author: WASTE, C. J. LANGDON, J., Concurring.

text:
    [Misc. No. 1280.
    In Bank.
    May 28, 1934.]
    In the Matter of AN INVESTIGATION OF THE CONDUCT OF THE EXAMINATION FOR ADMISSION TO PRACTICE LAW.

      H. C. Wyckoff, President, The State Bar' of California, Alfred L. Bartlett, Chairman, The Committee of Bar Examiners, M. R. Kirkwood, Wm. N. Simmons, Gordon Johnson, Orrin K.. McMurray, William. G. Hale, Edwin J. Owen, Arthur E. Briggs and Kimball Fletcher, in support of existing methods of examination.
    Joseph F. Ferrea, William F. Peters, Rollin L. McNitt, C. W. Welch, J. B. Zimbars, Lucas F. Smith, Stanford G. Smith, McFarland, Scheinman & Sisenwein and George L. Keefer, in opposition to existing methods of examination.
   WASTE, C. J.

Immediately following the announcement by the committee of examiners of The State Bar of California of the result of the August, 1933, examinations of applicants for admission to practice law, there were filed in this court by unsuccessful applicants a number of petitions for writs of review, in which the petitioners alleged that they had met the standards set by The State Bar for the examinations. They therefore prayed that the court order the production before it of the particular examination papers of the respective petitioners, together with the records of the examiners showing the markings each had received, and other records and papers which the court might deem necessary for the purpose of ascertaining and determining that, notwithstanding the report of the bar examiners, petitioners were qualified to practice law in this state.

The substance of petitioners’ charges was that the committee of bar examiners had arbitrarily, unjustly and in a discriminatory manner: Determined in advance the number of applicants who should, be permitted to pass the examinations, and had selected questions to be, and which were, propounded to the applicants, of such nature that, rated on an arbitrary, unreasonable and abstract scale of 100 per cent, it was possible to pass or reject at will any number of applicants taking the examinations; and that the committee had refused to consider all of the qualifications of the petitioners for admission to the practice of law.

The formal applications were filed by the petitioners under the provisions of section 38 of the State Bar Act, which this court has construed to be a special enactment, not limiting the review to the scope of a “writ of certiorari” as defined in the Code of Civil Procedure, but permitting a re-examination of the entire record of the particular proceeding complained of. (In re Shattuck, 208 Cal. 6 [279 Pac. 998].) Upon review, the burden is on the petitioner to show wherein the decision of the board or authorized and acting committee is erroneous or unlawful. (State Bar Act, sec. 26.)

Almost coincident with the filing of the formal petitions referred to, the court received a flood of communications from applicants who failed to pass the examinations. Members of the bar and others importuned the court in behalf o E the rejected applicants. Many of these communications from applicants were, we feel, based upon a mistaken conception as to the “right to practice law”. Many of them seemed to 1?e of the view that they had a “vested right” to practice law, and were, in their own minds, firmly convinced that this court should forthwith exercise its inherent power and make its order admitting them to such privilege, notwithstanding the recommendation of The State Bar.

The charges made concerning the results of the August, 1933, examinations were not the first of that nature to be considered by the court. In the case of one Callinan, who failed to pass the bar examination on a previous occasion, the court formulated and announced the policy it would adhere to in considering such complaints, as follows:

“ The attitude of this court is that if any dissatisfied applicant can show that he was denied passage of the state bar examinations through fraud, imposition, or coercion, or that in any other manner he was prevented from a fair opportunity to take the examinations, this court will be willing to listen to his complaint. Inability to pass the examinations, which are successfully passed by other applicants, will, of course, not be inquired into by the court. Also, as you have no doubt found out, one’s general qualifications are not to be substituted for the requisite knowledge of law which one must possess in order to be admitted into the legal profession.”

The report of the results of the August, 1933, bar examinations disclosed that of the 831 applicants taking the examinations only 263, or 31.6, plus, per cent were passed and recommended to this court for admission to practice law. The small percentage of successful applicants, and the number of those who had failed to pass one or more previous examinations, seemed to call for an explanation; and, so great was the insistence with which the present claims were urged that the court deemed it proper to enter into a consideration of the situation to ascertain, if possible, why an increasingly large number of applicants were unable to pass the bar examinations. Accordingly, such an inquiry was ordered. A hearing on the formal petitions and the return of The State Bar was ordered, at which hearing all the unsuccessful applicants were permitted to appear, and at which many of them, in open court, personally stated their views, a few presenting their individual contentions relative to the examinations. Other than from The State Bar, but little contention was advanced or argument offered at the hearing that did not appear in the formal petitions and communications, and with which the justices of this court were already familiar. Speaking generally, these contentions were that the examinations were “very hard”; the questions were an unfair test of the necessary qualifications for the practice of the law; the method of marking or grading the answers was unfair, arbitrary and discriminatory; the applicants’ answers, if properly graded, would have resulted in the required percentage, and in a passing grade entitling the applicants to a recommendation to be admitted to practice law. Charges of unfairness, arbitrariness, fraud and dishonesty in the marking and grading of answers were made by some of the applicants. These charges may be disregarded, for nothing has been developed or shown to substantiate them.

The State Bar, through its board of governors and committee of bar examiners, made its return, and not only put in issue the allegations of the petitions filed, but also challenged the many accusations and charges contained in the petitions and made by other unsuccessful applicants. The method of examining applicants adopted by The State Bar, and the conduct of the examinations were fully explained. The court requested, and The State Bar has transmitted, the entire record pertaining to the August, 1933, bar examinations, including the papers of many applicants taking the tests. The justices of the court have carefully inspected the record, giving particular attention to the questions and answers and to the markings or gradings of many of the applicants.

When the August, 1933, examination was given, the rules governing The State Bar, approved by this court, prevented. many of those failing to pass that examination from taking the next ensuing examination (February, 1934), and some could not take the second ensuing examination. Following the hearing, and the inspection of the record by the court, it ordered that all applicants who failed at the August, 1933, examination, and who received a credit of 50 per cent or more in that examination, but less than 70 per cent, and who failed to pass a previous bar examination, be permitted to take the examination in February, 1934, without regard to the provisions of Rule V, subdivision e, of The State Bar.

The court also requested of The State Bar that the answers of all those applicants who received 60 per cent or more, but less than 65 per cent, and who failed to be recommended for admission, be re-read by the reviewers regularly employed by the board of bar examiners who re-read the papers of those applicants at said examination receiving between 65 per cent and 70 per cent; provided that such re-reading and review be without prejudice to a re-reading and review, if that be deemed necessary by the court, by a committee of the bar selected by the court. As it appeared from the record that, after the “readers” had completed their examination of the papers of the applicants, the papers of 129 of the applicants rated by the readers between 65 per cent and 70 per cent were examined by the “reviewers”, who increased the percentages of 114 sufficiently to permit them to pass, the court also called for the answers of the remaining 15 of the applicants who failed to pass after such review, for the purpose of examining and checking their answers. The full set of books of each of these applicants was referred to the members of the committee of bar examiners for personal examination and review by them. The court is now in receipt of the report on the various steps ordered by it or undertaken by The State Bar or its committees. We have also the report of the result of the examination of applicants had in February, 1934.

The 15 sets of papers referred to the members of the committee of 'bar examiners were personally and carefully reviewed by individual members of the committee, who, after such" review, came to the unanimous conclusion that no one of the 15 applicants could be given a mark which would justify the committee in recommending his admission to the bar. As a further result of this review and the information secured by them, the members of the committee came to the conclusion that the regular board of review, in examining the boobs assigned to it, had given a passing grade when it could be conscientiously done, and that the applicant, when there was a doubt, had been given the benefit of that doubt; and that the previous review had been a liberal one.

The board of review completed its examination of the books of the applicants who received original grades of 60 per cent or more, and less than 65 per cent, conducting such review in the customary manner, and applying the usual standards. The board reported to the committee that it had not found that any applicants were entitled to have the original marks assigned to them raised sufficiently to entitle them to pass the examination. We deem it unnecessary to subject these papers to a further re-reading. Of the 557 applicants who took the examination in February, 1934, 159, or 28.5 per cent passed the tests imposed. Of the 557 applicants, 147 took the examination for the first time. The remaining 410 were repeaters, 214 having failed one previous examination, and 196 having failed two or more previous examinations.

