Opinion
For Opinion on Hearing, see 35 Cal.Rptr. 65, 386 P.2d 665.
Harry C. Williams, City Atty., Burke, Williams & Sorensen and Royal M. Sorensen, Los Angeles, for appellants.
O'Melveny & Myers, Bennett W. Priest and William D. Moore, Los Angeles, for respondent.
LILLIE, Justice.
In December of 1960 defendant city council initiated proceedings to annex certain of plaintiff's property, contiguous to the city's boundaries, under the Annexation of Uninhabited Territory Act of 1939 (Govt. Code, §§ 35300 et seq.). Thereafter, at a hearing held for that purpose, the council determined that there was no majority protest; more specifically, that plaintiff (the sole protestant) was not the owner of one-half of the value of the territory to be annexed as shown by the last equalized assessment roll. (Govt. Code § 35313. The present mandamus action was then instituted. By its judgment the trial court decreed that a peremptory writ issue commanding the council to determine that written protest had been made by owners of one-half of the value of the territory in question and further commanding the council to terminate annexation proceedings. The appeal is from such judgment.
In the interest of complete accuracy, two separate hearings were had with respect to two separate protests. This resulted from the adoption of two separate resolutions, each of which purported to initiate the subject annexation.
The council made no finding of the assessed value of plaintiff's property within the annexation.
Certain material facts are without dispute. In 1960 plaintiff acquired a parcel of real property, approximately 1050 acres in area, lying easterly and southerly of the city limits of West Covina. It was acquired for the purpose, among others, of establishing a cemetery thereon; in that latter connection, in mid-November of the same year plaintiff appled for a permit from the county planning commission to devote 406 acres of the above parcel for such purposes. On December 29, 1960, and again on February 14, 1961, the council adopted resolutions both relating to the subject annexation; after each of the two protest hearings (see footnote 1), the council found that there was not a majority protest as provided by the governing statute.
The proposed annexation involved five separate parcels of land under separate ownership. Plaintiff is the owner of one such parcel, being approximately 100 acres of the undivided 1050-acre parcel referred to above; the remaining parcels represent four residential lots the total area of which is some 14 acres. The total assessment for plaintiff's 1050 acres upon the applicable equalized assessment roll (1960-1961) was $138,010 of which $3,010 was for improvements (all located on the 100-acre parcel). There was no breakdown of the above assessment showing any assessed value for the 100-acre parcel proposed to be annexed. The four other parcels, included within the annexation, had a total assessed value of $48,360, including land and buildings.
As amended in 1957, and therefore controlling here, is section 35313, supra, which reads as follows: 'At the time set for hearing protests, or to which the hearing may have been continued, the legislative body shall hear and pass upon all protests so made. If protest is made by the owners of one-half of the value of the territory as shown by the last equalized assessment roll, further proceedings shall not be taken. The value to be given publicly owned property for protest purposes shall be determined by the legislative body. If publicly owned property and privately owned property are proposed to be annexed in the same proceeding, further proceedings shall not be taken if protest is made either by private owners of one-half of the value of the privately owned territory proposed to be annexed, or by public owners of one-half of the publicly owned territory proposed to be annexed. As used in this article, 'value of the territory' means the value of the land and improvements thereon.' Defendant council, although conceding that there was no separate equalized assessment for the 100-acre parcel included in the proposed annexation, jusifies its determination that there was no majority Both sides agree, and it has been consistently held, that in annexation proceedings the statute constitutes 'the measure of the power to be exercised.' (American Distilling Co. v. City Council of City of Sausalito, 34 Cal.2d 660, 664, 213 P.2d 704, 707.) It is in the application of the above rule to the facts at bar that the heart of the present controversy lies. Defendants point out that subject to certain exclusions provided by statute (Govt.Code, § 35008), and not here applicable, a municipality is not prohibited from cutting across property lines in the course of annexation proceedings. Thus, it is declared in People ex rel. Peck v. City of Los Angeles, 154 Cal. 220, 224-226, 97 P. 311, 312: 'It will be observed from these provisions of the act that there is no limitation whatever expressed in the statute as to the extent or form of the territory to be annexed, and there is nothing from which any limitation can be implied. * * * The Legislature itself in the very nature of things could not lay down any rule as to the extent, shape, or character of territory which might be annexed to any given municipality. * * * They [the courts] only interfere where some substantial provision of the law has been violated or where fraud was perpetrated in the matter of boundaries or the extent of the annexed district. That the extent and shape which the annexed territory shall take is a political, and not a judicial question, is clear from the conclusion announced by this court in the case of People [ex rel. Russell] v. Town of Loyalton, 147 Cal. 774, 82 P. 620. * * *' To the same effect are People ex rel. Forde v. Town of Corte Madera, 115 Cal.App.2d 32, 251 P.2d 988, and City of Buringame v. County of San Mateo, 90 Cal.App.2d 705, 203 P.2d 807.
