Opinion
No. 22954
12-22-1958
CITY OF PORT HUENEME, etc., Petitioner and Appellant, v. CITY OF OXNARD, etc., et al., Respondents. CITY OF OXNARD, etc., Petitioner and Respondent, v. CITY OF PORT HUENEME, etc., et al., Appellants. *
Jerome H. Berenson, City Attorney City of Port Hueneme, and Burke, Williams & Sorensen, Los Angeles, for appellant City of Port Hueneme. Joseph W. Goss, City Attorney Oxnard, for respondent City of Oxnard.
CITY OF PORT HUENEME, etc., Petitioner and Appellant,
v.
CITY OF OXNARD, etc., et al., Respondents.
CITY OF OXNARD, etc., Petitioner and Respondent,
v.
CITY OF PORT HUENEME, etc., et al., Appellants. *
Dec. 22, 1958.
Hearing Granted Feb. 18, 1959.
Jerome H. Berenson, City Attorney City of Port Hueneme, and Burke, Williams & Sorensen, Los Angeles, for appellant City of Port Hueneme.
Joseph W. Goss, City Attorney Oxnard, for respondent City of Oxnard.
NOURSE, Justice pro tempore.
The above entitled matters were consolidated for trial, findings of fact and conclusions of law made in the consolidated cases, and both matters determined by a single judgment.
City of Port Hueneme, hereinafter called 'Hueneme,' appeals from that judgment.
The first action mentioned in the caption is an attack by Hueneme on two annexation proceedings commenced under the 'Annexation of Uninhabited Territory Act of 1939' (Gov.Code, §§ 35300-35326) and which were known as Oxnard Annexations 55-3 and 55-5. These proceedings were pending before the City Council of the City of Oxnard, hereinafter called 'Oxnard,' at the time of the commencement of the action. 1 The second action is an attack by Oxnard upon an annexation proceeding commenced under the Uninhabited Territory Act and which at the commencement of that action was pending before the City Council of Hueneme. This proceeding was known as the Hueneme (Brucker-Lown) Annexation.
The case was tried upon a stipulated statement of facts, admissions in the pleadings, and the exhibits attached to the pleadings in the action, which include maps of the lands covered by the annexation proceedings attacked, portions of the territory that were within the limits of the respective cities at the time of the commencement of annexation proceedings attacked and the territory included within an annexation known as Oxnard Annexation No. 55-2.
A portion of Exhibit 'A' attached to the complaint in the action brought by Hueneme is here reproduced as a part of this opinion together with certain symbols which we have added in order to make this map understandable when reproduced in black and white (in the original certain areas are distinguished by colors). 2 NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE PORT HEUENEME MAP Portion of Exhibit "A", Case 44530 Immaterial Data Eliminated Colors Changed To Correspond To Oxnard Map. LEGEND A Port Hueneme City Limits as of Feb. 23, 1955 ---- B Oxnard City Limits as of Feb. 23, 1955 ---- (1) C Oxnard Annexation #55-1; Ordinance #505 adopted Feb.23, 1955 ---- D Oxnard Annexation #55-2; Ordinance #506 adopted Feb. 23, 1955 ---- Proposed Oxnard Annexation #55-3; Resolution of Intent #1602 E adopted March 7, 1955 ---- (Second) Proposed Port Hueneme Annexation (Brucker-Lown): Resolution F of Intent #289 adopted March 8, 1955 ---- Proposed Oxnard Annexation #55-4. Withdrawn by Property Owner (1) G and terminated ---- Proposed Oxnard Annexation #55-5; Resolution of Intent #1607 H adopted March 14, 1955 ---- Parcels containing Registered Voters, excluded from attempted Port (2) Hueneme Annexation ---- (1) Immaterial (2) From Oxnard Map
The pertinent facts are: On March 7, 1955, and at all relevant times herein, the diagonally hatched territory shown on the map and marked 'B' was within the limits of Oxnard and the diagonally hatched territory designated 'A' was within the limits of Hueneme.
