Majority
By petition for writ of certiorari or prohibition or mandate the People of the State of California, acting by and through the State Lands Commission, seek review of an order of the trial court which, in response to a motion for summary judgment interposed by real party in interest Albany Land Fill Corporation, as an intervening plaintiff in a action for declaratory relief filed by real party in interest City of Albany, denied the motion for summary judgment, found that the State Lands Commission was not composed as required by law when it made the finding that was the subject of the action filed in the court below, and ordered that the matter the subject of the commission’s finding be remanded to the commission and that the commission proceed forthwith to a rehearing of its previous decision. On consideration of the petition[1] and the opposition thereto filed by real parties in interest, an alternative writ of mandate issued ordering the trial court to vacate the foregoing order, to deny intervener’s motion for summary judgment and to proceed to hear the pending action on its merits, or to show cause why such action had not been taken. Returns having been filed by real parties in interest, the matter was argued and has been submitted.
It is concluded that petitioner is entitled to a peremptory writ because the order was improperly made without a factual basis to support the finding that the commission was improperly composed, and was beyond the scope of the prayer for summary judgment.
Historically the facts relevant to the controversy go back to 1919 when the Legislature granted to the city “all the right, title and interest of the State of California, held by said state by virtue of its sovereignty in and to
1 Following the filing of the petition and pursuant to the prayer contained therein this court issued the following order, “Pending the further order of the court, the real party in interest and intervener in Alameda County Superior Court Action No. 428396, City of Albany v. People of the State of California, are ordered restrained from any fill activity relating to the certain tide and submerged lands within San Francisco Bay granted in trust to the City of Albany by the State of California by chapter 211, Statutes of 1919.” A dispute arose as to the meaning of “fill activity” and the matter was presented to the court at the time of the hearing on the merits of the petition through a motion made by petitioner and opposition filed by real parties in interest. The parties were directed to prepare an appropriate order which would permit some deposit of fill material on land already filled above high water mark insofar as the same could be accomplished without substantially changing the status quo.
In 1961 the foregoing statute was amended to increase the purposes for which the lands could be used, to lengthen the period of permitted franchises or leases to 66 years, and by the addition of other provisions and conditions. (Stats. 1961, ch. 1763, § 1, p. 3767.) The last paragraph of this statute (erroneously designated as a second “(g)” although it follows paragraph “(i)”) provides: “(g) That within 10 years from the effective date of the amendment of this section made at the 1961 Regular Session of the Legislature said lands shall be substantially improved by said city without expense to the State, and if the State Lands Commission determines that the city has failed to improve said lands as herein required, the authorization to use said lands for such additional purposes shall automatically terminate and lapse.” (Id., p. 3770.)
On March 23, 1972, the staff- of the commission held a public hearing in the City of Albany. A report predicated on facts adduced at that hearing and from other investigations made by its staff was submitted to the commission at a meeting in Sacramento on May 24, 1972. The minutes of the meeting reflect that the following members of the commission[2] were pres
2 The State Lands Commission formerly in the Department of Finance and since 1969 (Stats. 1969, ch. 138, § 190, p. 339) in the Department of Conservation, consists of the State Controller, the Lieutenant Governor, and the Director of Finance. (Pub. Resources Code, § 6101.) Since June 30, 1967 (Stats. 1967, ch. 450, §§ 1 and 2, p. 1661) section 7.6 of the-Government Code has provided in pertinent part as follows: “The Lieutenant Governor may designate any person in his office holding a position specified in subsection (5) of subdivision (a) of Section 4 of Article XXIV of the Constitution to act as a deputy for the purposes of this section only, provided that the Lieutenant Governor may not appoint a person to act as a deputy for him at meetings of the Senate, or the State Lands Commission or of the Regents of the University of California, or of the Trustees of the California State Colleges.” (Italics added.) (Cf. Op. No. 59-80, July 16, 1959; 34 Ops.Cal.Atty.Gen. 25. See also Op. No. CV 72-198, Sept. 26, 1973; 56 id. 399; and Op. No. 67-239, Nov. 28, 1967, 50 id. 120.)
