Majority
This is an appeal from a judgment denying a peremptory writ of mandate, denying a writ of review and discharging a temporary stay order, and for costs in favor of respondent. The judgment was rendered upon the conclusion reached by the trial court that quo warranto was the sole remedy available to appellant county to test the validity of the annexation proceeding.
The controversy rests in the following background: Appellant, County of Los Angeles, was the owner of a parcel of land within its boundaries known as Alondra Park, which had been designated by the board of supervisors as a regional park. The park was contiguous to the boundaries of the respondent City of Lawndale, a municipal corporation organized under the general laws, and such park was uninhabited territory as defined by article V, title 4, division 2 of the Government Code.
The City of Lawndale, desirous of annexing the park did on June 20, 1960, legally adopt a resolution initiating such proceedings and fixed the time of 8 p. m. on August 1, 1960, for the hearing of protests. The proceeding was designated as “Annexation No. 4.” The city council met at the appointed time and adjourned to the hour of 3 p. m. on August 2, 1960, for the purpose of further considering and ruling on a written protest which had been filed by one Cecil B. Hollingsworth, designated in the minutes of the meeting of August 1, 1960, as “lessee of Alondra Park County Club, Inc.” At the meeting on August 2,1960, the city council found that no protests to the annexation had been filed and thereupon there was
“Section 6. This Ordinance is hereby declared to be an urgency measure required for the immediate preservation of the public peace, health and safety, and shall take effect and be in force from and after its passage and filing, as required by law. The following is a specific statement showing the urgency of this Ordinance: That valuable buildings, extensive public recreational facilities and potentially dangerous conditions are maintained upon said property and that it is essential that maximum police, fire and municipal type protection be given to said area immediately because of said activity.
“Section 7. The City Clerk shall certify to the adoption of this Ordinance and cause the same to be published or posted in the manner required by law and this Ordinance shall take effect immediately upon its adoption.”
In the meantime, and on July 26, 1960, the board of supervisors of appellant county, in regular session, adopted a resolution protesting the proposed annexation. After the adoption thereof, and on the same day, the chief deputy clerk of the board told the city clerk of the respondent city that such a resolution had been adopted, showed the original thereof to the city clerk and offered then and there to deliver a certified copy of such resolution to him. The city clerk stated that he could not wait for such copy and that the City of Lawndale would accept and honor any protest received through the United States mail. (See petition and findings.) The chief deputy clerk of the board of supervisors then told the city clerk that such protest would be mailed to the city. On July 26, 1960, a certified copy of the resolution of protest was deposited in the United States mail as certified mail, return receipt requested, addressed to the city council of respondent city at the latter’s proper address. On July 28, 1960, an employee of the post office in the City of Lawndale took the letter of protest to the office of the city clerk but was unable to deliver it because of his arrival prior to the hour at which the office normally was open. Such postal employee then took the letter back to the local post office after having left at the office of the city clerk a form notice of certified mail on hand. Such notice was a standard form which
The petition for writ of review and mandate was filed on August 30, 1960, and the alternative writ was issued the same day. Under these circumstances it appears that the city had actual notice of the protest through a responsible officer, and represented that it would treat it as having been properly filed if received through the United States mail. The county in reliance upon this representation, placed the protest in the mail in time for it to have reached the city council before the expiration of the time allowed for the filing of protests. The trial court found that on July 28, 1960, a postal employee left at the office of the city a standard form notice in which it was stated that an attempt had been made to deliver certified mail and that the addressee should call for it at a designated local post office. It was further found that neither the city clerk nor any other officer or employee of the city, nor anyone else, attempted to gain possession of the letter until August 5, 1960. It is manifest that the protest would have been before the city council at its meeting of August 1, 1960, if the city had heeded the notice left at its office. Under such circumstances the city cannot take advantage of its own fault. The governing bodies of municipalities stand in a different and higher category from that of mere employees and directors of a private corporation. Whatever other functions they may be called upon to perform, members of a municipal council or other public body are at all times trustees of the public welfare. Obviously, such trusteeship does
Under the circumstances here shown, there was sufficient compliance by the county with the provisions of section 35312, Government Code, to place its protest on file prior to the time set for the hearing of such protests, and it was the duty of the city council to take cognizance of it. (Gov. Code, § 35313; City of El Monte v. City of Industry, 188 Cal.App.2d 774 , 780 [ 10 Cal.Rptr. 802 ].) Such protest being properly before the city council operated as a bar to any further proceedings in the matter of the annexation of appellant’s property, and the city had no alternative but to abandon such proceedings. (Heller v. City Council, 157 Cal.App.2d 441 , 446 [ 321 P.2d 97 ] ; People v. City of Richmond, 141 Cal.App.2d 107 , 116 [ 296 P.2d 351 ] ; American Distl. Co. v. City Council, Sausalito, 34 Cal.2d 660 , 665 [ 212 P.2d 704 , 18 A.L.R.2d 1247 ].)
