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District Court of Appeal, Fourth District, California.

BLOTTER et al. v. FARRELL et al.*

Civ. 4712.

Decided: December 04, 1953

Leonard A. Bock, Palm Springs, for appellants. Roy W. Colegate, City Atty., and Jerome J. Bunker, Asst. City Atty., Palm Springs, for respondents.

This is a proceeding to obtain a writ of mandate compelling the mayor and council of the city of Palm Springs to forthwith submit an ordinance to the vote of the city electors. Plaintiffs appeal from a judgment of the trial court dismissing the petition and granting judgment on the pleadings in favor of the defendants.

The city of Palm Springs is a city of the sixth class. It was incorporated in April, 1938, and as a part of the petition for corporation, it was laid out in seven councilmanic districts, numbered one through seven. A councilman is elected from each of the districts and the legislative powers of the city are vested in the mayor and seven members of the city council.

During February and March of 1952, plaintiffs (petitioners herein) circulated in the city two initiative petitions calling for a special election for the purpose of adopting a proposed ordinance amending the boundary lines of the councilmanic districts. These petitions were presented to the city council on or about March 26, 1952, and by it referred to a committee for study and recommendation. The council failed to act on the petition and on or about April 15, 1952, refused to submit the proposed ordinance to a vote of the electors or call an election for that purpose.

Appellants state that the population distribution has changed since the city was incorporated and that the purpose of the ordinance involved is to redistrict the city so as to give each district as near as possible the same voting strength.

The principal question involved is whether the petition for a writ of mandate states facts sufficient to constitute a cause of action.

It is the contention of the appellants that the power of the electors of the city to district includes the power to amend or change its districts and it is stated in appellants' brief that the power to redistrict or amend is based upon the following sections of the Government Code:

‘§ 34871. Submission of ordinance to electors for election of legislative body by districts. At any municipal election, or special election held for that purpose, the legislative body may submit to the electors an ordinance providing for the election of members of the legislative body by districts.’

‘§ 34876. Inclusion of provisions in petition for incorporation. If the petition for incorporation of a sixth class city provides for the election of members of the legislative body by districts and includes substantially the provisions required to be included in an ordinance providing for such election, the members shall be elected pursuant to this article.’

‘§ 35322. Territory annexed to city divided into wards: Alteration or addition of wards. Where territory is annexed to a city divided into wards, or to a city which later divides itself into wards, the legislative body, by ordinance, shall alter the boundaries of the city wards to include the annexed territory in one or more wards adjoining the territory, or make one or more additional wards out of the annexed territory. The number of wards shall not be increased to exceed the number which the city is allowed by law.’

‘§ 35323. Same: Wards to contain equal number of inhabitants. In altering the boundaries of wards, or creating new wards, each ward shall contain, as nearly as possible, an equal number of inhabitants eligible to citizenship.’

It is apparent that by enacting section 34871, supra, the legislature intended to provide for the election of legislative bodies of cities of the sixth class by district where no such procedure had been previously adopted. The section does not provide for a redistricting of such cities. Section 34876 merely provides that where such city has theretofore provided in its incorporation for the election of members of the legislative body by districts substantially as required in an ordinance enacted pursuant to section 34871, the members shall be elected pursuant to Chapter 7, Article 4 of the Government Code. No change in existing districts is therein authorized. Sections 35322 and 35323 of the Government Code relate to the duties of the legislative body of the city in annexation proceedings and are clearly not intended to authorize the city to otherwise change the boundaries of existing districts or city wards.

The record shown that in March, 1948, the city, by ordinances Nos. 187 and 188, annexed certain uninhabited territory to the city under the provisions of the Uninhabited Territory Act of 1939, Sections 35300–35326, Government Code. Councilmanic district No. 4, only, adjoined the territory annexed and the boundaries of district No. 4 were altered so as to include the uninhabited territory annexed. No problem arose as to the number of inhabitants in said district by reason of the annexation. We are not here concerned with the power of the city to alter the boundaries of wards in annexation proceedings and sections 35322 and 35323 of the code have no application except in such proceedings. Our attention has not been called to any constitutional or statutory provision authorizing cities of the sixth class to redistrict such cities under the circumstances shown by the record.