On June 7, 1972, the city petitioned the commission for “a reconsideration of its decision by two of the members of the Commission on May 24, 1972 . . . .” No mention was made of any alleged illegal composition of the commission in that letter, or in a subsequent letter and enclosed affidavit of the president and sole shareholder of the intervening corporation. On August 31, 1972, the commission denied the request for reconsideration. According to the complaint and the complaint in intervention below, there were only two members of the commission present, of whom only one was present at the May 24, 1972, meeting. It would therefore, appear that the Lieutenant Governor voted against reconsideration.
On September 29, 1972, the city filed a complaint for declaratory relief in which it set forth generally the steps taken by the city to improve the lands the subject of the state grant, the action by the commission, and the existence of a dispute between the city and the commission as to what factors should be considered in determining whether the lands have been “substantially improved” as required by the statutory grant. The city further claimed that the statutory phrase was unconstitutionally vague, that it was
3 The resolution reads: “THE COMMISSION [H] 1. FINDS THAT THE CITY OF ALBANY HAS FAILED TO IMPROVE SUBSTANTIALLY THE LAND GRANTED TO IT AS REQUIRED BY SECTION 1(g) OF CHAPTER 1763, STATUTES OF 1961. SUCH FINDING UNDER THE TERMS OF SECTION 1 (g) WOULD RESULT IN AN AUTOMATIC REVOCATION, BY OPERATION OF THE STATUTE, OF THE AUTHORIZATION TO USE SAID LANDS FOR THE ADDITIONAL PURPOSES STATED THEREIN. [H] 2. AUTHORIZES THE EXECUTIVE OFFICER TO NOTIFY THE CHIEF CLERK OF THE ASSEMBLY, THE SECRETARY OF THE SENATE, AND THE CITY OF ALBANY, THAT THE COMMISSION HAS MADE AN INVESTIGATION OF SUBSTANTIAL IMPROVEMENT, AS REQUIRED BY THE GRANT STATUTE, AND FINDS THAT THE CITY OF ALBANY HAS FAILED TO IMPROVE SUBSTANTIALLY THE LAND WITHIN THE TERMS OF SECTION 1(g), CHAPTER 1763, STATUTES OF 1961. [1] 3. AUTHORIZES THE STATE LANDS DIVISION TO AUDIT THE ACCOUNTS, REVENUES, AND EXPENDITURES RELATING TO THE TIDELAND TRUST OF THE CITY OF ALBANY TO DETERMINE WHAT RIGHTS AND/OR OBLIGATIONS MAY EXIST WITH REGARD TO THE GRANTEE AND THIRD PARTIES SO AS TO ENABLE THE STATE LANDS COMMISSION TO DETERMINE ANY FUTURE COURSE OF ACTION WITH RESPECT TO THE TIDELANDS.”
On December 13, 1972, the corporation filed its complaint in intervention, in which it set forth its interest under a 10-year contract with the city entered into January 1, 1964, which contained an option for renewal for another 10-year term. The complaint generally follows the allegations and prayer of the city’s complaint.
The commission’s motions to strike portions of each complaint were continued from time to time and ultimately ordered to be heard at the time of trial. On February 13, 1973, both the city and the corporation amended their complaints to allege the invalidity of the composition of the commission at its May 24, 1972, meeting.[4]
On April 13, 1973, the intervener filed a notice of motion “for an order declaring the decision of May 25, 1972 (sic, May 24, 1972) by the State Lands Commission null and void and entering judgment in favor of Intervener.” The motion was interposed on the ground that the commission was improperly constituted at its meeting in which the plaintiff’s and intervener’s rights were determined. In support of the motion the city attorney and the president and owner of the intervener corporation, each alleged: “3. The Commission on said date was comprised of three (3) persons, to
4 Each amendment reads: “That the meeting of the State Lands Commission on May 25, 1972, wherein the said Commission allegedly determined that the plaintiff had not substantially improved said lands, and thus the additional land uses of the 1961 Grant were terminated, was illegally constituted and the decision therein void and of no force or effect by reason of the following: That at said meeting, the Lt. Governor was not present, and a Deputy had been appointed to act in his place and stead, and did, in fact, participate in the place of the Lt. Governor as a member of the three-man Commission, all of which is contrary to law, and particularly Section 7.6 of the Government Code of the State of California.” Each prays, “That the Court declare that the meeting of defendant on May 25, 1972, was illegally constituted, and the subject decision therein void.”