Under the present system of examining and admitting applicants to practice law in this state, we do not see what more can be done for the applicants who failed to attain a grade entitling them to a recommendation for admission to practice. It has been the rule in this state, recognized and adhered to by bench and bar from the early days of the state’s existence, that “The right to practice law is not an absolute right, derived from the law of nature. It is the mere creature of the statute, and when the license is issued and the official oath taken, which authorizes the attorney to exercise the right, it confers but a statutory privilege, subject to the control of the legislature.” (Cohen v. Wright, 22 Cal. 293, 319.) The power of the legislature to provide for the admission of persons to practice law in this state has been continuously exercised. Until the enactment of the present State Bar Act (Stats. 1927, chap. 34, p. 38), the law governing the subject has been found in the Code of Civil Procedure. It is now to be found in section 24 of the Bar Act, as amended (Stats. 1931, chap. 861, p. 1761). By its provisions, the board of governors of The State Bar has the power to fix and determine the qualifications of applicants for admission to practice law in this state, and to constitute and appoint an examining committee to examine applicants for admission, to adminster the requirements for admission to practice, and to certify to this court for admission those applicants who fill the requirements and successfully pass the examinations. It is not shown in these proceedings that any detail in the mechanics provided by the governors of The State Bar in the process of admitting applicants to practice has been omitted. Stripped of much incompetent, irrelevant and immaterial matter, the allegations of the various petitions, and the charges and statements in the many communications received by the court narrow down to a charge that the examination of August, 1933, was unnecessarily hard and, even so, did not properly tend to determine the qualifications of the applicants to practice law. Every petition and every communication emphasizes the charge that the marking of the answers to the questions, and the grading of the applicants, were unduly and excessively strict. It was because of these direct charges that the court determined to, and has, inquired into the examination and its results. We have found nothing that permits of any interference by the court with what appears to have been a duly authorized and conducted examination. Those applicants who failed to pass the examination did not satisy the bar examiners, by their answers to the questions asked, that they possessed sufficient knowledge to entitle them to practice law.

In the days when the “older generation” of attorneys sought admission to practice law in this state, a short oral examination conducted in person by the justices of the Supreme Court, and later by the justices of the District Courts of Appeal, was deemed a sufficient opportunity for the court to determine the qualifications of those seeking admission to practice. The justices were inclined to, and did, give considerable consideration to what, for a better name, was called “the background” of the applicant's preparation. His opportunity for, and the extent of, his education; his ability and aptitude developed in meeting the oral test; the circumstances and surroundings attending his legal studies and preparation to practice law; these and like matters were taken into consideration by the examiners. Even the personal appearance and other phases of the personality of the applicant were known to have turned the scale in favor of one who was within a narrow margin of failure or success. Such an examination no doubt had its defects, but it afforded one opportunity to which we are willing to subscribe as an essential feature in examining applicants for admission to practice law—a personal contact between the applicant and the examining authority, with the resulting opportunity of supplementing the examination in subjects strictly legal with an inquiry along lines of common sense and with regard to the ordinary activities of life, which may well add to the applicant’s other qualifications, and, in connection with those, actually demonstrate that the applicant is qualified to enter the practice of law.

We venture to suggest that our present method of examining applicants for admission to practice is not perfect. One defect is the lack of personal contact just discussed. Another, but possibly contained in the first, is that bar examinations are not a complete test of the qualifications of an applicant. In this connection, we quote from “Notes on Legal Education”, issue of November, 1933: “The bar examination is an auxiliary mechanism which in two or three days attempts to find out how much has been learned in three or four years. Examiners themselves are the first to admit that it does not function accurately in testing the mental ability and the qualities required of a lawyer. It is only one factor in a system which the majority of the bar has agreed should also include a certain amount of general education and a definite minimum quantity of good law school training.” The examinations by the justices in former times cannot now be conducted by them or by others. No court can so examine more than five hundred, or nearly a thousand, applicants and conduct its regular business. We appreciate the difficulties and burdens east upon boards of governors and examining committees by the State Bar Act. They are men of experience and standing in the legal profession, who devote their time and effort to the laborious work assumed by them without compensation beyond the reward that attends the realization of a service well performed. The examination made by the court into the conduct of the August, 1933, bar examination has not brought to light anything discrediting them or the assistants employed by them in the conduct of the examination. So much must be positively and unequivocally stated. We are of the view, however, that more can be accomplished in the way of giving greater consideration to the cases of those students who, on first marking of their answers, are graded within a small per cent, sometimes only a fraction of one per cent, of passing the examination. The committee has been liberal in this regard, as witness the r'e-examination of the papers of, and the final passing of, the 114 “border line” applicants at the August, 1933, examinations, already referred to. While it is not within the record of this hearing, we are informed that the same practice was had following the recently completed February, 1934, examinations. The papers of some 140 applicants who attained a grade of 65 per cent to 70 per cent, inclusive, on first reading were reviewed, and 37 were accorded a passing grade. More can be done in this connection, we believe, by working out a plan of personal contact along the line we have discussed, without in any way departing from the advanced standards to which The State Bar of California has subscribed, with the full approval of the people of the state.

For these reasons, the report of the committee of bar examiners of The State Bar on the August, 1933, examinations is affirmed. The various petitions for review and motions for admission to the bar are discharged.

Shenk, J., Preston, J., and Thompson, J., concurred.

LANGDON, J., Concurring.

I concur in the conclusion reached by the court, but desire to state my view on an issue raised in many of the petitions and not herein considered. The rules regulating admission to practice law prohibit an applicant who has twice failed in the examination from taking the following examination; and further provide that upon three failures, the applicant must allow two examinations to intervene. The purpose of this rule is, no doubt, to. discourage unsuccessful applicants, but I am unable now to perceive its value or its reasonableness. A student who, after failure, engages in further study, should not, I believe, be prevented from presenting himself again for the examination. I am of the opinion that the rule should be modified to permit students to take examinations subsequent to failure, upon a showing of continuous additional study, satisfactory to the committee of bar examiners.


source: Caselaw Access Project

author: SHENK, J.

license: Public Domain

text:
    [S. F. No. 15042.
    In Bank.
    May 28, 1934.]
    R. A. BURLINGAME, Respondent, v. JUSTICE’S COURT OF THE CITY OF BERKELEY, COUNTY OF ALAMEDA, et al., Appellants.

      Nathan G. Gray for Appellants.
    John F. 0 'Sullivan for Respondent.
   SHENK, J.

This is an appeal from a judgment of the superior court in a certiorari proceeding annulling an order of the justice’s court. The matter was submitted to the court on a demurrer to the petition. The effect of the demurrer was to adopt as the return to the writ the facts alleged in the petition. (Stoner v. City Council of Los Angeles, 8 Cal. App. 607 [97 Pac. 692].) The facts set forth in the petition are therefore, uncontroverted and are as follows: Charles Kaufman commenced an action to recover rent in the Justice’s Court of the City of Berkeley (having a population of more than 30,000), naming O. A. Burlingame and Mrs. O. A. Burlingame, father and mother of the petitioner, R. A. Burlingame, as defendants. The affidavit of service showed that a copy of the summons and complaint had been served on O. A. Burlingame. He failed to appear, his default was entered and the court rendered judgment against him for $251 and costs, which was the amount sought to be recovered. A copy of the summons and complaint was also handed to R. A. Burlingame, the son, who made no appearance and no return of service of summons upon him appears to have been made. Seventy-eight days after the entry of the judgment the plaintiff in said action served on R. A. Burlingame a notice of motion for an order substituting him as the judgment debtor in said action. The motion was granted. An order was made substituting R. A. Burlingame as the judgment debtor in said judgment and an execution against him was threatened. No appeal from the order was taken or attempted. Thereafter, R. A. Burlingame filed his petition in the superior court to have the order of substitution annulled on the ground that the justice’s court had exceeded its jurisdiction, and that the order was void. The superior court entered judgment annulling the order, hence this appeal.

It further appears from the petition that R. A. Burlingame was not named as a party to said action; that O. A. Burlingame, the father, was sought by the plaintiff to be sued in said action, and that R. A. Burlingame was in no way interested therein.

The appellant concedes that the justice’s court was without jurisdiction “to make an order substituting R. A. Burlingame as the judgment debtor in the place and stead of 0. A. Burlingame, the judgment debtor named in said judgment”, but insists that what the justice’s court really did was to make an order “correcting the record so as to make it speak the truth”, and that therefore the order was valid.

The answer to the appellant’s position is that it was alleged in the petition and is therefore admitted that the order of substitution was one substituting R. A. Burlingame “as the judgment debtor in the place and stead of the defendant in said action, 0. A. Burlingame, the father of your petitioner”. The appellant is bound by that allegation and the order must be deemed void. This is not an action where R. A. Burlingame was sued under a false or fictitious name or has been sued by an inaccurate designation of his own name; but it is an action wherein he was never sued at all, was not sought to be sued and no attempt was made to bring him into the case until long after the entry of the judgment, which, so far as the record discloses, has never been set aside.

The appellant contends that, even if the order be void, the facts stated in the petition are insufficient to afford relief in certiorari. To justify the issuance of the writ three conditions must concur: 1. An excess of jurisdiction in an inferior tribunal; 2. No right of appeal; and 3. No other plain, speedy and adequate remedy. If any one of these essentials be lacking the writ will not lie. (Noble v. Superior Court, 109 Cal. 523 [42 Pac. 155]; Postel etc. Co. v. Superior Court, 22 Cal. App. 770 [136 Pac. 538]; sec. 1068, Code Civ. Proc.) Also, under section 1069 of the Code of Civil Procedure the application must be made on the verified petition of a party beneficially interested.