The annexation of territory to a city is governed by the general laws of the state and is not a municipal affair (County of San Mateo v. City Council, 168 Cal.App.2d 220 [ 335 P.2d 1013 ]), and where a city council proceeds under legislative requirements relating to annexation, such requirements constitute the measure of power to be exercised. (Kleiber v. City & County of San Francisco, 18 Cal.2d 718 , 724 [ 117 P.2d 657 ] ; American Distl. Co. v. City Council, Sausalito, supra, 34 Cal.2d 660 , 664; Morin v. City Council, 109 Cal.App.2d 268 [ 240 P.2d 688 ].)
The effective date of a eitjr ordinance is governed by section 36937 of the Government Code, which provides in part as follows: “Ordinances take effect 30 days after their final passage. An ordinance takes effect immediately, if it is an ordinance: . . . (b) For the immediate preservation of the public peace, health or safety, containing a declaration of the facts constituting the urgency, and is passed by a four-fifths vote of the city council.” Here the city council undertook to pass the ordinance of annexation as an urgency measure so as to make it effective on the date of its passage, by declaring that an emergency existed which required it to act to preserve
It further appears that the ordinance of annexation was first introduced in the city council on August 2, 1960, and was adopted on the same date. Section 36934 of the Government Code requires a waiting period of five days from the date of the introduction of such an ordinance, it not being an urgency measure, and the date of its passage. In adopting the annexation ordinance in violation of the clear mandate of the law, the city council of respondent city acted in excess of the power granted by the Legislature in annexation proceedings. Such ordinance was void and could not have been the basis for the assertion of any right under the law to annex
The judgment is reversed and the cause is remanded with directions to the trial court to enter judgment annulling the annexation proceedings.
A petition for a rehearing was denied April 23, 1962, and respondent’s petition for a hearing by the Supreme Court was denied May 23, 1962.
Cases cited
- Hubbell v. City of Los Angeles 142 Cal. App.2d 1 p. 25
- City of El Monte v. City of Industry 188 Cal.App.2d 774 at 780 p. 25
- Heller v. City Council 157 Cal.App.2d 441 at 446 p. 25
- People ex rel. Pennington v. City of Richmond 141 Cal.App.2d 107 at 116, at 117 p. 25, p. 26
- American Distilling Co. v. City Council of Sausalito 34 Cal.2d 660 at 665, at 664, at 666 p. 25, p. 26
- County of San Mateo v. City Council 168 Cal.App.2d 220 p. 25
- Kleiber v. City & County of San Francisco 18 Cal.2d 718 at 724 p. 25
- Morin v. City Council 109 Cal.App.2d 268 p. 25
- Miller v. Fowle 92 Cal.App.2d 409 at 411 p. 26
- City of Oakland v. Brock 8 Cal.2d 639 at 641 p. 26
- In re Kazas 22 Cal.App.2d 161 at 167 p. 26
- In re Newell 188 Cal. 762 p. 26
- In re Hoffman 155 Cal. 114 p. 26
- Morgan v. City of Long Beach 57 Cal.App. 134 at 139 p. 26
- City of Anaheim v. City of Fullerton 102 Cal.App.2d 395 at 401 p. 26
- Jefferson Union School District v. City Council 129 Cal.App.2d 264 p. 26
- San Pedro, Los Angeles & Salt Lake Railroad v. City of Long Beach 172 Cal. 631 at 634 p. 27