Prior to February 23, 1955, Oxnard Annexation 55-2 was commenced. By this proceeding it was sought to annex to Oxnard the strip of land which is shaded on the annexed map and designated 'D.' On February 23, 1955, ordinance Number 506 annexing D to Oxnard passed its second reading before the city council. No referendum petition was filed against this ordinance and it became fully effective on April 5, 1955. Within the territory of D were situated a portion of Oxnard's industrial wasteline and a portion of Oxnard's main interceptor sewer.
On March 4, 1955, the owner of the tract of land which borders Hueneme Road on the north and which is contiguous to D (it is horizontally hatched and marked 'E' on the map) submitted to the Ventura County Boundary Commission a petition (Oxnard Annexation 55-3) for the annexation of that tract to Oxnard. On March 7 the boundary commission approved the description and on that day the city council received the petition and adopted its resolution of intention Number 1602 and established April 12, 1955, as the date of public hearing. On April 26, 1955, after public hearing, the City Council of Oxnard adopted ordinance Number 510 purporting to annex the territory within Annexation 55-3.
Prior to March 8, 1955, a petition known as the 'First Proposed Brucker-Lown Annexation' was submitted to the county boundary commission for approval of the description of the territory described therein. This territory was comprised of a number of parcels, each under separate ownership. The most northerly of these parcels, known as the 'Brucker land,' we have designated 'F1.' The most northerly portion of F1 is contiguous to Port Hueneme. Parcel F1 is adjoined to the south at Pleasant Valley Road by a parcel which we have designated 'F2' the northerly boundary of which overlaps the southerly boundary of F1 by a distance of less than 40 feet. (Hueneme asserts the overlap is 38.59 feet, Oxnard claims it to be but 34.26 feet.) F2 is adjoined on the south by F3. F3 is adjoined on the south by a parcel of land which contains that portion of the land contained on Oxnard Annexation 55-3, which lies westerly of the southerly extension across Oxnard Annexation 55-3 of the easterly boundary of F3. This land is adjoined on the south at Hueneme Road by a large tract designated 'F' on the map; as originally described this parcel included the portions of that tract which we have designated F5 and F6. At the time this petition was submitted to the boundary commission there were approximately 18 adults living within the territory encompassed by the petition, less than 12 of whom were registered voters. 3 Thereafter and before the approval of the boundaries by the boundary commission, nine of the unregistered residents registered as voters, making a total of 14 registered voters in the area. Hueneme thereupon withdrew the first proposed boundaries and substituted therefor boundaries which excluded from the territory originally described those portions thereof which are designated F4, F5 and F6. F4, F5 and F6 contained residences which were inhabited by a total of eight of said registered voters and the number of registered voters whose places of habitation were within the boundaries of the proposed annexation as those had been amended was, by the exclusion of F4, F5 and F6, reduced to six. The amended description was approved by the boundary commission on March 8 and on the date the petition known as 'Port Hueneme Annexation (Brucker-Lown)' was submitted to the Hueneme City Council and on that day it adopted its resolution of intention Number 289. At the public hearing held pursuant to this resolution of intention the owners of parcels F2, F3 and that portion of Oxnard Annexation 55-3 which lay within the Brucker-Lown Annexation protested the annexation. 4 On May 4, 1955, the Council of Hueneme adopted annexation ordinance Number 84 purporting to annex the property within the Brucker-Lown Annexation to Hueneme.
On March 14, 1955, the county boundary commission approved the description contained in a petition for the annexation to Oxnard of certain uninhabited territory consisting of a rectangular-shaped piece of land connected by a strip of land to tract D (Oxnard Annexation 55-2) at its northerly boundary. This tract and strip are cross-hatched and designated on the map as 'H.' On March 14 the petition for the annexation of H as Oxnard Annexation 55-5 was presented to the City Council of Oxnard and on that date it passed its resolution of intention. On April 26, 1955, the City Council of Oxnard adopted ordinance Number 511 purporting to annex the territory within Annexation 55-5 to Oxnard. Within the boundaries of Annexation 55-5 is situate a portion of Oxnard's main interceptor sewer.
Neither the land sought to be annexed by Oxnard Annexation 55-3 nor the land sought to be annexed by its Annexation 55-5 was, at the time of the resolutions of intention passed in connection therewith, contiguous to the city of Oxnard as its boundaries existed then, but each of them was contiguous to the lands within Oxnard Annexation 55-2 (tract D on the map). The strip of land which is a part of Oxnard Annexation 55-5 (parcel H on the map) includes a portion of the Brucker land in the Hueneme (Brucker-Lown) Annexation.