In opposition the commission submitted the declaration of an administrative assistant to the Lieutenant Governor who stated, “On May 24, 1972, the Lieutenant Governor was unable to attend the meeting of the State Lands Commission and requested that I attend said meeting to represent him at the. meeting. I have often represented the Lieutenant Governor at these meetings so that he can be kept informed of the transactions of the Commission when he is unable to attend. At the Commission meetings which I attend, I have often participated in the discussions concerning the matters before the Commission. However, both the Lieutenant Governor and myself are well aware that I cannot vote on Commission matters and I do not vote, [f] At the meeting on May 24, 1972, I participated in the hearing concerning the Albany tidelands question, as any member of the public is allowed to do under Commission procedures. I did not vote on the question of whether the City of Albany had substantially improved the tidelands granted to them.”
A further declaration by the acting executive officer of the commission reflects that he was present at the May 24,1972, meeting. He stated: “In the absence of the Lieutenant Governor, Mr. Tweedt usually attends the meetings of the Commission. At the meeting of May 24, 1972, as well as all Commission meetings that Mr. Tweedt attends, he did not vote on any of the matters that came before the Commission. [H] It has been the practice of the Commission to at times allow legislators to sit with them and participate in the discussion of matters before the Commission. However, the legislators, of course, are not allowed to vote, [f] Mr. Tweedt did par
The deputy attorney general representing the commission averred, “At said meeting, the Lieutenant Governor was not present, but Peter Tweedt sat with the Commission representing the Lieutenant Governor. Mr. Tweedt participated minimally in the presentation to the Commission. Mr. Tweedt did not vote on any matter before the Commission.”
A certified copy of the minutes of the meeting lists the two members present, five staff members in attendance, and, as also in attendance, a state senator, an administrative assistant to the Lieutenant Governor, and three deputy attorneys general. Eight persons, including the aforementioned senator and the city attorney, were heard with respect to the City of Albany grant.
Following a hearing on April 25, 1973, the court expressed its ruling from the bench and the Attorney General sought to provide an order embodying the views of the court.[5] This order was not signed and the court on May 9, 1973, signed and filed the order bearing the card of the attorneys for the intervener which is the subject of this proceeding.[6]
5 The proposed order read in pertinent part, “It Is Ordered that the motion for summary judgment shall be treated as a demurrer to the answer. The demurrer is sustained on the grounds set forth in said motion for summary judgment and defendant is hereby granted 30 days in which to amend its answer so as to allege that the State Lands Commission has reconsidered Item No. 7 on its calendar of May 24, 1972 (Minute Item No. 24), at a proceeding at which the Lieutenant Governor sits as a member of said Commission or at which the decision is reached without consultation with any representative of the Lieutenant Governor or any such representative sitting with the Commission. [1¡] If defendant fails to amend its answer herein within the time specified or elects to stand on its answer without amending, a judgment will be entered forthwith.”
6 The order signed and filed reads in part: “The Court finds that the State Lands Commission which purportedly made a finding on the 24th of May, 1972, that the tidelands described in Chapter 1763 Statutes of 1961 had not been substantially improved as required by said Grant and therefore the additional uses granted to the City by the 1961 Statute had lapsed, was not composed as required by law and that therefore the action of said Lands Commission should be referred back by this Court to the Commission for further proceedings. [1¡] It Is Therefore Ordered that said matter be remanded to the State Lands Commission and said Lands Commission is ordered to proceed forthwith to a rehearing of its previous decision and in accordance *736 with the provisions of the State Constitution and Section 7.6 of the Government Code. [11] It Is Further Ordered that the motion for summary judgment on behalf of plaintiff in intervention is hereby denied without prejudice.”
