Levinsohn v. City of San Rafael

The court in Curtis declared that section 34311 was unconstitutional under the equal protection clause of the Fourteenth Amendment of the United States Constitution and the correlative provisions of the California Constitution, and issued its peremptory writ of mandate ordering the respondents to resume incorporation proceedings. The court determined that since section 34311 touched upon and burdened the right to vote it was subject to the strict test applicable to equal protection requirements for legislative classification. (7 Cal.3d at p. 955.) Accordingly, it concluded that no compelling interest was served by allocating power within the landowners’ group on the basis of assessed value of land. (At p. 961.) The court also concluded that section 34311 allocated power among landowners in a manner which bore no rational relationship to any state interest because it distributed voting power on the basis of land alone notwithstanding taxes are levied on improvements as well as land. (At p. 963.)

Although the language in sections 35121 and 35121.1 varies from that in section 34311, the import is the same, i.e., a veto power exists in persons holding 50 percent or more of the assessed value of land. Section 34311 is concerned with the formation of new incorporated cities while the sections challenged here deal with the annexation of land to already existing incorporated cities. The distinctions in language and purpose are slight; the result is the same. We perceive that nonlandowners share an equal interest with landowners in the annexation of the area in which they reside to an existing city as they share an equal interest in the formation of a city. Incorporation and annexation are two different procedures to attain the same goal. The resulting benefits in such public services as police and fire protection, maintenance of streets and the development of parks, as well as the detriment resulting from the imposition of taxes, are identical. Accordingly, upon the authority and rationale of Curtis we must declare sections 35121 and 35121.1 to be constitutionally infirm as they deny petitioners equal protection of the law under both the California and the federal Constitutions.

The recent case of Salyer Land Co. v. Tulare Water District (1973) 410 U.S. 719 [ 35 L.Ed.2d 659 , 93 S.Ct. 1224 ], decided after Curtis, is distinguishable. In Salyer the United States Supreme Court held sections

The rationale of Salyer is that where a special-purpose unit of government is assigned the performance of functions affecting definable groups of constituents more than other constituents such a body may be apportioned in ways which give greater influence to the citizens most affected by the organization’s functions without offending the equal protection clause. ( 410 U.S. 719 , 720-721 [ 35 L.Ed.2d 659 , 662]; see Avery v. Midland County (1968) 390 U.S. 474 , 483-484 [ 20 L.Ed.2d 45 , 52-53, 88 S.Ct. 1114 ].) With respect to voting rights, Salyer observed that the case before it involved one where the duties of the elected functionaries were so far removed from normal governmental activities and so disproportionately affected different groups that a popular election was not required. (At pp. 727-728 [35 L.Ed.2d at pp. 665-666]; see Hadley v. Junior College District (1970) 397 U.S. 50 , 56 [ 25 L.Ed.2d 45 , 50-51, 90 S.Ct. 791 ]; Reynolds v. Sims (1964) 377 U.S. 533 [ 12 L.Ed.2d 506 , 84 S.Ct. 1362 ]; accord: Associated Enterprises, Inc. v. Toltec District (1973) 410 U.S. 743 [ 35 L.Ed.2d 675 , 93 S.Ct. 1237 ] [per curiam decision].)

The majority in Salyer concluded that a water district fit within the exception to the “one person, one vote” rule, declared in Reynolds and followed in Avery and Hadley dealing with the governing bodies, respectively, of a county and a junior college district, on the basis that the water district was formed for a special limited purpose, i.e., the regulation of water flow, and that the landowners as a group would be most affected by the decisions of the water district. (410 U.S. at pp. 728-729 [35 L.Ed.2d at pp. 666-667].) It was specifically noted in Salyer that the water district “. . . provides no other general public services such as schools, housing, transportation, utilities, roads, or anything else of the type ordinarily financed by a municipal body. . . . There are no towns, shops, hospitals, or other facilities designed to improve the quality of life within the district boundaries, and it does not have a fire department, police, buses or trains.” (410 U.S. at pp. 728-729 [35 L.Ed.2d at pp. 666-667].)

In the instant case the unincorporated area is not one existing for a special purpose but exists for the well-being of nonlandowners as well as that of landowners. It provides general public services and facilities and seeks to ameliorate these by annexation to a municipal body which presumably will improve the quality and extent of these services. Such

We note, in conclusion, that the invalidity of sections 35121 and 35121.1 has no effect on section 35120 which sets forth the procedure for protesting annexation and the holding of annexation elections. Section 35120 is clearly severable from the infirmities of the invalid statutes. (See Curtis v. Board of Supervisors, supra, 7 Cal.3d 942 , 964.)

The peremptory writ of mandate as prayed shall issue.

Sims, J., and Elkington, J., concurred.