The only parcel contained in the Hueneme Bruckner-Lown Annexation which touches upon a boundary of the city of Hueneme as those boundaries existed on March 8, 1955, is parcel F1. The Hueneme Annexation.
By paragraph 4 of the judgment appealed from it is decreed 'That Port Hueneme Resolution 289, Ordinance 84 and the Brucker-Lown Annexation are void and non-effective,' and by paragraph 7 of the judgment it was decreed 'That the City of Port Hueneme has no rights to be declared in its favor as against the City of Oxnard or any of its Council members under the issues in these cases' and by paragraph 8 of the judgment it is decreed 'That the City of Port Hueneme is not entitled to take anything by its Petition for Writ of Mandate and said Petition is denied.' By paragraph 14 of the judgment Hueneme and the members of its council were ordered to cease and desist from further proceedings in connection with the Brucker-Lown Annexation and ordered to terminate that proceeding.
The trial court found as a fact that the territory described in the Brucker-Lown petition and in the resolution of intention adopted by the council of Hueneme was inhabited territory and concluded that all proceedings under that annexation were without legal sanction and void because the territory was inhabited within the meaning of Government Code, section 35303.
Whether the territory included within the proposed annexation was inhabited is a question of fact. The resolution of this question of fact does not depend upon whether the registered voters' places of abode, i. e. the places where they ate and slept, were within the boundaries of the proposed annexation but upon whether those places of abode were within and an integral part of a parcel which was included within the boundaries of the proposed annexation. People ex rel. Pennington v. City of Richmond, 141 Cal.App.2d 107, 111-113, 296 P.2d 351. Hueneme concedes that the question is one of fact but contends that the findings of fact and conclusions of law drawn therefrom by the trial court are unsupported by the evidence. With this we cannot agree.
It was stipulated that each of the several parcels, F1, F2, F3, F and that portion of Oxnard Annexation 55-3, which was included in the Hueneme Annexation was in separate ownership and that there was 18 adult residents within the boundaries of the first proposed Brucker-Lown Annexation. It was stipulated that of these adults less than 12, in fact but five, were registered voters. It was further stipulated that before the filing of the amended petition nine of the unregistered adults registered as voters thus raising the number of registered voters within the original boundaries to 14. It was also stipulated that the portion of the Bruckner-Lown Annexation territory which overlapped a portion of Oxnard Annexation 55-3 and which we have designated F4 on the map and those portions of parcel F in the original or first Brucker-Lown proceeding and which we have designated F5 and F6, contained three houses inhabited by eight registered voters and that the land upon which each of the three houses was situated was a part of a larger parcel owned by the same owners and included within the Brucker-Lown Annexation as amended. The original Brucker-Lown petition treated the parcels of which F4 is a part as one parcel of land and treated F5 and F6 as a part of another parcel.
The facts we have alluded to support an inference that the voters inhabiting the dwellings situate on F4, F5 and F6 were residents of the parcels of which the lands upon which their dwellings were situate were an integral part and the evidence therefor amply supports the finding that the territory included within the Bruckner-Lown Annexation was inhabited. It is too evident for words that the amendment of the Brucker-Lown petition was but an attempt to leave outside the boundaries of the proposed annexation the places of abode of eight registered voters and thus to sever their places of abode from the parcels of which they an integral part.
Hueneme, appellant herein, has applied to this court to take further oral evidence and to make submitted findings of fact contrary to the findings made by the trial court. The application is defective as it is not supported by an affidavit setting forth the facts to be proved, as required by rule 23(b) of the Rules on Appeal. Further, the facts related in the unverified application are to a large extent in conflict with facts recited in the stipulation of facts on which the trial court in part based its findings and would require this court to resolve that conflict in favor of Hueneme and then to make findings contrary to those made by the trial court in order to reverse the judgment. This we decline to do. Tupman v. Haberkern, 208 Cal. 256, 266, 280 P. 970; Gantner v. Gantner, 39 Cal.2d 272, 281, 246 P.2d 923; Monson v. Fischer, 107 Cal.App. 55, 289 P. 899. The issue as to the uninhabited character of the territory included within the Brucker-Lown petition is clearly tendered by both Oxnard's answer to the Hueneme petition and by Oxnard's own petition and was tried, argued and determined in the lower court upon the facts stipulated to, and there is no contention that the evidence which Hueneme seeks to produce here was not available to it at the trial of the action.