I
n its motion for summary judgment the intervener prayed for an order declaring the decision by the commission null and void and for a judgment in its favor. Reading between the lines it appears that the trial court, in a well intentioned but misguided effort to avoid the delays attendant to an appeal, made a finding as requested but denied the prayer for judgment, and ordered the commission to hold a rehearing. This left the pending action in limbo. The commission could not secure review of the court’s finding by appeal as would have been the case had the court entered a judgment. If it acquiesced in the court’s decision it was admitting a finding which would throw a cloud on all proceedings taken on May 24, 1972, and perhaps those taken on other occasions when similar courtesies were extended to a representative of an absent member. Moreover, any attack on a decision made after such a rehearing would involve a review of the matters presented to the commission at that time, and render the present action moot. In substance the court has rendered a judgment in favor of the city and the intervener on the ground that the action of the commission was void, and yet at the same time denied the commission a right to secure a review of that order by denying the intervener’s prayer for summary judgment.
It appears that in this case the court properly denied the motion for summary judgment. Under any construction of the declarations before the court there was at least a question of fact as to whether the acknowledged representative of the Lieutenant Governor had been appointed “to act as a deputy for him [or had acted as á deputy for him] at meetings of . . . the State Lands Commission.” (Gov. Code, § 7.6, see fn. 2 above; and cf. part II below.) Under the provisions of section 437c of the Code of Civil Procedure a summary judgment cannot be granted a party who “by . . . affidavits shall show such facts as may be deemed by the judge hearing the motion sufficient to present a triable issue of fact.” If the affidavits or declarations show such an issue it is an abuse of discretion to grant the motion and to order judgment. (See Stationers Corp. v. Dun & Bradstreet, Inc. (1965) 62 Cal.2d 412 , 417 [ 42 Cal.Rptr. 449 , 398 P.2d 785 ]; Koret of Cal., Inc. v. City etc. of San Francisco (1969) 2 Cal.App.3d 87 , 91 [ 81 Cal.Rptr. 698 ]; Bewley v. Riggs (1968) 262 Cal.App.2d 188 , 193 [ 68 Cal.Rptr. 520 ]; and Saporta v. Barbagelata (1963) 220 Cal.App.2d 463 , 468-469 [ 33 Cal.Rptr. 661 ].)
The city and the intervener contend that the commission has waived any objections to the order of the trial court because it did not attack the order in that forum, and in fact offered to prepare an order of similar tenor. The latter contention cannot be sustained. (Cf. fn. 5 with fn. 6.) The commission could have refused to amend and suffered judgment under its order and then appealed. The court’s order contains no such alternative.
In Schaeffer v. Municipal Court (1968) 260 Cal.App.2d 819 [ 67 Cal.Rptr. 479 ], the court supported appellant’s contention “that the superior court exceeded its jurisdiction in issuing the writ [of prohibition] without inquiry or showing that the jurisdictional question was first raised by plea, demurrer or other objection before the municipal court and there determined adversely to respondent.” (260 Cal.App.2d at p. 821.) In this case, however, the issue raised by interveners’ motion was heard and argued before the lower court, and there is no requirement that the aggrieved party seek a rehearing under such circumstances.
In Neal v. State of California (1960) 55 Cal.2d 11 [ 9 Cal.Rptr. 607 , 357 P.2d 839 ], the court stated, “Although a writ of mandamus may issue to vacate a judgment entered by a court that lacked jurisdiction, a motion to vacate such judgment must first be made in the court that entered the judgment, and a denial of such motion must be appealed in the regular manner. [Citations.]” (55 Cal.2d at p. 16.) Here, as has been pointed out
II
Intervener also suggests that the commission is not entitled to any relief because it has not been prejudiced by the court’s order. On the merits of the issue raised by the order it is clear that the commission has been prejudiced by the denial of a trial on the merits of that issue, and by a possible erroneous conclusion of law with respect to that issue. (See part III infra.) Moreover, if the commission is denied relief in these proceedings and it seeks to carry out the mission assigned it by the 1961 legislation, it cannot stand on the proceedings already taken but will have to conduct a rehearing. It is entitled to a determination as to whether it has properly been ordered to forego any or all of the foregoing rights.