From this premise it is argued that since the city has the power to cut across property ownership lines, it likewise is authorized to determine the proper apportionment of the assessed value to be given a single but unassessed parcel within the territory to be annexed. Parenthetically, as mentioned earlier (footnote 2, supra), the council never made a finding as to assessed value of the single parcel in question. Be that as it may, defendants also contend that since the statute expressly provides that 'the legislative body shall hear and pass upon all protests so made,' the council impliedly but necessarily was thereby empowered to fix the value of the parcel by virtue of its determination as to the existence (or otherwise) of a majority protest. To deny them this power, defendants conclude, would be inconsistent with the city's prerogative to cut across property ownership lines as declared in the cases above cited.
The very fact, however, that cities have been given great powers in the matter of annexing territory, carries with it a corresponding responsibility not to abuse such powers. In Heller v. City Council of City of Seal Beach, 157 Cal.App.2d 441, 321 P.2d 97, 102, this court pointed out that 'the legislature carefully designed a procedure whereby the rights of private property owners * * * are protected in their right to protest [such proceedings].' (p. 449 of 157 Cal.App.2d, p. 103 of 321 P.2d) Continuing, "If such [protest] hearings are permitted to degenerate into a mere token procedure, or if the administrative body proceeds arbitrarily and without regard to the protest filed, then the statutory requirements mean nothing * * *." (p. 450 of 157 Cal.App.2d, p. 102 of 321 P.2d.) A vital step in this carefully designed procedure relates to the determination of the value of privately-owned property for protest purposes. As provided expressly Consideration of the legislative history of section 35313, reference to which has just been made in part, is one of several points advanced by plaintiff in support of the judgment. Thus, in addition to the 1955 amendment conferring authority upon the council to fix the value of publicly-owned property (to be annexed), in 1957 section 35313.1 was added and the state lands commission thereby empowered to determine the value of tide or submerged lands for protest purposes. Still again, in 1961 section 35313 was amended in three respects: (1) the 1955 authority given the legislative body to determine the value of publicly-owned property was removed and such authority vested in the county assessor; (2) the county assessor was authorized to fix the value of private property exempt from taxation; and (3) the legislative body had conferred upon it the power to divide the assessed values of property held in joint tenancy 'in proportion to the proportionate interest of the protestant in such property.' What is the conclusion to be drawn from the act of the legislature in amending or adding to a statute covering the same general subject matter without any change in the express provision that the value of the private property in question must be that as shown by the last equalized assessment roll? Paraphrasing the court's language in United States Pipe & Foundry Co. v. City Council, 150 Cal.App.2d 630, 637, 310 P.2d 431, it would be judicial legislation for us now to confer the authority claimed by the defendants under the guise of construction or the doctrine of implied powers. For while it is the rule (at defendants point out) that 'an express power to accomplish a given result carries with it the power to do such subsidiary acts as are incidental and necessary to the exercise of the power' (35 Cal.Jur.2d 14, § 194), an exception arises 'where such implied power is expressly or impliedly prohibited.' (Emphasis added.) (35 Cal.Jur.2d, supra, 14, § 194.) This is particularly true of annexation legislation which must be strictly construed. (People ex rel. Averna v. City of Palm Springs, 51 Cal.2d 38, 331 P.2d 4.)