For another reason the judgment of the trial court that the Brucker-Lown Annexation is void should be sustained. Before property may be annexed under the Uninhabited Territory Act of 1939 that property must be contiguous to the city to which annexation is sought. Gov.Code, § 35302; People ex rel. Paganini v. Town of Corte Madera, 97 Cal.App.2d 726, 218 P.2d 810, and if any part of the territory within the boundaries of the proposed annexation is not contiguous the whole proceeding is void even though a part may be contiguous. That is to say, if any part of the territory is noncontiguous the council does not obtain jurisdiction over any of it. Johnson v. City of San Pablo, 132 Cal.App.2d 447, 454, 283 P.2d 57. As we have heretofore pointed out, the contiguity of all portions of the Brucker-Lown Annexation other than parcel F1 depends upon a less than 40 foot overlap of the eastely boundary of F1 and the westerly boundary of F2.
Section 35002.5 of the Government Code provides: 'Territory shall not be deemed contiguous as the word 'contiguous' is used in this chapter if the only contiguity is based on a strip of land over 300 feet long and less than 200 feet wide exclusive of highways.' This section was enacted in 1951 at the first session of the Legislature after the District Court of Appeal for the First District rendered its decision in City of Burlingame v. County of San Mateo, 90 Cal.App.2d 705, 203 P.2d 807. In that case the court had upheld an annexation by the city of Burlingame of a horseshoe-shaped strip of land 100 feet in width both ends of which wholly abutted upon the boundaries of Burlingame so that the total width of the abutment was 200 feet. It seems evident that it was the intent of the Legislature to remedy the situation illustrated by the decision in the Burlingame case by requiring that territory to be annexed must be continuously contiguous to the boundaries of the annexing city for a distance of not less than 200 feet if the territory to be annexed is over 300 feet in length and to provide that a contiguity of less than 200 feet at one point should not constitute contiguity. If this is not true then the statute has accomplished no real purpose and a strip of land 200 feet in width but which is contiguous to the city's boundaries for a distance of only two feet would meet the requirements of the stature and a city might checkerboard adjacent but otherwise noncontiguous unincorporated territory without it being practicable to service that territory as a part of the city.
Within the meaning of section 35002.5 of the Government Code that portion of F2 which is within a strip of land of the width by which F2 overlaps F1 is the strip which connects all the portions of the annexation lying south of F2 and which connects the remainder of F2 to the city. F2 and all portions of the annexation lying south thereof were therefore not contiguous to Hueneme at the time of the commencement of the proceedings.
While the question of contiguity of the Brucker-Lown Annexation was not passed upon by the trial court it has, at our request, been presented here on briefs. The facts are undisputed. The trial court could, if this matter were retried, make no finding except one of noncontiguity. We, therefore, make such finding pursuant to the provisions of section 956a of the Code of Civil Procedure. The Oxnard Annexation.
Oxnard's annexation proceeding 55-3 having been first commenced, that proceeding is valid if the territory encompassed within that proceeding was contiguous to Oxnard within the meaning of section 35302 of the Government Code. Govt.Code, §§ 35308-35309. The same is true as to Oxnard's proceeding 55-5 for the Hueneme Brucker-Lown proceeding being void it did not, under section 35308 of the Government Code preclude the presentation of the petition under proceeding 55-5 to the council of Oxnard nor did it under section 35309 of the Government Code keep that council from acting thereon.