Real parties in interest contend that the alternative writ should be denied because the order was proper in any event. In Fascination, Inc. v. Hoover (1952) 39 Cal.2d 260 [ 246 P.2d 656 ], the court stated: “. . . it is settled that where determinative powers are vested in a local administrative agency and the court finds its decision lacks evidentiary basis, a hearing was denied or it was otherwise erroneous, it is proper procedure to remand the matter to the agency for further and proper proceedings rather than for the court to decide the matter on the merits.” (39 Cal.2d at p. 268. See also National Auto. & Cas. Ins. Co. v. Downey (1950) 98 Cal.App.2d 586 , 594 [ 220 P.2d 962 ].) It undoubtedly would have been a proper judgment to remand the matter to the commission, if the court’s finding could be sustained on the facts in the declarations before it on the motion for summary judgment. Such a judgment was not granted, and therefore the argument that “The
Similar considerations apply to the contention that section 475 of the Code of Civil Procedure[7] furnishes authority for the order made in this case. It is apparently contended that the court could order such a hearing because the rehearing would remove from the controversy the issue of whether the commission, which passed on the principal question of the sufficiency of the improvements, was properly constituted. It is pointed out that such a hearing could be held in approximately 30 days, whereas an appeal from a summary judgment would, and these proceedings will, consume a more appreciable period of time. The mere existence of a controversy cannot, however, give rise to power to require one party to surrender his views concerning that controversy without final adjudication that such views are erroneous. The court here purported to make such an adjudication. The commission could either accept it, or seek review in the manner which it has.
in
In this case it would suffice to vacate so much of the order as purports to order the commission to hold a rehearing, and to direct the trial court to hold a hearing on the merits of the issues raised by the complaints and the answers, and by the commission’s undisposed of motion to strike. The parties, however, have briefed and argued the merits of the question of the legality of the composition of the commission in the light of the provisions of section 7.6 of the Government Code (see fn. 2 above). It is conceded by the city and the intervener that there is no evidence that the Lieutenant Governor’s representative voted on the resolution which resulted
7 Code of Civil Procedure section 475 provides: “The court must, in every stage of an action, disregard any error, improper ruling, instruction, or defect, in the pleadings or proceedings which, in the opinion of said court, does not affect the substantial rights of the parties. No judgment, decision, or decree shall be reversed or affected by reason of any error, ruling, instruction, or defect, unless it shall appear from the record that such error, ruling, instruction, or defect was prejudicial, and also that by reason of such error, ruling, instruction, or defect, the said party complaining or appealing sustained and suffered substantial injury, and that a different result would have been probable if such error, ruling, instruction, or defect had not occurred or existed. There shall be no presumption that error is prejudicial, or that injury was done if error is shown.”
The issue, as framed most favorably for the city and intervener from the declarations submitted on their behalf, is whether the resolution adopted by the vote of two commissioners on May 24, 1972,[8] was adopted by an illegally comprised State Lands Commission because an administrative assistant to the Lieutenant Governor “sat behind the bench reserved for the commission”-with the two commissioners who were duly designated by law, “asked questions of the people presenting evidence on the issue at hand, made comments concerning the evidence, and in all other ways fully participated in the conduct of the meeting.”
Preliminarily real parties in interest are faced with the contention that by failure to interpose an objection to the conduct of the absent member’s representative they are estopped to subsequently assert that his actions rendered him a member of the commission. Intervener claims it could not have waived the right to assert the illegal composition of the commission because it made no formal 'appearance at the hearing. Nevertheless, intervener’s president and sole owner signed one of the declarations concerning the conduct of that meeting in which he alleged he attended and was present. He and the city attorney each did further allege, “At no time before or during the public meeting aforesaid was it announced or in any other way brought to the public’s attention that this ‘unknown’ Commissioner had no status on the Commission and was not entitled to conduct the meeting and for all respects to be treated as a legitimate Commissioner. I did not know that said ‘unknown’ Commissioner was without status to sit as a Commissioner, nor did anyone else whom I spoke to concerning the meet
8 The allegations “To the best of my knowledge and belief, the ‘unknown’ Commissioner joined in that conclusion and vote” contained in the declaration of the city attorney and the declaration of the president and owner of intervener are disregarded because they are not within the personal knowledge of either declarant, because they are contradicted by the record, and because it has been conceded that there is no evidence to show that the representative of the Lieutenant Governor did vote.
