Opinion
11-3-1959
McDOWELL AND CRAIG, a California corporation, and Mel, Inc., a California corporation, Tom Paul Wetzel and Alice M. Imbert, Petitioners, v. CITY OF SANTA FE SPRINGS, a municipal corporation, et al., Defendants and Respondents. Tom Paul Wetzel, Appellant. * Civ. 23459.
Tiday, Pool & Moore, Ronald L. Tiday, Garden Grove, for appellant. Ferguson & Judge, Fullerton, for respondents.
McDOWELL AND CRAIG, a California corporation, and Mel, Inc., a California corporation, Tom Paul Wetzel and Alice M. Imbert, Petitioners,
v.
CITY OF SANTA FE SPRINGS, a municipal corporation, et al., Defendants and Respondents.
Tom Paul Wetzel, Appellant.
Nov. 3, 1959.
Hearing Granted Dec. 30, 1959.
Tiday, Pool & Moore, Ronald L. Tiday, Garden Grove, for appellant.
Ferguson & Judge, Fullerton, for respondents.
SHINN, Presiding Justice.
This is an appeal from a judgment denying a writ of mandate to invalidate an annexation undertaken by the City of Santa Fe Springs.
The undisputed facts are as follows. On May 22, 1957, the City Council of the City of Santa Fe Springs passed a resolution instituting proceedings to annex a parcel of uninhabited land contiguous to the city under the provisions of the Annexation of Uninhabited Territory Act of 1939. Gov.Code, § 35300 et seq. We shall refer to this territory as 'Parcel No. 1.' On the same date, the Council passed another resolution authorizing the circulation of a petition for the annexation of a parcel of inhabited land under the provisions of the Annexation Act of 1913. Gov.Code, § 35100 et seq. We shall call this territory 'Parcel No. 2.'
As we have said, Parcel No. 1 was contiguous to Santa Fe Springs on May 22nd. Parcel No. 2 was contiguous to Parcel No. 1, but on that date it depended upon Parcel No. 1 for contiguity to the city. On September 6, 1957, proceedings for the annexation of Parcel No. 1 were completed and it became a part of Santa Fe Springs. Thereupon Parcel No. 2 became contiguous to the city.
September 12, 1957, a proper and sufficient petition for annexation of Parcel No. 2 as authorized by the resolution of May 22nd was received by the City Council, whereupon a resolution was passed setting a date for a hearing upon written protests against the annexation. A hearing was held and the protests submitted were found insufficient to require cessation of further proceedings. Four of the protestants sought mandate to restrain completion of the annexation. Upon a voluntary dismissal of their action by three of the petitioners, the matter proceeded to trial against the city as to petitioner Tom Paul Wetzel only. The court made findings and entered judgment upholding the validity of the annexation. Wetzel appeals.
The sole assignment of error is that Parcel No. 2 did not qualify for annexation, hence the proceedings taken by Santa Fe Springs were void.
As to inhabited territory Government Code, § 35104 provides: 'To qualify for annexation, new territory shall be contiguous to : (a) The city, or (b) Contiguous territory where the electors have voted for annexation to the city.' (The parties agree that (b) has no relevancy to the present case.)
Appellant contends that contiguity had to exist on May 22nd, when circulation of the annexation petition was authorized by the City Council. The city contends, on the other hand, that contiguity was accomplished through annexation of Parcel No. 1 on September 6th and that this was all that was required in order to qualify Parcel No. 2 on September 12th, when the completed petition was received. It is also contended that even if contiguity were required on May 22nd in order to furnish literal compliance with the statutory requirements, the lack of contiguity on that date was merely a harmless procedural defect having no effect upon the validity of the proceedings. In our opinion, appellant's position that contiguity was necessary at the time proceedings were instituted must be sustained.
Contiguity is a prerequisite to annexation under both the Annexation Act of 1913 and the Annexation of Uninhabited Territory Act of 1939. We have already quoted the section of the earlier act which has to do with the contiguity of inhabited territory. Section 35302 of the Government Code, relating to uninhabited territory, reads: 'The boundaries of a city may be altered and contiguous uninhabited territory annexed to, and incorporated within it, pursuant to this article.'
It is now settled that at least as to uninhabited territory, contiguity to the city must exist at the commencement of the annexation, otherwise the proceedings are invalid. City of Port Hueneme v. City of Oxnard, 52 Cal.2d 385, 341 P.2d 318. A proceeding to annex inhabited territory commences upon the adoption of a resolution by a city council, acknowledging compliance with certain prescribed preliminary requirements and approving circulation of an annexation petition. Gov.Code, § 35113; City of Costa Mesa v. City of Newport Beach, 165 Cal.App.2d 553, 556, 332 P.2d 392. Our question is therefore whether the holding of the Port Hueneme case applies to annexations of inhabited territory undertaken pursuant to section 35104 (a). We think that it does. Annexation procedure is entire and essential steps may not be taken for the annexation of territory while it remains noncontiguous.
In urging to the contrary, the city argues that contiguity was unnecessary until it obtained jurisdiction over the proceedings and that it first acquired jurisdiction when it received the petition to annex Parcel No. 2. Reference is made to Government Code, § 35113 and § 35115 (as amended in 1955), which read as set forth in the margin.
It appears to be the contention that the words 'jurisdiction over the proceedings is acquired' mean that the proceedings commence with the receipt of a sufficient petition. Therefore, it is argued that at the time proceedings for annexation were commenced Parcel 2 was contiguous.