It is not and could not be asserted that the territory encompassed in either Oxnard's proceeding 55-3 or 55-5 was contiguous to the boundaries of Oxnard as they existed at the time those proceedings were presented to the City Council of Oxnard. On the other hand, it is undisputed that both of these territories were contiguous to the territory encompassed in Oxnard Annexation 55-2. 5
The trial court found that the territories within Annexations 55-3 and 55-5 were contiguous to the territory within 55-2 and that at the time of the adoption of the ordinances of annexation as to Annexations 55-3 and 55-5 'absolute contiguity existed between the City of Oxnard and the territory' comprising each of said annexations, and concluded that, as a matter of law, contiguity to 55-2 was 'sufficient and adequate contiguity to permit valid commencement' of said annexation proceedings 55-3 and 55-5 and that the absolute contiguity which existed at the time of the passage of the ordinances of annexation made valid the adoption of those ordinances. On the basis of these findings and conclusions the trial court decreed Oxnard's proceedings 55-3 and 55-5 valid.
Oxnard makes numerous contentions to uphold this portion of the decree. It asserts that section 35302, Government Code, does not require contiguity at the inception of proceedings to annex uninhabited territory but only requires contiguity at the time those proceedings become effective and the new territory is in fact annexed. On this basis they contend that inasmuch as annexation proceeding 55-2 was fully effective at the time of the adoption of the ordinances under the proceedings in Annexations 55-3 and 55-5 (Ordinances Nos. 510 and 511) the conditions of section 35302 had been met and the annexations were valid.
In support of their argument they direct our attention to the fact that in codifying the 'Annexation of Uninhabited Territory Act of 1939' the Legislature combined in section 35302 the provisions of sections 1 and 2 of the act and in so doing did not carry into section 35302 the language of section 2 which provided '[a]ny such territory so proposed to be annexed * * * must be contiguous thereto' (emphasis added); thus demonstrating, so they claim, the intent of the Legislature not to require contiguity at the inception of the proceedings.
We do not believe this contention is sound. In the first place, it overlooks the fact that the change in the wording of the statute was proposed by the code commission which, in its report submitting the redraft of the 1939 Act as well as the redraft of the 'Annexation Act of 1913' and other statutes for codification in the Government Code, expressly stated that it was not its intention by its proposed codification to make any substantive changes in the statutes codified. 6
In the second place, the statutes of 1939 and 1913 were re-enacted and codified as a part of the Government Code by one act of the Legislature (Stats.1949, ch. 79). By this act, the statutes of 1913 were codified as article 2, of chapter 1, part 2, division 2, title 4 of the Government Code and the 1939 Act, as article 5.
By section 35101 7 it is provided that the provisions of article 2 alone shall apply to proceedings for the annexation of inhabited territory and by section 35301 it is provided that in proceedings for the annexation of uninhabited territory the provisions of article 5 alone shall apply. 8
The Act of 1913 as originally enacted and as codified expressly permitted the commencement of proceedings for the annexation of territory, which although not contiguous to the city, was contiguous to territory which had reached a certain stage in the process of its annexation to the city and expressly provided for the termination of annexation proceedings for such noncontiguous territory should the proceedings for the annexation of the territory to which it was then contiguous not become effective. Gov.Code, §§ 35104, 35141.
The Legislature, therefore, in codifying the 1939 Act, was fully cognizant of the provisions of the 1913 Act as codified and it would be unreasonable to hold that, in specifically providing that the provisions of article 5 (Gov.Code, §§ 35300-35326) shall alone govern proceedings for the annexation of uninhabited territory, the Legislature intended, by the omission of the words of 'the territory proposed to be annexed' from the original statute, to provide for proceedings such as were provided for in the Act of 1913. See People ex rel. Paganini v. Town of Corte Madera supra, 97 Cal.App.2d 726, 218 P.2d 810.
That this was not the intention of the Legislature we think is demonstrated by the results that would occur from such interpretation of the statute. If the interpretation contended for should be upheld a city could initiate proceedings to annex territory far distant from its boundaries (Gov.Code, § 35310) and thus under the provisions of sections 35308 and 35309 of the Government Code exclude all other municipalities from initiating proceedings for the annexation of that territory until such time as the council of the city first initiating proceedings had adopted an ordinance disapproving the proceedings which it had initiated.
Oxnard asserts, however, that the result we have suggested may be avoided by the court's interpreting section 35302 so as to make it applicable only when what it terms 'intercontiguity' exists, i. e. when the uninhabited territory to be annexed is contiguous to territory as to which other annexation proceedings are pending. In effect it would have us, by judicial fiat, read into the 1939 Act provisions similar to the provisions of sections 35104 and 35141.