The first essential, namely, excess of jurisdiction to make the order, is present. Next,, had the respondent a right of appeal? If he had, it would be on the theory that the order complained of was a special order made after final judgment as contemplated by section 983 of the Code of Civil Procedure and that the petitioner was a party to the action. Assuming that the order was such a special order the petitioner was not a party to the action. In order that he be made a party to the action it was necessary that he be sued or be intended to be sued, as disclosed by the record, and generally that jurisdiction of his person be acquired pursuant to the issuance of process as provided in section 416 of the Code of Civil Procedure. He was not thus or otherwise made a party to the action and was not entitled to appeal under section 983 of the Code of Civil Procedure, as the same was in effect at the time in question, for as that section then read only a party to the action could appeal. The rule is different under the amendment of the section in 1933, and on appeals from the superior court under section 938 of the Code of Civil Procedure, where a party aggrieved may make himself a party to the record and he entitled to appeal even though he may not be a party to the action. When he has the opportunity thus to become a party to the record and then take an appeal from an adverse ruling, he must pursue that remedy; failing to do so he is not entitled to a writ of review. (Elliott v. Superior Court, 144 Cal. 509 [77 Pac. 1109, 103 Am. St. Rep. 102] ; Tattenham v. Superior Court, 155 Cal. 205 [100 Pac. 248].) But here, under the old section 983, merely being a party to the record would not entitle the petitioner herein to an appeal. He must therefore be deemed to be without the right of appeal, for the reason that he is not a party to the action.

It does not appear that the petitioner had a plain, speedy and adequate remedy. The superior court, pursuant to said section 1068, concluded that he had none and we perceive no abuse of discretion in that regard.

The appellant further contends that if the respondent had no right of appeal he is not a “party beneficially interested’’ as contemplated by section 1069 of the Code of Civil Procedure, and is therefore not entitled to the writ. It is claimed that the word “party” is used in the same sense in both sections 983 and 1069. The argument is that if the word “party” as employed in section 983 means a party to the action, the use of the same word in section 1069 is in the same sense. That this is not necessarily so is commented on in Elliott v. Superior Court, supra, where it is pointed out that the use of the words “party beneficially interested” in section 1086 of the Code of Civil Procedure does not mean that one entitled to the writ of mandate must be a party to an action or some other judicial proceeding before he can be so entitled. We think the same reasoning should apply to the language employed in section 1069, where the judgment inter partes is not sought to be reviewed. A person directly and prejudicially affected by an order such as we have on the record before us should be entitled to the writ. He is in effect a party to a collateral proceeding by which it is sought to seize his property for the satisfaction of a debt under a judgment to which he is not lawfully a party. The rule applicable here is stated in a Montana case where the language of the statute is the same as our own. The court in that case said:

“The writ of review will issue only at the instance of a ‘party beneficially interested’ (sec. 9838, Bev. Codes 1921), but this does not require that the applicant be a party to the action or proceeding in which it is alleged the court acted without jurisdiction. ‘The true rule deducible from the authorities is this: In the exercise of its discretionary authority a court . . . upon the application of any party to a judicial proceeding, or person interested in a proceeding . . . because of some special or peculiar injury to himself in person or property . . . may grant the use of its writ of certiorari to review the same for jurisdictional error. ’ (State v. Chittenden, 127 Wis. 468 [107 N. W. 500, 509]; Clary v. Hoagland, 5 Cal. 478; People v. Andrews, 52 N. Y. 445; State v. Rose, 4 N. D. 319 [58 N. W. 514].) ” (State v. District Court, 93 Mont. 439 [19 Pac. (2d) 220, 222].)

The judgment is affirmed.

Waste, C. J., Langdon, J., and Tyler, J., pro tem., concurred.


author: THE COURT.

text:
    [L. A. No. 14513.
    In Bank.
    May 31, 1934.]
    THE CITY OF LOS ANGELES (a Municipal Corporation), Appellant, v. JOHN AGARDY et al., Respondents.

      Ray L. Chesebro and Erwin P. Werner, City Attorneys, Frederick von Schrader, Assistant City Attorney, and Arthur W. Nordstrom and Cuthbert J. Scott, Deputies City-Attorney, for Appellant.
    Edward Brody and A. H. Swallow for Respondents.
   THE COURT.

The City of Los Angeles appeals from a judgment of dismissal and the order taxing costs entered in the above-entitled action in favor of Jennie and William L. Riley. The facts are undisputed and are as follows:

The city in 1923 commenced the above-entitled action for the purpose of condemning for street purposes certain parcels of real property. The action was instituted under the provisions of the Street Opening Act of 1903 (Stats. 1903, p. 376, as amended). Among the numerous defendants in that action were respondents herein, Jennie and William L. Riley, owners of part of the property sought to be condemned. After the usual proceedings in such actions an interlocutory judgment assessing the damages of respondents was made and entered on August 17, 1925. The damages so assessed were never paid. On .August 6, 1926, in another action in the same court entitled Blackburn v. City of Los Angeles, to which action respondents were not parties, the city was permanently enjoined from further proceeding under the ordinance authorizing the improvement. The judgment in this action has long since become final. Subsequently the city council of Los Angeles, by resolution, authorized the city attorney to present to the council an ordinance abandoning the entire proceeding. No further steps were taken by the council in reference to the proposed ordinance of abandonment. Apparently, some time later, new proceedings were commenced involving the same improvement. On June 14, 1930, respondents Riley filed a notice of motion to dismiss the original action on the ground that it had been abandoned, and for a judgment of dismissal and for costs and attorneys’ fees pursuant to the provisions of section 1255a of the Code of Civil Procedure. Both parties filed affidavits, the defense of the city being predicated on the Blackburn injunction. The trial court ruled that the city .had abandoned the action within the meaning of section 1255a of the Code of Civil Procedure, and that respondents were entitled to recover their costs including attorneys’ fees. The Rileys thereafter filed their cost and disbursement bill for over $8,000, and appellant moved to tax costs, challenging the various items as excessive and unlawful. In January, 1931, there was entered a minute order of the trial court taxing costs of respondents in the sum of $4,335. The award was made in a lump sum without specifying the items thereof. The city appeals.

It is our opinion that the legal problems presented on this appeal have been determined adversely to respondents by the recent decision of this court in City of Los Angeles v. Abbott, 217 Cal. 187 [17 Pac. (2d) 993].) In the Abbott case it was held in a proceeding under the identical act here involved (Street Opening Act of 1903, supra) that when the city is permanently enjoined from proceeding, it is not such an abandonment as is contemplated by section 1255a of the Code of Civil Procedure, which purports to allow the condemnee to recover his attorney fees when the condemnor abandons. The only difference between the Abbott case and the instant case is that in the Abbott case the permanent injunction was issued prior to the entry of the interlocutory judgment, while in the present case such injunction issued a little less than a year thereafter. That fact, however, does not make inapplicable to the present case the rule of law enunciated in the Abbott ease. The holding in the last-named ease was that section 1255a does not apply to an involuntary abandonment; that since the right to attorneys’ fees is purely statutory and since that section is the only section allowing attorneys’ fees, no such fees can be recovered in case of an involuntary abandonment. (See, also, City of Los Angeles v. Abbott, 129 Cal. App. 144 [18 Pac. (2d) 785].) The abandonment in the instant case was clearly involuntary. Eespondents, recognizing the legal effect of the Abbott case, seek to avoid its application by the contention that since more than thirty days elapsed after the interlocutory judgment before the injunction was issued, under section 1251 of the Code of Civil Procedure, their right to attorneys’ fees became “vested”. This contention of respondents is wholly illogical. If anything became “vested” after the lapse of thirty days after the interlocutory judgment was rendered it would be the right to the entire amount assessed, and not merely the right to attorneys’ fees. If the right to the entire amount assessed became “vested” at that time we would then be presented with an incongruous situation where the special fund to pay the judgment could not be raised because of the injunction, but respondents would be entitled to the full amount of the judgment. This clearly illustrates the inapplicability of section 1251 of the Code of Civil Procedure to proceedings under the Street Opening Act of 1903. So far as pertinent here that section provides :

“Time of paying assessment. The plaintiff must, within thirty days after final judgment, pay the sum of money assessed. In case the plaintiff is the state of California, or is a public corporation, and it appears by affidavit that bonds of said state or public corporation must be issued and sold in order to provide the money necessary to pay the sum assessed, then such sum may be paid at any time within one year from the date of such judgment; provided, further, that if the sale of any such bonds cannot be had by reason of litigation affecting the validity thereof, then the time during which such litigation is pending shall not be considered a part of the one year’s time in which such payment must be made.”