Appellants argue that whatever the electorate originally do, they can amend or change in the absence of specific restraining state legislation. This contention is without merit. A municipal corporation can exercise only such powers as have been conferred upon it in its charter, some constitutional provision or general law. 18 Cal.Jur. 798, Municipal Corporations. In Dillon on Municipal Corporations, 5th Ed., para. 237, the rule is stated that:

‘A municipal corporation possesses and can exercise the following powers and no others:

‘(1) Those granted in express words;

‘(2) Those necessarily or fairly implied in or incidental to the powers expressly granted; and,

‘(3) Those essential to the declared objects and purposes of the corporation—not simply convenient but indispensable.’

In the instant case there is no implied power to redistrict the city. When it was incorporated in 1938, councilmanic districts were established and the city was then subject to the provisions of the Government Code in the matter of the election of its councilmen. Petitioners are attempting by ordinance to change the boundaries of councilmanic districts so as to change and modify the procedure set forth in the general laws for the election of members of city councilmanic bodies. A super-imposition of the map of the proposed districts over that showing the existing districts clearly demonstrates the confusion in the election of councilmen which would result if the proposed ordinance were adopted.

In Hurst v. City of Burlingame, 207 Cal. 134, 277 P. 308, 310, the Supreme Court said:

‘The city of Burlingame is a city of the sixth class organized and existing under and by virtue of the provisions of the General Municipal Corporations Act (Stats.1883, p. 93, and acts amendatory thereof and supplemental thereto). As such the city is limited in the exercise of its powers by the Constitution and general laws. It has only the powers expressly conferred and such as are necessarily incident to those expressly granted or essential to the declared objects and purposes of the municipal corporation. Its powers are strictly construed, and any fair, reasonable doubt concerning the exercise of a power is resolved against the corporation. These rules are elementary. Egan v. [City and County of] San Francisco, 165 Cal. 576 [133 P. 294, Ann.Cas.1915A, 754]; 18 Cal.Jur. pp. 797, 801, and cases cited.

‘It is the established law of this state that an ordinance proposed by the electors of a county or of a city in this state under the initiative law must constitute such legislation as the legislative body of such county or city has the power to enact under the law granting, defining and limiting the powers of such body. Newsom v. Board of Supervisors, 205 Cal. 262, 270 P. 676; Galvin v. Board of Supervisors, 195 Cal. 686, 235 P. 450. See, also, Hopping v. Council of City of Richmond, 170 Cal. 605, 150 P. 977; Hyde v. Wilde, 51 Cal.App. 82, 196 P. 118; State ex rel. Davies v. White, 36 Nev. 334, 136 P. 110, 50 L.R.A., N.S., 195.’

It seems quite clear that since no power has been granted by general law for cities of the sixth class to redistrict such cities, the proposed ordinance is invalid. The city council has no power to pass an ordinance redistricting the city and in the absence of such power has no authority to adopt an initiative ordinance for such purpose.

Appellants argue that the city council has no authority to pass on the validity or invalidity of the proposed ordinance. This argument is without merit. As was held in Myers v. Stringham, 195 Cal. 672, 676, 235 P. 448, 449: ‘* * * the writ may not be used to compel the performance of an act which would have no effect in law.’ And in Hyde v. Wilde, 51 Cal.App. 82, 84–85, 196 P. 118, 119, it is stated:

‘If the proposed ordinance does not fall within the purview of the initiative reservation, then petitioners would have no right to insist that the city council pass the ordinance or call an election and submit it to a vote, for nothing would be thereby accomplished, and mandate is never permitted to be invoked to compel the performance of acts which will have no effect in law. Navajo Mining [& Development] Co. v. Curry, 147 Cal. 582, 82 P. 247, 109 Am.St.Rep. 176; Wiedwald v. Dodson, 95 Cal. 450, 30 P. 580. In State ex rel. Davies v. White, et al., 36 Nev. 334, 136 P. 110, 50 L.R.A., N.S., 195, it is said: ‘The proposition that a writ of mandate will not issue to compel respondents to submit to the electors of the city a proposed ordinance that would be void even if approved by a majority of the electors is too clear for discussion or the citation of authorities. It remains only to consider whether the proposed ordinance would be valid if enacted.’'

We conclude that the trial court did not err in granting respondents' motion for judgment on the pleadings and in ruling that the petition fails to state facts sufficient to authorize the issuance of the writ sought.

Judgment affirmed.

MUSSELL, Justice.

BARNARD, P. J., and GRIFFIN, J., concur.

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