Norlund v. Thorpe

34 Cal. App. 3d 672, 110 Cal. Rptr. 246, 1973 Cal. App. LEXIS 835

• Court: California Court of Appeal
• Decided: October 17, 1973
• Docket: Civ. 33158
• Status: Published

Opinions

Opinion

DRAPER, P. J.

This proceeding in mandamus presents an issue not passed upon to date—is the resolution of a city council ordering annexation of uninhabited territory subject to referendum by the voters of the annexing city? The strongest argument advanced by the City of Napa against this right of referendum is that annexation of territory by a city is a matter of statewide concern and that the Legislature has specifically delegated the annexation power to the legislative bodies of the cities, thus excluding any right of the city electorate. We cannot accept that argument.

On August 7, 1972, the City Council of Napa adopted Resolution 6076, approving annexation of some 99 acres known as the Longwood Ranch. Only two days later, certified copy of the resolution was filed by the Secretary of State and certificate of filing issued. On September 5, 1972, petitioner here and others (an alleged total of 4,111) filed a petition seeking submission of the annexation resolution to vote of the people of the city in a referendum. The city council, also on September 5, refused to file the referendum petition. Petition for writ of mandate, filed October 5, .sought to compel the city clerk to examine the petition and to certify the number of qualified electors signing it and, if the requisite percentage had signed, to compel the city council to call an election. Respondents, the city clerk and members of the city council, demurred. The demurrer was sustained without leave to amend, and petitioners sought mandate here.

A city has no inherent right to annex territory. Since such authority is not provided by the Constitution, it follows that all municipal authority in this field stems from state legislation. It is only in this very general sense that annexation of territory by a city is a matter of “statewide concern.” The same is true of many, if not all, powers exercised by cities. Even a charter city holds home rule powers only after its charter is approved by the Legislature. The general subject of annexation by cities is, of course, a matter of statewide concern, but no one annexation by a particular city can be so denominated. It is difficult to imagine that Napa’s annexation of a comparatively small area is a matter of public concern in, San Diego, Crescent City, or Sacramento.

Of course, a city cannot, either by council action or vote of the electorate, exceed the limitations upon annexation enacted by the Legislature. Thus the council cannot ignore a protest filed by a county as owner of land within the area proposed to be annexed (County of Los Angeles v. City Council, 202 Cal.App.2d 20 [20 Cal.Rptr. 363]), nor can a city annex land in another county. (County of San Mateo v. City Council, 168 Cal.App.2d 220 [335 P.2d 1013].) Upon a distinct ground, a city cannot enter a field which has been preempted by state legislation. (Mervynne v. Acker, 189 Cal.App.2d 558 [11 Cal.Rptr. 340].)

But these rules, although they undoubtedly show that annexation is a power derived from the state, do not in any way suggest that the Legislature, by the statutes providing for annexation of uninhabited territory, intended to vest all power in the city legislative bodies and to exclude the people’s right of referendum. This is emphasized by reference to the former constitutional provision (art. IV, § 1) which “further reserved to the electors of each . . . city and town” the referendum power. It is hard to believe that the annexation act, adopted long before this constitutional provision was modified, intended to ehminate, by legislation alone, the very power which the Constitution granted to city voters.

There is no historical reason to attribute to the Legislature an intent to eliminate the right of referendum by voters of the annexing city. When the annexation act was adopted, as for decades before, growth was an overwhelming aim of cities and their voters. Bigness was considered a virtue in itself, and there is no suggestion that any legislator even considered the possibility of any voter’s dissent from expansion of his own city. The heretofore unheard of opposition to bigness has only recently tended to surface. There is no reason to attribute to the Legislature’s occasional reference to the legislative body of a city as a deliberate determination to bar referendum within the annexing city.

Moreover, the statute specifically provides (Gov. Code, § 35310.1) that “[a] resolution approving or disapproving the annexation shall be considered the same as an ordinance referred to in other sections of this article.” Thus the resolution approving annexation could not become effective until 30 days after its adoption. (Elec. Code, § 4050.) A prime purpose of deferment of the effective date of ordinances is to preserve the right of referendum. It is reasonably inferable from section 35310.1 that the Legislature, far from seeking to limit the annexing power to the several city councils, affirmatively intended to preserve the voters’ referendum right.

Annexation is not a legislative function so intermingled with quasi-judicial and administrative functions that the latter render it an improper subject for referendum. (See Newsom v. Board of Supervisors, 205 Cal. 262, 271 [270 P. 676].)

Respondents argue that the annexation was complete when the Secretary of State filed a certified copy of Resolution 6076. But the statute specifically provides that a resolution of annexation “shall be considered the same as an ordinance” of annexation (Gov. Code, § 35310.1). The normal 30-day delay in effective date of an ordinance thus applies. (Elec. Code, § 4050.) Respondents rely upon subdivision (d) of that section, which excepts from the 30-da.y provision “ordinances governed by particular provisions of state law prescribing the manner of their passage and adoption.” Since nothing in the Annexation of Uninhabited Territory Act shortens the 30-day period, the requirement applies. A statute (Gov. Code, § 35316) specifically provides that when a “resolution . . . approving annexation becomes effective,” it shall be certified and transmitted to the Secretary of State (§ 35317) and shall be filed by him. “Annexation proceedings are not complete before the filing by the Secretary of State . . . after the lapse of a 30-day period subsequent to the adoption by the city council . . . .” (Guerrieri v. City of Fontana, 232 Cal.App.2d 417, 419 [42 Cal.Rptr. 781].)

It follows that the annexation proceeding was not complete either when the referendum petition was filed or when this mandate proceeding was commenced. Mandate is a proper method of . testing the validity of annexation proceedings before they are complete. (City of Anaheim v. City of Fullerton, 102 Cal.App.2d 395 [227 P.2d 494]; Johnson v. City of San Pablo, 132 Cal.App.2d 447 [238 P.2d 57]; Guerrieri v. City of Fontana, supra.) Thus we reject respondents’ contention that quo warranto is tne only available remedy. The premature filing is ineffective to complete the annexation. There is no suggestion of any filing of the resolution with the Secretary of State after the lapse of 30 days and before petitioners’ mandamus proceeding was begun below. We do not suggest that an annexation remains indefinitely in legal limbo merely because the certified copy of the annexation resolution or ordinance was improperly filed with the state. The doctrines of laches or estoppel might well, on appropriate facts, allow a very short period for attack upon the annexation even though the resolutions were prematurely filed. No such issue, however, is before us here.

The annexation resolution is subject to referendum. Let writ of mandate issue directing the city clerk to examine the referendum petition and to certify the number of registered electors who have properly signed that petition. If that number meets the required percentage, respondent city council is directed to order the holding of an election thereon.

Brown (H. C.), J., concurred.