It is true that in the Abbott case, supra, it was held that section 1255a of the Code of Civil Procedure was applicable to proceedings under the 1903 act, but it does not follow that all of the sections of the Code of Civil Procedure, applicable to eminent domain proceedings, apply to proceedings under the 1903 act. In fact, it was only because the 1903 act was entirely silent as to what constituted an abanonment that section 1255a was held applicable. The Abbott case distinctly recognizes that where the 1903 act has provisions contrary or inconsistent with the general provisions of the code, the act governs. This is the rule long established by the eases. (Frank v. Maguire, 201 Cal. 414 [257 Pac. 515]; City of Los Angeles v. Oliver, 110 Cal. App. 248 [294 Pac. 760]; City of Los Angeles v. Oliver, 102 Cal. App. 299 [283 Pac. 298].) Section 31 of the Street Opening Act of 1903 provides that the awards allowed condemnees under that act shall be paid when there is sufficient money in the special assessment fund to pay them. That time cannot possibly occur until the assessments are paid or the assessment bonds sold—a minimum period, it is conceded, of seven or eight months. These provisions are totally inconsistent with section 1251 of the Code of Civil Procedure providing for the thirty-day period, and therefore that section is inapplicable.

It should also be mentioned that the one-year exception found in section 1251 in reference to bonds has no reference to bonds issued under the 1903 act. The bonds referred to in that section are “bonds of said state or public corporation’’—that is, general obligation bonds of the state or city. The bonds issued under the 1903 act or the Auxiliary Street Opening Bond Act of 1911 (Stats. 1911, p. 1192, as amended) are not such bonds. (See Brooks v. City of Oakland, 160 Cal. 423 [117 Pac. 433].) Under the 1903 and 1911 acts the issuance of the bonds and the determination of the amount thereof are deferred until after the assessments levied have become delinquent. It is obvious, therefore, that no portion of section 1251 of the Code of Civil Procedure has any application to proceedings under the 1903 act.

Such a holding does not mean, as respondents contend, that a condemnee in such a case is entirely at the mercy of the condemnor as to when his judgment will be paid. We do not mean to hold that a city, after an interlocutory judgment has been entered in proceedings under the 1903 act, could deliberately refuse to further proceed by the levying and collection of assessments and the issuance of bonds, and so fail to create the special fund with which the judgment is to be paid. Any such unreasonable delay, under a proper state of facts, could be interpreted by the trial court as a voluntary abandonment entitling the condemnee to a judgment of dismissal and an award of attorneys’ fees under section 1255a of the Code of Civil Procedure. But in the instant case respondents took no steps to protect their rights until after the city had been enjoined from further proceeding. As already held, that was too late. The abandonment then become involuntary and no attorneys’ fees can be recovered.

Respondents contend that the Blackburn injunction did not declare the ordinance involved void, and is thus to be distinguished from the injunction involved in the Abbott case. A reading of the two decrees indicates that in fact the Blackburn decree is broader than the decree involved in the Abbott ease. The injunction here involved decreed “That ordinance No. 45,575 (New Series), and all proceedings under said ordinance are hereby restrained and enjoined from paying out any money of said city . . . for any costs or expenses incurred in connection with the improvements provided by said ordinance No. 45,575 (New Series),” and further that the city and its employees “are forever enjoined and restrained from proceeding under the said assessment or from taking any action thereunder”. The decree effectually restrained the city from further proceeding under the ordinance.

Appellant also contends that although respondents are entitled to their usual costs they are not entitled to any allowance for expert witness fees except the statutory amount for witnesses generally. This is undoubtedly correct, but it does not appear whether the trial • court made any such allowance, the costs allowed being awarded in a lump sum. For the guidance of the trial court it should be added that although it is true, as respondents claim, that section 1871 of the Code of Civil Procedure in reference to expert witness fees has no application to this ease, having been passed after the trial of this action, under the decision of the Abbott case all that respondents are entitled to is their ordinary costs, which do not include expert witness fees.

The respondents are entitled to a dismissal of the action with ordinary costs of suit. Inasmuch as it cannot be ascertained what the ordinary costs are, the award being in a lump sum, the judgment and order appealed from will have to be reversed. It is so ordered. Both sides to bear their own costs on this appeal.


author: THE COURT. PRESTON, J., Dissenting.

text:
    [L. A. No. 14503.
    In Bank.
    May 31, 1934.]
    G. C. DE GARMO, Petitioner, v. THE SUPERIOR COURT OF THE COUNTY OF LOS ANGELES et al., Respondents.

      G. C. De Garmo, in pro. per., Newby & Newby, and W. M. Crane for Petitioner.
    Everett W. Mattoon, County Counsel, Fred M. Cross, Deputy County Counsel, and Meserve, Mumper, Hughes & Robertson for Respondents.
   THE COURT.

A hearing was granted in this case after decision by the District Court of Appeal, Second Appellate District, Division One. Upon further consideration, we are satisfied that the said court has correctly determined the issues, and we therefore adopt the opinion of Mr. Justice pro tempore Desmond, together with a part of the opinion of the court on petition for rehearing, as the opinion of this court. They read as follows:

“This is an application for a writ of mandate or such other writ as may be appropriate to secure cancellation of an order made by a judge of the Superior Court of Los Angeles County approving an undertaking upon an appeal .from a judgment entered in favor of plaintiff for the sum of $37,480; and also to secure issuance by the county clerk of a writ of execution upon the judgment which plaintiff, here the petitioner, has obtained.
“While the trial court was conducting the hearings to determine the sufficiency of the undertaking entered into by various sureties, the defendants offered to post the sum of $5,000 with the county clerk to be held as additional security under the bond, the court having indicated that it desired an additional $20,000 in the way of sureties above those appearing on the undertaking, and the $5,000 cash being offered in lieu thereof. Counsel for defendant agreed that a cashier’s check endorsed to L. E. Lamp ton, County Clerk, should stand as part of the bond or undertaking, ‘the sum to be held by the County Clerk, to abide the decision of the reviewing court in case judgment appealed from is affirmed shall be applied in satisfaction of the judgment’. This arrangement followed a declaration by the trial judge that he hesitated about allowing every item presented as a part of the aggregate undertaking of $74,960. There can be no question, therefore, that the $5,000 was intended .for and was accepted by the court as part of the undertaking, especially in view of the language employed in the endorsement entered by the court upon the document as follows: ‘May 22, 1933. The appellants having deposited with the clerk the sum of $5,000.00 as part of the undertaking and to be used to satisfy any final judgment against appellants, the written undertaking is approved. Walton J. Wood, Judge.’ This conclusion is confirmed by consideration of the formal order approving the undertaking signed May 24, 1933, nunc pro tunc as of May 22, 1933.
“ It is apparent from the foregoing that the undertaking upon appeal, furnished by appellant and by the court approved, does not meet the requirement of section 942 of the Code of Civil Procedure, because that section makes no provision for a bond of a dual nature, part cash and part surety, but expressly provides for a written undertaking binding the sureties personally to pay whatever is due from appellant upon affirmance of the judgment, if appellant fails to pay. Section 948 of the Code of Civil Procedure provides that ‘in all cases where an undertaking is required on appeal by the provisions of this title, a deposit in the. court below of the amount of the judgment appealed from, shall be equivalent to filing the undertaking’. Inasmuch as the judgment in this case was $37,480, it is manifest that the deposit of $5,000 does not meet the requirement of section 948.
“ We have then a situation in which appellant has failed to furnish a sufficient undertaking or a sufficient cash deposit within the terms of the code provisions. As dated in Malm v. Superior■ Court, 53 Cal. App. 425, 428 [200 Pac. 360, 361] : ‘A stay of execution upon a judgment on appeal therefrom is a matter of statutory regulation and can only be had upon a substantial compliance with the provisions of the code. ’ Since there is here no substantial compliance with the code requirements, it follows that petitioner is entitled to his writ.
“ It is suggested by respondent Lampton in his petition for rehearing that the writ of mandate may not properly issue against him, because the Superior Court was not made a party before this court. In the argument under that heading it is further suggested that where the interests of parties will be affected by the issuance of a writ, they must be made parties to such proceedings.
“The Superior Court, together with respondent Lampton as county clerk, was named as a respondent in this proceeding. The court issued its alternative writ to the clerk alone. If we admit for the purposes of the argument that we should have issued the writ to the Superior Court as well as to the clerk, and if we further agree that it would have been better practice to direct that the parties in interest in the action in the court below be brought in to defend their interests in the matter, nevertheless the actual presentation to this court was, in fact, not thereby altered. Respondent Lampton was represented here by the same counsel who had appeared for the defendants in the action in the court below; and we do not doubt that the argument made by them in the proceeding here upon the merits was exactly the same argument which they would have made if the writ had been issued to the Superior Court and to the parties in interest in the action. Therefore it would be an idle act to grant a rehearing merely for the purpose of bringing in additional parties.
“The order herein made for issuance of the peremptory writ has been by this court rested solely upon the opinion that the order of the Superior Court relied upon by respondent to justify his refusal to issue the execution was a void order. From this we concluded that the case here presented ‘a situation in which appellant has failed to furnish a sufficient undertaking or a sufficient cash deposit within the terms of the code provisions’. We adhere again to the resulting conclusion that the writ should issue against respondent clerk, the purpose being ‘to compel the performance of an act which the law specially enjoins, as a duty resulting’ from his office. (Code Civ. Proc., sec. 1085.)”

