain the lower court from acting in excess of its jurisdiction. (Greenberg v. Superior Court, 19 Cal.2d 319 [ 121 P.2d 713 ] ; Abelleira v. District Court of Appeal, 17 Cal.2d 280 [ 109 P.2d 942 , 132 A.L.R. 715 ]; Jackson v. Superior Court, 10 Cal.2d 350 [ 74 P.2d 243 , 113 A.L.R. 1422 ].)

The city contends that prohibition will not lie in that petitioners have a speedy and adequate remedy by way of appeal. As was held in Gorbacheff v. Justice's Court, 31 Cal.2d 178 , 180 [ 187 P.2d 407 ], the fact that an appeal is available does not, in and of itself, necessarily preclude resort to prohibition. Section 1103 of the Code of Civil Procedure authorizes the issuance of the writ, even though an appeal may be taken, if the remedy by appeal is inadequate. In the usual situation an appeal is considered an adequate remedy, “but no hard and fast rule can be laid down to determine in advance whether it fully meets the requirements of justice in a particular case. ’ ’

We said in Providence Baptist Church v. Superior

With regard to the merits of the jurisdictional question involved, it appears that the city of Hayward, a city of the sixth class, acting under the general law, sought by resolution to institute an action in eminent domain to acquire property outside its corporate limits for off-street parking. Primarily, it should be noted that the city contends that petitioners failed to demur on the ground that the court had no jurisdiction or that the plaintiff had not the legal capacity to sue. (Code Civ. Proc., § 430.) Petitioners demurred on the ground (I) that the complaint failed to state facts sufficient to state a cause of action against defendants; and (II) that plaintiff’s complaint was uncertain, (III) ambiguous, and (IV) unintelligible because (V) “it cannot be ascertained from plaintiff’s complaint on file herein whether plaintiff is attempting to exercise the right of eminent domain in its capacity solely as a city of the Sixth Class, as the same is defined under the Constitution and Laws of the State of California, or whether it is exercising or attempting to exercise eminent domain as a ‘City’ under the Vehicle Parking District Law of 1943, the Parking Law of 1949 or the Parking District Law of 1951.” The complaint alleged that plaintiff was a municipal corporation of the sixth class; that its legislative body had adopted a resolution by which it sought to condemn certain real property (described) owned by defendants located outside of its corporate boundaries; that the use for which the property was needed was one authorized by law. We said in the Rescue Army case, supra, that the jurisdiction of the trial court must be challenged in that court “by demurrer, motion, plea or other objection of some kind.” A demurrer reaches only matters appearing on the face of the pleading to which it is directed (21 Cal.Jur., p. 94) ; and a demurrer to the jurisdiction of a court of general jurisdiction lies only where the want of jurisdiction appears affirmatively on the face of the complaint (Doll v. Feller, 16 Cal. 432 ; 41 Am.Jur., § 213, pp. 443, 444). It may be said here that the lack of jurisdiction appears from the city’s allegation that the action involved land outside its corporate limits without alleging its authority to so condemn.

Petitioners did demur on the ground that the complaint

If it appears that there was, as contended by petitioners, neither express statutory authority, nor case law, authorizing the city to proceed in eminent domain against property located outside its corporate limits, it would seem that prohibition would lie inasmuch as the trial court would then have no jurisdiction to proceed in the eminent domain action against these petitioners. In Redlands High Sch. Dist.

The city contends that it has the implied power to prosecute an eminent domain action against property outside its municipal boundaries and relies upon the City of Pasadena v. Stimson, 91 Cal. 238 [ 27 P. 604 ]. The Pasadena case involved a proceeding under section 1237 et seq. of the Code of Civil Procedure by the city to condemn a right of way for an outfall sewer from the city of Pasadena to a tract of land outside the city limits. The court there pointed out that one “main proposition” relied upon was that a municipal corporation of the fifth or sixth class must, as a condition precedent to invoking the exercise of the power of eminent domain, make an unavailing effort to agree with the owner of the property or right which it seeks to acquire, and consequently that it must, in any condemnation proceeding, allege and prove that it has made that effort. The court held that this condition destroyed the uniform operation of a general law “and is special in a ease where a general law not only can be made applicable, but in which a general law had been enacted, and in which there is no conceivable reason for discrimination.” The court cited section 1001 of the Civil Code which provides that any person may acquire private property for any use specified in section 1238 of the Code of Civil Procedure; and section 14 of the Civil Code which provides that a private or public corporation is a “person,” and section 1238 of the Code of Civil Procedure which includes “sewerage” as one of the purposes for which private property may be taken. While the power of Pasadena to exercise eminent domain outside its corporate limits was not discussed in the opinion, the case inferentially stands for the proposition that it does have the power. However, in Mulville v. City of San Diego, 183 Cal. 734 , 737 [ 192 P. 702 ], the question of the power of a city to exercise eminent domain outside its boundaries was indirectly involved. It was there said: “In general, a municipality is competent to act beyond its boundaries only in those cases in which it is so empowered by

The city relies on section 1238.1 of the Code of Civil Procedure which provides:

“Subject to the provisions of this title, the right of eminent domain may be exercised in behalf of the following .public uses:

“1. Off-street parking. Off-street motor vehicle parking places, including property necessary or convenient for ingress thereto or egress therefrom, established by any city or city and county for public use.”

The city’s argument is that the above section of the Code of Civil Procedure, taken together with sections 37351 and 37353 of the Government Code, authorize it to acquire property outside its corporate boundaries. Section 37351 provides in part: 1 ‘ The legislative body may purchase, lease, or receive such personal property and real estate situated inside or oiitside the city limits as is necessary or proper for municipal purposes. ...” (Emphasis added.) Section 37353 provides in part: ‘ ‘ The legislative body may acquire property needed for: (a) Parking motor vehicles.” It is claimed that these sections and section 1001 of the Civil Code show that the subject of boundaries is extraneous to the exercise of the power of eminent domain except for the situation set forth in subdivision 2 of section 1241. Section 1241 provides that when two-thirds of the legislative body of certain municipal corporations, including cities, pass a resolution or ordinance finding that the public interest and necessity require the taking, that finding is conclusive evidence on the question of necessity as to property within the city. The section also provides that “said resolution or ordinance shall not be such conclusive evidence in the ease of the taking by any county, city and county, or incorporated city or town, or school district, or irrigation, public utility, or water district, of property located outside of the territorial limits thereof.” (Emphasis added.) It is contended that by “clear implication,” the sections authorize the exercise of the power outside the cor

A liberal construction of the word “purchase” found in section 37351 of the Government Code could, conceivably, lead to the conclusion that the city of Hayward had statutory authority to exercise its power of eminent domain outside its corporate limits. However, if we are to follow the rule of strict construction found in the case of City of Madera v. Black, supra, 181 Cal. 306 , 312 (as heretofore set forth), we cannot say that the word “purchase” expressly authorizes the city to take private property for off-street parking outside its boundaries by eminent domain proceedings.

Let the writ issue as prayed for.

Gibson, C. J., Shenk, J., Traynor, J., Schauer, J., and Spence, J., concurred.