We cannot, under the guise of interpretation, in effect legislate, nor can we interpret one act by the provisions of another where the Legislature has expressly provided that only the provisions of the pertinent act shall govern the proceedings had thereunder.
Oxnard also directs our attention to In re Lancaster City Ordinance No. 20-1952, 374 Pa. 543, 98 A.2d 33. It was in this case that the Supreme Court of Pennsylvania coined the phrase 'intercontiguity' and while its decision supports Oxnard's contention we are not bound by it, nor does its reasoning appeal to us.
Oxnard also asserts that despite the fact that ordinance Number 506 (annexing the territory without Oxnard 55-2) was not effective (Elec.Code, § 1770) but was subject to referendum at the time proceedings were initiated for the annexation of 55-3 and 55-5 and despite the fact that the 55-2 proceedings only became effective upon the filing of a certified copy of ordinance Number 506 with the Secretary of State (§§ 35316 and 35317), the territory encompassed by proceeding 55-2 nevertheless became a part of Oxnard upon the second reading of the ordinance and that therefore 55-3 and 55-5 were contiguous to that city at the time of the commencement of those proceedings. It argues that the 30 days would elapse in 'due course of time' and that the transmission of a certified copy of the ordinance to the Secretary of State and the filing of that document with him were purely administrative in character. This contention is without merit for the reason that until the ordinance was effective the territory included within the annexation was not territory over which Oxnard could exercise governmental function and was still only territory in the process of annexation. Oxnard relies upon Rafferty v. City of Covina, 133 Cal.App.2d 745, 285 P.2d 94, to support its contention. There is language used by the court in this decision (133 Cal.App.2d at page 754, 285 P.2d at page 100) which standing alone would seemingly justify the argument made. The court there, however, did not pass upon the question as to whether or not the mere passage of the ordinance constitutes annexation so as to give the annexing city jurisdiction over a subsequent annexation proceeding at a time prior to the effective date of the original ordinance but only passed upon the question as to whether a statute passed after the adoption of the original ordinance acted retrospectively to void an ordinance passed before the enactment of the statute. The decision has no bearing upon the question presented here, viz., Does the passage of an ordinance effectively annex the territory described therein? This question must be answered in the negative under the express provisions of 35316, 35317 and 35318 of the Government Code and section 1770 of the Election Code, for under these sections the ordinance has no effect until the conditions specified therein have occurred or been fulfilled.
The judgment appealed from is affirmed insofar as it decrees that 'Hueneme Brucker-Lown Annexation' is void and is reversed insofar as it decrees that the Oxnard Annexation 55-3 and Oxnard Annexation 55-5 are valid and effective. Each party to bear its own costs on appeal.
SHINN, P. J., and VALLEE, J., concur. --------------- * Opinion vacated 341 P.2d 318. 1 Both Oxnard and Hueneme are cities of the sixth class. 2 All map references hereafter made are to the map reproduced. 3 Territory is deemed uninhabited if less than 12 registered voters reside within it at the time the petition is filed with the counsel. Gov.Code, § 35303. 4 These protests did not represent one-half of the value of the territory proposed to be annexed and were therefore insufficient to defeat the proceeding. Gov.Code, § 35313. 5 Oxnard concedes that Ordinance 506 providing for the annexation of 55-2 did not become effective until March 25, 1955, and was not effective at the time of the initiation of the proceedings for the annexation of 55-3 or 55-5. 6 'The commission in its work of revision and codification has adopted a definite policy not to make substantive changes, but to confine its work to a compilation, consolidation, and clarification of the existing law. Such changes in wording as are made, are made to resolve ambiguities or to conform with administrative practice and legislative intent. The revision and codification will present the existing law in such form as to facilitate greatly the making of such substantive changes as are found to be necessary.' Report of the California Code Commission, Legislative Session of 1949. 7 All section numbers hereinafter cited are to the Government Code unless otherwise shown. 8 By amendment passed in 1951, the provisions of article 1 were made applicable to both types of proceedings. Stats.1951, ch. 963.