A more serious hurdle is posed by the fact that the Lieutenant Governor on August 31, 1972, apparently participated in denying reconsideration with one of the members of the commission who had voted for the resolution at the earlier hearing. This action would appear to be a ratification of the action taken on May 24, 1972, which would cure the alleged defect now asserted by real parties in interest, and in any event render inutile a further rehearing as ordered by the court. The contention that no identical two commissioners were present at each of the meetings is rendered meaningless by the provisions of section 6105 of the Public Resources Code which authorize any two members of the commission present at a meeting to take action by resolution.
In any event it is clear that the facts before the trial court did not sustain the finding that the commission was improperly composed on its meeting on May 24, 1972. The statute states, “. . . the Lieutenant Governor may not appoint a person to act as a deputy for him at meetings of . . . the State Lands Commission.” It is generally understood that there is a distinction between an employee, agent or representative and a deputy. “A deputy, by the very act and authority which constitutes him such, has power to do any act which his principal may do, and to do the act in his principal’s name.” (Foucht v. Hirni (1922) 57 Cal.App. 685 , 692 [ 208 P. 362 ]. See also Sarter v. Siskiyou County (1919) 42 Cal.App. 530 , 536 [ 183 P. 852 ].) There is nothing in the record to show that the Lieutenant Governor, or the two members of the commission present, or anyone else authorized the representative to act as a deputy for the Lieutenant Governor in the official acts of the commission.
The fact that as a courtesy the representative was permitted to sit with
Plaintiff and intervener rely upon the general principle enunciated in Wm. Cramp Sons v. Curtiss Turbine Co. (1913) 228 U.S. 645 [ 57 L.Ed. 1003 , 33 S.Ct. 722 ] where the court remanded the case to the then United States Circuit Court of Appeals because the presence of a district court judge, who had originally heard the case and entered the original decree, on the three judge panel rendered the Court of Appeals “a court organized not in conformity to law, but in violation of the express provisions of the statute.” (228 U.S. at pp. 650-652 [57 L.Ed. at pp. 1009-1010]. See also Nider v. Homan (1939) 32 Cal.App.2d 11 , 13-15
9 It may be noted that section 6109 of the Public Resources Code formerly provided, “All meetings of the commission shall be open and public.” In 1967 this section was repealed and the meetings of the commission are controlled by the provisions of article 9 of chapter 1 of part 1 of division 3 of the Government Code sections 11120-11131. (Stats. 1967, ch. 1656, § 100, p. 4024 and § 122, p. 4026 et seq. and amendments thereto.) Pertinent provisions are as follows: Section 11120: “It is the public policy of this state that public agencies exist to aid in the conduct of the people’s business and the proceedings of public agencies be conducted openly so that the public may remain informed. [f] In enacting this article the Legislature finds and declares that it is the intent of the law that actions of state agencies be taken openly and that their deliberation be conducted openly.” Section 11122: “As used in this article ‘action taken’ means a collective decision made by the members of a state agency, a collective commitment or promise by the members of the state agency to make a positive or negative decision or an actual vote by the members of a state agency when sitting as a body or entity upon a motion, proposal, resolution, order or similar action.” Section 11123: “All meetings of a state agency shall be open and public and all persons shall be permitted to attend any meeting of a state agency except as otherwise provided in this article.”