It is ordered that a writ of mandate issue to the County Clerk of Los Angeles County, respondent herein, commanding him to issue an execution upon the judgment as prayed for, unless within thirty days from the entry of this order the appellants file an undertaking to stay execution approved by the lower court.

PRESTON, J., Dissenting.

I think the bond is sufficient.

Rehearing denied.

Preston, J., dissented.


text:
    [L. A. Nos. 13194, 14004.
    In Bank.
    May 31, 1934.]
    SUNNY SLOPE WATER COMPANY (a Corporation), Respondent, v. CITY OF PASADENA (a Municipal Corporation) et al., Appellants.

      Harold P. Huís, City Attorney, and John W. Holmes, Deputy City Attorney, for Appellants.
    Woodruff, Burr & Smith for Respondent.
   THE COURT.

The City of Pasadena and certain of the city officials appeal from a judgment determining that a certain zoning ordinance and a so-called boiler ordinance of the City of Pasadena are inapplicable to respondent, and also appeal from the order taxing costs. The facts giving rise to the controversy are as follows f

Since 1895 the respondent Sunny Slope Water Company has been engaged in the business of owning, developing and acquiring water, water rights and waterworks, and in distributing water at cost to its stockholders in a territory embracing some 2,282 acres. For many years respondent company has owned the underground water rights to and the right to drill for water on a certain 160 acres, which area, until 1930, was entirely outside the city limits of the City of Pasadena, and adjacent to the southeast boundary of that city. Arthur and Sedenia Richards, not parties to this proceeding, are the owners of the surface rights to a certain lot designated as lot nine, which lot is located within this 160 acres. It is conceded that the Richards acquired their title to lot nine subject to and. with the full knowledge of the rights of respondent company. In December, 1929, respondent company notified Richards of its intention to drill a well and locate a pumping plant on lot nine, pursuant to its admitted rights. On February 14, 1930, respondent company commenced the drilling of a 24-inch well on lot nine and continued its operations until March 20, 1930, when the casing in the well collapsed. In the meantime Richards and other property owners in the vicinity approached certain officials of the City of Pasadena with the suggestion that a portion of the 160 acres above mentioned should be annexed to the city. Pursuant to the method provided by law, a portion of the 160 acres, consisting of 30 acres and known as Lombardy annex, on March 8, 1930, was annexed to the City of Pasadena. Included within this 30 acres was lot nine, owned by Richards. The annexation was accomplished by the affirmative vote of three of the four qualified voters in the area.

After the collapse of the contemplated well on March 20, 1930, and after the annexation had been completed, respondent company desired to drill a new well about 50 feet south of the collapsed well. The site of this proposed well was also on the Richards property. Respondent’s contractor, on May 20, 1930, applied to the city manager of the City of Pasadena for a permit to resume operations with a steam engine, boiler and well rig. This permit was requested under the so-called boiler ordinance of the City of Pasadena. This ordinance had been passed in 1928 and provided that it shall be unlawful to install, set up or commence the operation of any steam boiler unless a permit be first obtained. It is conceded that the request for a permit was in proper form. The city manager denied the request, but did issue a limited permit for the purpose of allowing respondent’s contractor to set up necessary machinery to remove the casing from the collapsed well. Respondent company then submitted its request for a permit to drill the new well directly to the board of directors of the city, but that board likewise denied the request. The request for a permit was renewed on several occasions, but each time was denied. Respondent company offered to construct its pump-house underground, to sound-proof the pump-house, and to landscape the area. The city officials, however, refused to grant the permit. This action was then commenced on July 10, 1930. On July 22, 1930, the general zoning ordinance of the City of Pasadena was duly and properly amended in the manner provided by law, so as to place Lombardy annex within “Zone E”, as defined in the ordinance, said zone being the most highly restricted residential zone, all commercial uses being prohibited therein. It is conceded that in 1929 the City of Pasadena was and now is actively engaged in the production, distribution and sale ■ of water to its customers in the City of Pasadena and county of Los Angeles. The purpose of this action was to have the boiler and zoning ordinances declared inoperative as to respondent company. The trial court found in favor of respondent and the city and its officers appeal.

The findings of the trial court are voluminous. No useful purpose would be served by reviewing them in detail. So far as necessary for the purposes of this appeal, in addition to the above facts, the trial court found that if a permit had been issued under the boiler ordinance, it would not endanger the life, health or property of the citizens of the city, and that the refusal of the city manager and board of directors to grant the permit was, under the facts, arbitrary and unreasonable. The zoning ordinance was likewise found to be, as to respondent, inapplicable and discriminatory. The court made a whole series of findings dealing with the motives and purposes of the city officials in assisting in the annexation, in denying the request for a permit, and in causing the zoning ordinance to be amended. The theme of these findings is that the city is engaged in the water business as a competitor of respondent company, and that the city desired to prevent respondent from drilling and extracting water from the Pasadena basin, which was also the source of supply of the city. It is found as a purported fact that the zoning ordinance was amended solely for the purpose of preventing respondent company from drilling the well, and was not passed to protect the public peace, health, safety, security or general welfare of the citizens. It is also found, in some detail, that the 30 acres included within Lombardy annex are largely devoted to farming and agricultural pursuits; that there are other commercial wells in the general vicinity; that the city is engaged in acquiring an extensive area adjacent to Lombardy annex for water purposes; that the city operates commercial wells belonging to it within zone E in various places in the city. By its judgment the court declared that the boiler and zoning ordinances were, as to respondent company, unreasonable, discriminatory, unconstitutional and unenforceable; ordered that the city manager issue a permit; and enjoined the city and its officials from interfering with the drilling of the well.

Before discussing the specific problems presented on this appeal, certain general observations should be made. The general validity of the zoning ordinance is conceded by all involved. Moreover, the fact that Lombardy annex was not zoned until after the application for a permit is without significance. The rights of the parties are to be determined as of the present time rather than the time of the application for a permit. By its application for a permit before the zoning ordinance was passed, "respondent company secured no vested right to the same. (Wheat v. Barrett, 210 Cal. 193 [290 Pac. 1033]; Brougher v. Board of Public Works, 205 Cal. 426 [271 Pac. 487] ; Miller v. Board of Public Works, 195 Cal. 477 [234 Pac. 381, 38 A. L. R. 1479].)

The specific question here presented is whether the zoning ordinance, generally valid, is void as to respondent company, because of the facts shown by the record. Before respondent can succeed in its efforts to avoid the application of the ordinance to it, it must be held that it established that the ordinance is unreasonable as to it, in the face of a strong presumption to the contrary. (Miller v. Board of Public Works, supra; Euclid v. Ambler Realty Co., 272 U. S. 365 [47 Sup. Ct. 114, 71 L. Ed. 303, 54 A. L. R. 1016].)

Examining the record and the various exhibits transmitted to this court by stipulation, it appears that the main part of the City of Pasadena lies to the northwest of Lombardy annex. At the present time, the 30 acres included within the annex are largely devoted to the growth of citrus and walnut trees.

The tank of the El Campo Water Company, a commercial water company, is located near the proposed well of respondent company, having been located there for over 20 years, and a high tension power line carrying 220,000 volts runs through the area. The evidence shows that power lines of equal power transverse many high-class residential areas.

There are several high-class residences close to the proposed well site. Within a circle with a quarter mile radius .the proposed well being the center, there are 18 residences, mostly of a high-class character, some with from 21 to 28 rooms. There are 88 residences within a half mile radius of the proposed well site. The city of San Marino lies westerly of Lombardy annex, and the area there included is high-class residential. There are several improved streets running through or along the boundaries of the annex. The only commercial development, near by, in addition to the growing of citrus and walnut trees, consists of the El Campo well and the power lines already mentioned; another well of the respondent company located outside the city limits; and the city’s wells above referred to. The portions of the City of Pasadena contiguous to the annex are zoned as first-class residential. Eaton wash, a stream bed bordering the annex, is wooded and undeveloped. Bespondent’s testimony emphasizes the fact that the area is devoted to homesites with large grounds, with orchards surrounding them. There can be little doubt, from a reading of the record, that Lornbardy annex is now a region characterized by citrus and walnut groves, and recently turned to development as a large lot residential tract. The annex stands directly in the path of the future residential development of San Marino and the City of Pasadena. The density of population cannot possibly be held to be the conclusive test. The determination that commercial uses should be entirely excluded from certain areas is primarily a matter of legislative concern. Such legislation is not only based on existing conditions, but also looks to the future. As was said by this court in Jones v. City of Los Angeles, 211 Cal. 304, 308 [295 Pac. 14]: “It cannot be seriously contended that relative density of population in the permissive and restricted districts is a controlling test of the validity of a zoning plan, so far as the claim of discriminatory classification is concerned. The object of the present ordinance is to exclude hospitals for the treatment of insanity and nervous diseases from those districts which are devoted to residential purposes, because it is in such districts that they adversely affect the public welfare. This being so, it is immaterial whether the restricted district is densely or sparsely populated, if it is residential. The ordinance is concerned with the nature of the district. A growing residential area is as reasonable an object of protection as one which is fully built up. On the other hand, while the permitted districts include some territory which is densely populated, that territory is not residential in character. It is devoted to business purposes and hence requires none of the special regulation deemed desirable to foster and protect the development of homes and the maintenance of a proper environment for children. Moreover, the argument of plaintiffs, carried to its logical conclusion, would destroy the usefulness of zoning ordinances, as an effective means of city planning, for it would require an examination of the regulation solely on the basis of present conditions. But zoning legislation looks to the future. It is a constructive movement in municipal legislation and, as such, it has received the approval of our courts. ’’

In Ex parte Hadacheck, 165 Cal. 416, 420 [132 Pac. 584, L. R. A. 1916B, 1248], the rule is stated as. follows: “Whether or not this trade, however strictly the manner of its conduct may be regulated, can be pursued at all in a residential district without causing undue annoyance to persons living in the district, is certainly a question upon which reasonable minds may differ. If this be so, the propriety of entirely prohibiting the occupation within such districts is one for the legislative determination. The courts will not substitute their judgment upon this issue for that of the legislative body.”