Secondly, plaintiff argues that defendants' position is contrary to decisional law determinative of the problem. These precedents include the American Distilling and Heller cases hereinbefore cited. In American Distilling (supra, 34 Cal.2d 660, 213 P.2d 704) the proposed annexation involved two parcels of property, one owned by the government and one by the distilling company. Although the statute did not then give the council express authority to fix the value of publicly-owned property and although the last assessed value for such property was 'zero,' the legislative body assigned and assessed the value to the same property sufficient to justify its determination that the protest of the distilling company was not a majority protest. The Supreme Court concluded (p. 665 of 34 Cal.2d, p. 707 of 213 P.2d) that 'The city council purported to ignore the plain wording of the statute and to impute a value to the government owned land' which it had no authority to do. By analogy such reasoning is applicable here. Subsequently, in Heller (supra, 157 Cal.App.2d 441, 321 P.2d 97) the city council in 1956 assigned a value of $825,000 to certain publicly-owned land which was exempt and therefore not valued on the last assessment roll. Protesting private owners of land with a total assessed value of $187,950 successfully argued to the trial court--whose judgment this court affirmed--that the annexation be terminated because the council was not empowered to assign a value to government property not found on the last assessment roll. Interestingly enough, defendants make no mention People ex rel. Mosk, etc. v. City of Santa Barbara, 192 Cal.App.2d 342, 13 Cal.Rptr. 423, likewise decided by this court, is said by plaintiff to be still another controlling precedent. The same case is also relied on by defendants but for different reasons. Certain of the land proposed to be annexed by Santa Barbara belonged to a privately-owned public utility; the property consisted of underground gas storage reservoirs and the mineral rights thereto. The legislative body rejected the protest of the utility upon the ground that mineral rights are not 'land' within the meaning of section 35313. It was held in that regard as follows (p. 355 of 192 Cal.App.2d, p. 430 of 13 Cal.Rptr.): 'There seems no doubt that the Legislature intended, insofar as private property is concerned, that the local Council rely solely upon the assessment roll and that the Council should not be permitted to 'pierce' the assessment roll and make its independent determination of classification and valuation.' Plaintiff argues that defendant council has in effect attempted to 'pierce' the pertinent assessment roll and thus usurp the functions that properly and exclusively are within the jurisdiction of the county assessor; we are of the view that there is validity to this argument. As stated in the Santa Barbara case (p. 354 of 192 Cal.App.2d, p. 429 of 13 Cal.Rptr.): '* * * if the Council may go behind the assessment roll to make the reclassification [i. e., determine which of the mineral rights, if any, come within the definition of 'land' as set forth in the Civil Code], it would also be necessary for the Council to readjust the value of the property as shown by the last equalized assessment roll (i. e. subtract from the value of the territory as shown by the assessment roll those mineral rights which did not constitute 'land' within the meaning of Civil Code. Section 659).'
Furthermore, and the contention is urged as another basis for affirmance here, from a practical and realistic standpoint the claims advanced by defendants 'would lead, in annexation cases at least, to untold confusion and, in some instances, to manifestly undesirable results.' (People v. Santa Barbara, supra, p. 355 of 192 Cal.App.2d, p. 430 of 13 Cal.Rptr.) We have in mind the danger of arbitrary action in such proceedings by legislative bodies--and the instant case is an example. Unlike the situation in Santa Barbara, no valuation of any kind was placed on the parcel to be annexed nor is there any indication of the formula applied by the council. If the mathematical ratio were used, it would do violence to common sense to say that one-tenth (approximately) of a 1050-acre unit is necessarily of an assessed value equal to one-tenth of the unit's total assessed valuation. Going one step further, if the council does not have to find that the parcel in question has some specific value, it would lead to the following reverse situation (as pointed out in plaintiff's brief): 'It would allow the City Council to include 99% of respondent's property within the annexation, and then to find respondent's protest less than a majority in value, because the Council could claim that less than 35% of the assessed value was attributable to the 99% area involved.' (The above figure of 35% is arrived at as follows: Any percentage of the total assessed value of the 1080-acre unit would produce a figure of less than $48,360 and therefore lower than the total assessed value of the four lots ($48,360) owned by the non-protestants.)
While it is not suggested that any fraud was perpetrated by the council, the matter of arbitrariness in nevertheless subject to judicial inquiry.
As noted above, the Santa Barbara case is also relied on by the defendants. They point to footnote (192 Cal.App.2d at 345, 13 Cal.Rptr. at 424) that a value of $782,930 was placed on that portion of the utility's property to be annexed; hence, according to defendants, judicial recognition Any discussion of other points becomes unnecessary in view of the conclusions hereinabove reached.
For the foregoing reasons the judgment is affirmed.
WOOD, P.J., and FOURT, J., concur.