A complete answer to the argument that Santa Fe Springs was without 'jurisdiction' over the proceedings until September 12th is furnished by City of Costa Mesa v. City of Newport Beach, supra, 165 Cal.App.2d 553, 332 P.2d 392, involving the validity of conflicting proceedings for the annexation of inhabited territory under the established rule that where there is a conflict between proposed annexations, the one first instituted has priority. In affirming a judgment upholding the annexation by Costa Mesa of a parcel of inhabited territory as against a claim of priority advanced by Newport Beach, the court said, 165 Cal.App.2d at pages 557-558, 332 P.2d at page 395: 'Section 35113 imposes a 50-day restriction upon the institution of conflicting proceedings, commencing with the adoption of a resolution consenting to the circulation of a petition to annex inhabited territory; section 35115 imposes such a restriction commencing with the filing of a petition to annex and continuing until the annexation has been defeated, or the proceedings declared void, or otherwise terminated; * * * In the course of * * * recasting and amending there was included in section 35115 the provision that, 'when a petition for the annexation of any new territory * * * has been received * * * jurisdiction over the proceedings is acquired, * * *'. Appellants argue that, under this amendment, jurisdiction over proceedings to annex inhabited territory is not acquired until the petition for annexation is filed and that any proceeding instituted prior thereto has priority. We do not agree with this argument. Jurisdiction over annexation proceedings is acquired even though the statute does not expressly confer the same. There is no provision similar to that set forth in section 35115 in any of the code sections governing the annexation of uninhabited territory, yet jurisdiction in such a matter attaches when the proceedings have been instituted. We conclude therefore that the absence or presence of such a provision is not determinative of the issue. Moreover, section 35113 must be given effect; it was amended at the same time as Section 35115; and it prohibits commencement of conflicting annexation proceedings within 50 days; as a consequence, it confers exclusive jurisdiction for 50 days.' The Newport Beach proceeding, having been instituted within 50 days after the Costa Mesa City Council had authorized circulation of a petition in its own proceeding, was hald void.
It is also argued by Santa Fe Springs that the question whether Parcel No. 2 is inhabited or uninhabited territory was to be determined as of the date when the petition was filed, hence contiguity was likewise to be determined as of September 12th. The argument is without merit.
The Annexation Act of 1913 does not contain a definition of inhabited territory. However, uninhabited territory is defined in the Act of 1939 and it has been held that territory which is uninhabited within the meaning of the 1939 Act may not be annexed as inhabited territory under the Act of 1913. United States Pipe & Foundry Co. v. City Council, 150 Cal.App.2d 630, 310 P.2d 431. Section 35303 provides: 'For purposes of this article territory shall be deemed uninhabited if less than twelve registered voters reside within in it at the time of the filing of the petition for annexation or the institution of proceedings on motion of the city legislative body.' But this provision furnishes no support to the argument. A proceeding to annex uninhabited territory is initiated either by the filing of a petition for annexation or upon motion of a city council without the necessity of a petition. Gov.Code, §§ 35305, 35310. And, as we have pointed out, a proceeding to annex inhabited territory is initiated by a city council resolution authorizing circulation of a petition to annex. We conclude, therefore, that contiguity was required on May 22nd.
There remains to be considered the contention of the city that lack of contiguity on May 22nd was merely a harmless procedural defect of no effect upon the validity of the proceedings. It appears that after the issuance of an alternative writ restraining the city from proceeding further with the annexation, the restraining order was modified under stipulation to permit the holding of an election in Parcel No. 2 upon the question of annexation to Santa Fe Springs. We are asked to take judicial notice that the election resulted in a vote of 42 to 15 favoring annexation and to hold that the lack of contiguity was a minor and unimportant defect. In this connection, the city refers to People ex rel. Klevesahl v. City of San Bruno, 124 Cal.App.2d 790, 269 P.2d 211, and Jefferson Union School Dist. of Santa Clara County v. City Council, 129 Cal.App.2d 264, 277 P.2d 104, which state the rule that mere technical errors will not invalidate proceedings. Neither case is in point. A lack of contiguity of territory proposed for annexation at the time when contiguity is required is not a trivial mistake in annexation procedure comparable to those occurring in the cited cases. The absence of contiguity rendered the proceedings taken herein void in their inception and the judgment upholding their validity cannot be permitted to stand. City of Port Hueneme v. City of Oxnard, supra, 52 Cal.2d 385, 341 P.2d 318.
The judgment is reversed.
VALLEE, J., concurs. --------------- * Opinion vacated 4 Cal.Rptr. 176, 351 P.2d 344. 1 ' § 35113. Within 15 days after such filing, the legislative body may adopt a resolution acknowledging receipt of the notice and approving the circulation of the petition. For a period of 50 days after the adoption of such a resolution (a) no notice of intention to incorporate a new eity shall be filed including any of the territory described in the notice; (b) no notice of intention to circulate a petition for the annexation of any such territory under the provisions of this article shall be filed with or consented to by a legislative body of any city; (c) no petition shall be filed with, and no proceedings shall be instituted by, the legislative body of any city for the annexation of any of such territory under the provisions of this division.' ' § 35115. When a petition for the annexation of any new territory, containing a sufficient number of valid signatures. has been received by its legislative body, jurisdiction over the proceedings is acquired, and until annexation to such city has been defeated by the electors of the territory or until proceedings relating to the annexation become void or are otherwise terminated: '(a) No other petition provided for in this division asking for the annexation of any of the territory described in the filed petition shall be filed, presented to or acted upon by the legislative body of any other city. '(b) No other legislative body shall consent to the circulation of a petition or initiate any proceedings on its own motion under the provisions of this division for the annexation of any part of the territory described in the filed petition. '(c) No notice of intention to circulate a petition for incorporation of any part of the territory described in the filed petition shall be filed.'