Of course, zoning ordinances, or ordinances excluding any commercial use, must be reasonable, and the use excluded must bear some reasonable relation to the public interest. But, as indicated from the above quotations, where reasonable minds may differ as to the propriety of the classification, the legislative determination is conclusive. The principle is quite clearly stated in Marblehead Land Co. v. City of Los Angeles, 47 Fed. (2d) 528, 532, as follows: “The legislative body intrusted with the police power has a wide discretion which cannot be interfered with by the courts. Their laws or ordinances enacted in pursuance of the police power are invested with a strong presumption of validity. If the question as to whether or not the legislation is unreasonable or arbitrary or an unequal exercise of power is fairly debatable, the legislation must be upheld as valid. ’ ’

It is quite clear that a commercial water well and pumping plant is a commercial use and may quite properly be excluded from a residence zone. The problem is the same in principle as that involved in the Marblehead Land Company case above referred to. In that case it was contended that the city of Los Angeles acted unreasonably in zoning an area for residential purposes, consisting largely of unimproved land, and thereby excluding the plaintiff’s proposed use for the production of oil and gas. The plaintiff had invested $136,000 in the area in the anticipation of its proposed use at a time when such use was permitted. Later the area was rezoned for residential purposes. In holding the ordinance valid, the Circuit Court of Appeals for the Ninth Circuit stated:

“In view of the surroundings of the appellant’s property, the fact that it is in the line of development of the residential district of Los Angeles, that expensive dwellings had already been erected in the neighborhood, that adjacent property has been improved by'opening streets and paving and sidewalking the same, there, would seem to be little doubt of the right of the city under zoning ordinance to prevent the use of appellants’ property for industrial and manufacturing plants or erection of gas works, which would be entirely out of harmony with the development of the neighborhood.
“The situation disclosed by this record, however, does not deal primarily with the right to improve appellants’ property by the erection of buildings thereon, but rather with the right of the owner to produce from the soil the minerals therein contained. ... If there is any difference between the taking of the unearned increment by zoning ordinances and the taking of the inherent value of the soil or its contents, it arises from the fact that it might be deemed unreasonable to prevent a man from. developing natural gas upon his property and reasonable to prohibit the erection of gas works, because in the former case gas works can be erected in other suitable zones or districts in the city, while in the case of natural gas it must be reproduced from the land in which it exists. It might therefore be held that an ordinance is reasonable where it requires the establishment of gas works or oil refineries in a certain zone and prohibited in others, and might be unreasonable and therefore void because it prohibited an owner from producing natural gas from the land in which it was located. In either event, however, there can be no question of the inherent right of the city to control or prohibit such production, provided it is done reasonably and not arbitrarily. In that event the loss must fall upon the owner whether it prevents him from erecting structures or establishing industries which he desires to erect or establish, or whether it prevents him from developing the inherent potentialities of his land.”

The United States Supreme Court denied a petition for a writ of certiorari in this case. (284 U. S. 634 [52 Sup. Ct. 18, 76 L. Ed. 540].)

The precise question involved on the instant appeal has been recently decided adversely to respondents by the District Court of Appeal in City of South Pasadena v. City of San Gabriel, 134 Cal. App. 403 [25 Pac. (2d) 516], in which case this court denied a hearing, and in which the United States Supreme Court has recently dismissed the appeal and denied certiorari. In that ease the city of South Pasadena purchased a tract of land in the city of San Gabriel for the purpose of drilling a water well thereon. South Pasadena contemplated using the well to supplement its water supply. The city of San Gabriel had an ordinance somewhat similar to the boiler ordinance here involved, prohibiting the drilling of a well without a permit. Apparently no zoning ordinance was involved. The city of South Pasadena requested a permit, which request was refused, whereupon that city sought by mandate to compel its issuance. There are some factual differences between this and the instant case, but on the whole the factual situations involved are remarkably similar. The action of the city officials in denying the permit was upheld. In so doing, the Appellate Court stated:

“It is contended by South Pasadena that ordinance 197 is invalid because it confers arbitrary and uncontrolled powers over the disposition of petitions for permits to drill for water. It is said that where a business is lawful, and permits for its inauguration are required, an ordinance providing the requirement must contain rules and regulations to be followed by the officer or officers who consider applications for permits. This is indeed the rule as to businesses which cannot work harm to the morals, health or general welfare of the city in which it is to be inaugurated, or to citizens in its proposed neighborhood. But the rule is different where the business, although perfectly lawful in character, may work such harm in its conduct. In such instances the granting or refusing of a permit to operate the business may be confided to the reasonable and proper discretion of an officer or officers, without the imposition of rules to regulate or guide their actions. (Gaylord v. Pasadena, [175 Cal. 433 (166 Pac. 348)] supra; In re Holmes, 187 Cal. 640 [203 Pac. 398]; Parker v. Colburn, 196 Cal. 169 [236 Pac. 921].) We think we may take judicial notice that the drilling for water and the consequent use of the water thereby developed, together with the employment and maintenance of such agencies as may naturally conduce to such use, might under certain circumstances and in certain portions of the territory of San Gabriel, or of any other city, be detrimental to the health, comfort or welfare of its inhabitants.”

After discussing the nature of the district where the proposed well was located, the court continued:

“It may be true that the district in question here is partially subjected to horticultural and agricultural pursuits in the same manner as are some parts of rural territory, but it is nevertheless urban and not semi-rural. That is settled by the fact that it lies within the territorial limits of San Gabriel. As a part of the city, and considering its condition at the time the evidence was taken in the trial court, as well as its adaptability for further settlement and improvement as a residence district, it is entitled, together with the remainder of San Gabriel, to be protected from the invasion of business establishments which, however lawful, are yet susceptible of a manner of operation injurious to the health, comfort or general welfare of its inhabitants.”

The court concluded with the following observations:

“South Pasadena attempts to make much of the fact that in the operation of its water plant it is engaged in the discharge of a sacred trust in behalf of the beneficiaries thereof, the people of the portion of the city which is served from the water system. It is contended, in effect, that because of this circumstance South Pasadena was entitled to special consideration at the hands of the city council of San Gabriel when the former city asked for the permit we have so often mentioned. We think the circumstance leads to the contrary conclusion. San Gabriel, too, is engaged in the administration of a trust, that of protecting its people from dangers to their health, comfort and general welfare. San Gabriel is not concerned with the trust with which South Pasadena burdened itself when it embarked in the conduct of the water business, if the execution of the latter trust improperly impinges upon the rights of the people of San Gabriel. When South Pasadena asked the permit from the city council of San Gabriel, no matter how honestly that request was made, no matter how badly South Pasadena required an augmentation of its water supply, the latter city asked too much. Under the law South Pasadena could not levy such a tribute upon San Gabriel as would have been paid if the permit had been granted. To grant the permit would have been to impose upon San Gabriel no inconsiderable portion of the burden which rests upon South Pasadena as a purveyor of water to a portion of its territory. The city council of San Gabriel was amply justified in refusing the permit.
“At the back of the above discussion lies the rule that official duty is presumed to have been correctly performed, as well as the rule that where, in such instances as that which presented itself to the city council of San Gabriel, there is a question upon which minds may differ—a conflict of evidence—the decision of the body concerned cannot be disturbed. But there is little reason to invoke these rules, after all, as we fail to perceive how the city council of San Gabriel could properly have granted the requested permit.”

The reasoning of that case is equally applicable here. Of course, this court recognizes that the drilling for water and the serving of it to the public is a very important commercial enterprise. We are not here presented with a situation where the only water-bearing area available for respondent’s purposes has been zoned for residential purposes. Such a situation would present questions not involved on this appeal. Each case must be determined on its own merits. In the instant case, the evidence shows that respondent owns the underground water rights to 130 acres of land adjoining Lombardy annex, outside the city limits, on which it may drill water wells. The evidence is quite clear that the major portion of the entire 160 acres overlies the same supply of underground water.