Even if it be assumed that any participation would be deemed to taint a multiperson judicial body, it is clear that such participation does not taint the action of a legislative or quasi-legislative body which is supported by the requisite vote of duly qualified members of that body. In County of Orange v. Heim (1973) 30 Cal.App.3d 694 [ 106 Cal.Rptr. 825 ], as in this case, the state had made a limited grant of tidelands and submerged lands in 1919 (30 Cal.App.3d at pp. 700-701), and subsequently in 1957 passed further less restrictive legislation and delegated to the State Lands Commission the power to approve and concur in alienation of a certain portion of the lands upon making certain findings. (Id., p. 702.) In construing the power and authority of the commission in that case the court observed, “. . . as respects the tidelands to be filled and reclaimed in the future, chapter 2044 constitutes simply a delegation of legislative authority to the SLC to make the necessary finding of ‘uselessness’ when the plan of harbor development and the land exchange agreement had been fully formulated by County, Harbor District and Irvine. . . . administration of the tidelands trust is a legislative function. We think it beyond question that the determinations of the SLC pertaining to administration of the trust pursuant to an express delegation of authority from the Legislature must be classified as quasi-legislative in character.” (30 Cal.App.3d at pp. 717-719, passim. See also Quinchara v. Board of Trustees (1896) 113 Cal. 664 , 669-671 [ 45 P. 856 ]; People v. Oak. Board of Education (1880) 54 Cal. 375 , 376-377; Wilson v. Hidden Valley Mun. Water Dist. (1967) 256 Cal.App.2d 271 , 278-281 [ 63 Cal.Rptr. 889 ]; City Council v. Superior Court (1960) 179 Cal.App.2d 389 , 393-399 [ 3 Cal.Rptr. 796 ]; and
Since the proceedings are quasi-legislative in character, the fact the resolution was adopted by at least two members of the commission who were present at the meeting (Pub. Resources Code, § 6105) rendered it legal even if a disqualified person had not only participated but also had purported to vote in support of the resolution. (See City Council v. Superior Court, supra, 179 Cal.App.2d 389 , 404-405; Sladovich v. County of Fresno, supra, 158 Cal.App.2d 230 , 241; and Nider v. Homan (1939) 32 Cal.App.2d 21 , 24 [ 89 P.2d 136 ], Note also Bracey v. Gray, supra, 71 Cal.App.2d 206 , 210.)
The trial court erred in finding, on the evidence before it, that the commission was illegally composed when it adopted its resolution on May 24, 1972.
Let a peremptory writ of mandate issue ordering respondent court to vacate so much of its order of May 9, 1973, as purports to order the petitioning commission to conduct a rehearing of the matter under review in the action pending in the trial court and to proceed with the trial of that action in accordance with the views expressed herein. The petition insofar as its seeks writs of prohibition and certiorari is dismissed as moot.
Molinari, P. J., and Elkington, J., concurred.
The petition of the real party in interest City of Albany for a hearing by the Supreme Court was denied March 27, 1974.
Cases cited
- Stationers Corp. v. Dun & Bradstreet, Inc. 62 Cal.2d 412 at 417 p. 736
- Koret of California, Inc. v. City & County of San Francisco 2 Cal.App.3d 87 at 91 p. 736
- Bewley v. Riggs 262 Cal.App.2d 188 at 193 p. 736
- Saporta v. Barbagelata 220 Cal.App.2d 463 at 468-469 p. 736
- Field Research Corp. v. Superior Court 71 Cal.2d 110 at 111 p. 737
- Morrison Drilling Co. v. Superior Court 208 Cal.App.2d 740 at 744 p. 737
- Schaeffer v. Municipal Court 260 Cal.App.2d 819 p. 737
- Neal v. State 55 Cal.2d 11 p. 737
- Phelan v. Superior Court 35 Cal.2d 363 p. 738
- Fascination, Inc. v. Hoover 39 Cal.2d 260 p. 738
- National Automobile & Casualty Insurance v. Downey 98 Cal.App.2d 586 at 594 p. 738
- In re Bar Ass'n v. Cantrell 53 Cal.App. 758 at 760 p. 739
- County of Santa Clara v. Superior Court 4 Cal.3d 545 at 552 p. 740
- Foucht v. Hirni 57 Cal.App. 685 at 692 p. 741
- Sarter v. Siskiyou County 42 Cal.App. 530 at 536 p. 741
- William Cramp & Sons Ship & Engine Building Co. v. International Curtiss Marine Turbine Co. 228 U.S. 645 p. 742
- Nider v. Homan 32 Cal.App.2d 11 at 13-15, at 15-16 p. 742, p. 744
- Oakley v. Aspinwall 3 N.Y. 547 at 553-555 p. 743
- County of Orange v. Heim 30 Cal.App.3d 694 p. 743
- Quinchard v. Board of Trustees 113 Cal. 664 at 669-671 p. 743
- People ex rel. Cochran v. Bd. of Educ. of Oakland 54 Cal. 375 at 376-377 p. 743
- Wilson v. Hidden Valley Municipal Water District 256 Cal.App.2d 271 at 278-281 p. 743
- Sladovich v. County of Fresno 158 Cal.App.2d 230 at 242, at 241 p. 744
- Nider v. Homan 32 Cal.App.2d 21 at 24 p. 744