Respondent emphasizes the fact that the city is also engaged in the water business and owns and operates wells and pumps in the restricted area in other portions of the city. Most of these wells antedated the zoning ordinance, but even as to the new wells it is quite clear that the city is not bound by its zoning ordinance. (C. J. Kubach Co. v. McGuire, 199 Cal. 215 [248 Pac. 676] ; Balthasar v. Pacific Electric Co., 187 Cal. 302 [202 Pac. 37, 19 A. L. R. 452].)

As already stated, the trial court made extensive findings in reference to the alleged motives and purposes of certain city officials in assisting Richards and the other property owners in Lombardy annex in working out the details of the annexation, in denying the permit and in passing the amendment to the zoning ordinance. The findings in effect declare that because of the activity of certain city officials in these matters the annexation was consummated, the permit denied, and the amendment to the zoning ordinance passed with some evil motive.. As far as the zoning ordinance is concerned, none of these activities was connected up with the legislative board of the city, the board of directors. In any event, all these findings, falling, as these do, far short of charging actual fraud, are entirely immaterial. It is well settled that the purpose or motive of the city officials in passing an ordinance is irrelevant to any inquiry concerning the reasonableness of the ordinance. In the case of In re Smith, 143 Cal. 368, 373 [77 Pac. 180], this court stated the rule as follows:

“ ... as it must happen in the case of many of these ordinances that the unreasonableness and oppression is not apparent upon the face thereof, evidence in such cases will be admitted to show the existing conditions. But this evidence will not go to motive. If the conditions justify the enactment of the ordinance, the motives prompting its enactment are of no consequence. If the conditions do not justify the enactment, the inquiry as to motive becomes useless. This is but in accordance with the well-settled rule, and for that reason the allegations touching the motive of the board of supervisors in passing the ordinance here under consideration have been and are entirely disregarded.”

In Soon King v. Crowley, 113 U. S. 703 [5 Sup. Ct. 730, 28 L. Ed. 1145], the United States Supreme Court states the reason for the rule as follows:

“Their motives, considered as the moral inducements for their votes, will vary with the different members of the legislative body. The diverse character of such motives, and the impossibility of penetrating into the hearts of men and ascertaining the truth, precludes all such inquiries as impracticable and futile.”

See, also, Ex parte Yung, 7 Cal. App. 440 [94 Pac. 594]; State v. Superior Court, 155 Wash. 244 [284 Pac. 93].

Appellants also appeal from the order taxing costs. The only item complained of is the cost of a day by day transcript. The parties had stipulated that a daily transcript should be prepared and, in case of an appeal, the daily transcript could be used. Nothing was said in the stipulation as to who should pay for the transcript or whether it could properly be included in the cost bill by the winning party. As far as the record shows, when this stipulation was stated to the trial court, no remark of any kind was made by him. Respondent contends, however, that the trial judge said “Very well.” It is not contended that any order in reference to the daily transcript was made by the trial court other than this observation. Such statement falls far short of an order requiring the preparation of a daily transcript. The right to recover costs is purely statutory and it is only when the trial court has ordered the transcript to be prepared that the statute (sec. 274, Code Civ. Proc.) allows the cost thereof to be recovered. (See Senior v. Anderson, 130 Cal. 290 [62 Pac. 563] ; City of Los Angeles v. Pomeroy, 124 Cal. 597 [57 Pac. 585].)

For the foregoing reasons, the judgment and order appealed from are and each is reversed.


text:
    [L. A. No. 14585.
    In Bank.
    June 11, 1934.]
    GEORGE GOBEL, Petitioner, v. INDUSTRIAL ACCIDENT COMMISSION et al., Respondents.

      Geo. W. Rochester and Burke Mathes for Petitioner.
    Everett A. Corten and Horace W. B. Smith for Respondents.
    R. P. Wisecarver, B. E. Pemberton and Edmund D. Leonard, as Amici Curiae on Behalf of Respondents.
   THE COURT.

By this application the petitioner seeks to have this court review and annul the action of the respondent commission in dismissing for an asserted lack of jurisdiction a petition to reopen and to adjust a claim based on an alleged new and further disability in the nature of permanent disability resulting from the original accident for which petitioner has already received an award for temporary total disability. The dismissed petition was filed with the commission two days before the expiration of 245 weeks from the date of the accident.

It appears that petitioner on September 3, 1928, and while acting in the course and scope of his employment for the Thompson Paint and Glass Company, slipped and fell to the ground from a window-sill on the fifth floor of a building and was severely injured. Compensation benefits and necessary medical services were furnished by the employer and its insurance carrier until May 9, 1929.

Petitioner thereafter, and on August 22, 1930, made application to the respondent commission for an adjustment of his claim for compensation for temporary disability resulting from the accident. Upon hearing had the commission on November 19, 1930, found, in substance, that petitioner had suffered temporary total disability from the date of the accident on September 3, 1928; that the employer and the insurance carrier had paid all compensation and furnished all necessary medical treatment during that period; and that the evidence failed to show that petitioner suffered any disability subsequent to May 9, 1929, by reason of the accident. It was therefore ordered that petitioner take nothing. No petition for a review was filed.

Thereafter and on May 13, 1933, and within two days of the expiration of 245 weeks from the date of injury, the petitioner filed a petition with respondent commission to reopen the case and to make an award of compensation upon the ground that the original injury had caused “new and further disability”. The commission gave notice of its intention to dismiss this proceeding and on July 3, 1933, made its order dismissing the same on the ground that sufficient time did not remain to permit of reasonable notice and hearing before expiration of the 245-week period. Application for a rehearing was denied and this proceeding was thereupon commenced. The sole question involved is whether the commission rightfully refused to take jurisdiction and consider an application for an award based on alleged new and further disability when the application therefor was filed within the 245-week period of limitation, but at a time when, in its opinion, there was no opportunity to give reasonable notice of, and to hold a hearing on the application within, the 245-week period.

In support of its action, the commission relies on Larsen v. Industrial Acc. Com., 125 Cal. App. 13 [13 Pac. (2d) 850]. The case is not in point. There an award was made by the commission. No application for a rehearing was filed and no further steps taken until the last day of the 245-week period when the commission, of its own motion, purported to make an order amending and modifying its previous award. In annulling the award, as amended, without notice to the insurance carrier, the court in the Larsen ease, supra, declared that section 20 (d) of the Workmen’s Compensation Act only authorizes the commission to rescind, alter or amend its orders, decisions or awards upon good cause and “when notice and . . . opportunity to be heard is given to the parties in interest”, and within a period of 245 weeks from the date of the injury.

Petitioner assumes the position, and correctly so, that the Larsen case is inapplicable. He contends, in substance, that he did not seek an amendment or modification of the original award but, on the contrary, instituted a new and independent proceeding, notwithstanding the form in which the same was presented, for an award based on new and further disability in the nature of permanent disability caused by the original injury and not theretofore compensated for. He urges that such a proceeding is within time if commenced within the 245-week period and cites in support thereof Hines v. Industrial Acc. Com., 215 Cal. 177, 190 [8 Pac. (2d) 1021], and Cowell etc. Co. v. Industrial Acc. Com., 211 Cal. 154, 160 [294 Pac. 703, 72 A. L. R. 1118]. These cases support petitioner’s contention. In the latter of the two cited cases it is declared: “It was held in the cases of Hutchinson Lumber Co. v. Industrial Acc. Com., 77 Cal. App. 141 [246 Pac. 118], General Accident etc. Corp. v. Industrial Acc. Com., 77 Cal. App. 314 [246 Pac. 570], and Ocean A. & G. Corp., Ltd., v. Industrial Acc. Com., 90 Cal. App. 725 [266 Pac. 556], that a permanent disability is a new and further disability within the provisions of the Workmen’s Compensation Act. We are in full accord with this conclusion of the District Court of Appeal. Many times the seriousness of the injury is not at first apparent, and from its very nature cannot be detected until considerable time has elapsed after its infliction. The clear intent of the statute in such cases is that the injured employee shall be entitled to compensation for his permanent disability notwithstanding the fact that he may in the early stages of his injury have been granted an award only for temporary disability, or may have been paid compensation voluntarily by his employer; provided, of course, that proceedings for the collection of such permanent disability shall have been commenced within two hundred and forty-five weeks after the date of the original injury. ... In General Accident etc. Corp. v. Industrial Acc. Com., supra, the court stated the correct rule in the following language: ‘However, in view of the language of section 11 (c) of the Workmen’s Compensation, Insurance, and Safety Act (Stats, of 1917, p. 831, as variously amended), it would appear that if the injuries received in the first accident “caused new and further disability” the question of the date when the permanent disability of Robinson was first determined would be immaterial, so long as the proceedings to have his claim adjusted were instituted within 245 weeks after the date when the first injury was sustained’

It would appear, therefore, that inasmuch as petitioner was not seeking an amendment or modification of the original award, but rather was asking an award based on a “new and further disability”, in the nature of permanent disability, that the Larsen case, supra, relied upon by the commission, is inapplicable, and the application for an award based on such new and further disability having been filed within the 245-week period, was within time under the authorities above cited, and the commission therefore erred when it dismissed the petition for lack of jurisdiction.

The order of July 3, 1933, dismissing the petition for an award based on new and further disability is annulled and the proceeding is remanded to the respondent commission for such further proceedings as may be proper in accordance with this decision.

Rehearing denied.

Shenk, J., and Preston, J., dissented.


text:
    [L. A. No. 14568.
    In Bank.
    June 14, 1934.]
    OLIVER S. PEACOCK, Petitioner, v. H. A. PAYNE, as County Auditor, etc., Respondent.

      O’Melveny, Tuller & Myers and James L. Beebe for Petitioner.
    Everett W. Mattoon, County Counsel, and Roy W. Dowds, Flood Control Counsel, for Respondent.
   SHENK, J.

This is an original proceeding in mandamus to compel the respondent County Auditor, as ex-officio Auditor of Los Angeles County Flood Control District, to approve the petitioner’s claim for services rendered in appraising certain lands along the San Gabriel River below a point known as Whittier Narrows. The appraisal of the land was ordered by the board of supervisors, and the claim was approved by the board and ordered paid. The Auditor refused to approve the claim on the ground that the oia.i-m would be paid, if at all, from the proceeds of certain bonds issued for flood control purposes and that such expenditure from the bond fund would be unauthorized. As a return to the alternative writ the respondent filed a general demurrer to the petition.

The basis for the Auditor’s objection is that the portions of the bond funds here sought to be charged with said expenditure were voted for the control and conservation of waters flowing through the San Gabriel Canyon; whereas the lands proposed to be acquired for conservation purposes below the narrows would not only control and conserve waters from that canyon, but would also control and conserve waters which flow into the San Gabriel River above the narrows from tributaries below the mouth of said canyon. The waters arising in the San Gabriel Canyon which would be controlled and conserved by the proposed plan are approximately from 61 to 67 per cent of all of the waters in the San Gabriel River at the narrows. The tributaries referred to furnish the remaining 33 to 39 per cent of said waters.

The Los Angeles County Flood Control District was organized and is functioning pursuant to a special act of the legislature in 1915 (Stats. 1915, p. 1502), following the disastrous floods in Los Angeles County in 1914. The original plan contemplated the construction of a high dam in San Gabriel Canyon. After this work had progressed to a certain point the plan was changed. One sufficient reason for the change was the refusal of the state department of public works to approve the plan for the high dam as originally proposed, pursuant to the authority vested in that department under the act of 1929 (Stats. 1929, p. 1050). Whether the expenditure of the bond funds could be made in accordance with that change of plans was tested and approved in Los Angeles County Flood Control Dist. v. Wright, 213 Cal. 335 [2 Pac. (2d) 168], the decision in which is hereby referred to for a history up to that time of the flood control project as especially relating to the San Gabriel River canyon feature of the enterprise.

According to the original report of the flood control engineer in 1924, pursuant to which the bonds were voted, it appeared that more than one-half of the precipitation and runoff of the waters originating in Los Angeles County occur in the San Gabriel Mountain area. The principal stream leaving this area is the San Gabriel River. This river runs in a single channel for a distance of about seven miles below the mouth of the canyon. It then divides into two branches, one known as the Rio Hondo and the other as the San Gabriel River. For some miles these two branches of the San Gabriel are approximately five miles apart, but in Puenta hills, about thirteen miles from the mouth of the canyon, there is a pass at which the two branches of the river are about a mile and a half apart. This pass is called the Whittier Narrows. Below the narrows the distance between the two branches widens gradually and the streams reach the Pacific Ocean through separate channels.

The San Gabriel Basin, so called, includes the mountain drainage area in which the river rises, the San Gabriel Valley above Whittier Narrows and the coastal plain below the narrows. The large volume of water originating in the San Gabriel watershed which percolates through the gravel beds of the San Gabriel Basin supplies the San Gabriel Valley and most of the coastal plain with water for irrigation and domestic uses. In the coastal plain area there are a number of important cities, towns and other communities which depend upon this underground water for their source of supply, including Long Beach, Whittier, Artesia, Norwalk, Signal Hill, Montebello, Seal Beach and other areas extending as far west as the city of Torrance and easterly somewhat beyond the city of Whittier. A constantly increasing city and rural population and a more intensive use of agricultural lands of this area have made heavy drains upon this underground water supply. The level of the underground waters has gone steadily downward. In the coastal plain area there has been a substantial encroachment of salt waters due to the rescission of the underground waters. Engineers familiar with the subject have repeatedly recommended that more of the San Gabriel waters must be put underground and conserved if the water supply of that important coastal basin area is to be maintained.

Since the originally planned high dam was abandoned the. proposed plan for the control and conservation of the San Gabriel waters has been' changed in some respects three times. One of the purposes contemplated by the modified plan approved in Los Angeles County Flood Control Dist. v. Wright, supra, was the construction of works for spreading grounds below the mouth of the canyon. The change in the plan now proposed is to provide additional and extensive spreading ground farther down and in the San Gabriel River basin.

By appropriate resolution, the board of supervisors of the district found that the replenishment of the underground water supply in the coastal basin is a vital necessity; that additional engineering studies have disclosed that a portion of the waters of the San Gabriel Canyon which will be placed in the underground basin beneath the proposed spreading ground will rise to the surface at the Whittier Narrows and that unless lands are acquired and spreading grounds developed as now proposed, flood and storm waters from the San Gabriel Canyon will waste into the ocean. It was further found that the public necessity and welfare required the acquisition and development of the proposed spreading grounds in order to control and conserve the flood and storm waters of the Rio Hondo and San Gabriel River. The proposed change in plan was ordered and the acquisition of the necessary lands directed by appraisal and purchase or by condemnation.

The abandonment of the high dam project, which contemplated extensive impounding of water, necessarily resulted in the subsequent change to the alternative of providing lower dams and spreading grounds heretofore approved by this court. The additional change now proposed is but an extension of the prior spreading ground plan. This change is declared to be necessary because of excessive costs in the acquisition of certain of the lands included in the prior plan and also by the necessity for additional spreading grounds to aid in the successful conservation of waters, the accomplishment of which was one of the main purposes of the organization of the district and the voting of the bond issue.

It should require no extended argument to justify the conclusion that, so far as the control and conservation of the waters of the San Gabriel watershed are concerned, the change of plans to extend the area and location of spreading grounds is plainly within the power of the board to bring about under the facts disclosed. Section 15 of the Flood Control Act requires the district to expend the bond funds in conformity with the “report, plans, specifications and map theretofore adopted as above specified unless the doing of any of such work described in the report . . . shall be rendered contrary to the best interests of said district by some change of conditions in relation thereto, in which event said board of supervisors may . . . order necessary changes made in such proposed work or improvements, and may cause new plans and specifications to be made and adopted therefor”. Under section 21 the act and every part thereof is to be liberally construed to promote its objects and .carry out its purposes. The change in conditions necessary to justify a departure from the original plan does not mean that a change in the geological formation or in the facts actually existing at the outset must take place. If the facts and conditions assumed from engineering or other data then in hand are later shown to be incorrect or inadequate “some change in conditions in relation to” the project is then brought to light, and the modified plan is justified, so long as there is no departure from the general purpose of the improvement, viz., the control and conservation of the waters of the watershed. Here no such departure is contemplated, and hence no violation of the terms of the act or the so-called contract with the voters in the district.

It is insisted by the respondent that the portions of the bond funds voted in 1924 to control and conserve the flood waters of the San Gabriel Canyon may not be used to control or conserve flood waters from other areas. The contention is based on the statement that if the spreading grounds are acquired and improved as proposed, the waters of certain tributaries flowing into the San Gabriel River above Whittier Narrows and below the mouth of the San Gabriel Canyon will also be controlled and conserved and that this was not one of the purposes of the bond issue as voted. The fact is admitted, but the conclusion does not necessarily follow. The control and conservation of such tributary waters is but an incident necessarily appurtenant to the main purpose of the project applicable to the Sail Gabriel River area. These tributary waters reach the San Gabriel Basin by nature’s processes. Their debouchment into the valley is not only physically unavoidable, but would appear to be highly beneficial to the purposes of the district from a conservation standpoint. What is necessarily incidental to the main purpose of the project is authorized to be done. (See City of South Pasadena v. Pasadena Land etc. Co., 152 Cal. 579 [93 Pac. 490]; Uhl v. Badaracco, 199 Cal. 270 [248 Pac. 917].)

No point is made that the proceedings leading np to the change of plan are in any respect irregular, nor that the board has abused its discretion in adopting the same. The appraisal of the land sought to he acquired is a necessary part thereof.

Let the peremptory writ issue as prayed.

Langdon, J., Waste, C. J., Curtis, J., and Seawell, J., concurred.