SCHILDWACHTER v. CITY OF COMPTON

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District Court of Appeal, Third District, California.

SCHILDWACHTER v. CITY OF COMPTON et al.*

Civ. 6044

Decided: February 06, 1939

A.N. Soliss, of Compton, for appellant. Ralph K. Pierson, City Atty., of Compton, for respondents.

The plaintiff has appealed from a judgment and order sustaining the defendants' demurrer to plaintiff's complaint without leave to amend.

The complaint seeks to have annulled a resolution of the city council of the City of Compton declaring the repeal of the civil service ordinance of said city as the result of a majority vote upon a proposition, not an ordinance, submitted to the electorate of said city.

On June 11, 1935, the city council of the City of Compton passed and adopted ordinance No. 368 providing a civil service system for said city. On July 9, 1935, the personnel of said council having been changed, a majority vote passed and adopted ordinance No. 369 repeating said civil service ordinance No. 368. Shortly thereafter a referendum petition and protest was filed against ordinance No. 369, the repealing ordinance, and in response thereto ordinance No. 375 was passed and adopted repealing ordinance No. 369, the repealing ordinance.

Thereafter, on October 31, 1935, ordinance No. 376 was passed and adopted, wherein it was attempted to amend said civil service ordinance No. 368. This likewise met with a referendum petition and protest, which resulted in said council passing and adopting another ordinance, No. 378, repealing such amending ordinance No. 376.

On December 3, 1935, a majority of said city council concluded to submit the repeal of said civil service ordinance No. 368, to a vote of the people, and accordingly called a special election for January 17, 1936, submitting the question as a proposition, and not as an ordinance, for the repeal thereof. The election resulted in a vote of 1404 for repeal and 1310 against repeal, and the council accordingly declared the civil service ordinance and system repealed.

The plaintiff contends, first: That it requires a two-thirds vote in any event to repeal such an ordinance, and, second: That the said city council was without jurisdiction or authority to submit a repeal of such ordinance to the electors.

In April, 1935, the legislature approved Act 1401, Gen.Laws Supp.1935 (Stats.1935, p. 380), generally known as the Municipal Civil Service Act of 1935, which by its terms provides that a two-thirds vote of the electors of a city is required to withdraw any department, appointive officer or employee from the operation of such system. Act 1402, approved May 2, 1935 (Stats.1935, p. 485), ratified all ordinances creating the civil service commissions and validated all such municipal ordinances then in effect.

Plaintiff and appellant herein contends that by reason of said legislative enactments, ordinance No. 368 was duly ratified and validated, and that section 16 of said ordinance having by reference adopted and incorporated all general laws of the state as they then, or may thereafter exist, with reference to a civil service system, brought the civil service system of the City of Compton within and subject to the terms and provisions of said Acts 1401 and 1402.

The City of Compton operates under a freeholders' charter, and the only provision therein with reference to civil service is: “To provide for a Civil Service System subject to the terms of this charter in any or all departments of the City government, and thereupon all appointments shall be made subject to the rules of said Civil Service System.”

The charter being silent as to the procedure for establishing such civil service system or providing for its operation thereunder, the language, “subject to the terms of this Charter”, must, to be effective, refer to other terms and provisions of the charter. We find therein, after declaring the right of the city to make and enforce all laws and regulations with respect to its affairs, the following:

“Provided, also, that where the general laws of the State provide a procedure for the carrying out and enforcement of any rights or powers belonging to the City, said procedure shall control and be followed unless a different procedure shall have been provided in this Charter or by Ordinance.”

In 1914 sections 6 and 8 of article 11 of the Constitution were amended by what is generally referred to as the “home rule” provisions, the effect of which was to afford cities and towns theretofore or thereafter organized under charters, the power to make and enforce all laws and regulations in respect to municipal affairs, subject only to such charter restrictions.

We find no conflict in such home rule provisions of the charter here considered with the Municipal Civil Service Act of 1935, and therefore, upon adoption of the civil service ordinance, embodying section 16 thereof, the general law was properly adopted and incorporated therein by reference, and became the controlling law of the municipality upon the subject. “Where no special procedure is outlined touching a municipal subject, the state law always controls by force of the Constitution.” Hyde v. Wilde, 51 Cal.App. 82, 196 P. 118, 121; Mitchell & Johnson v. Smith, 16 Cal.App.2d 119, 60 P.2d 509; art. 11, sec. 8, Const.

We now pass to a consideration of the applicability of Municipal Civil Service Act of 1935 to the instant case as requiring a two-thirds vote to effect a repeal of the city civil service system. It is the contention of respondents that said act is not applicable for the “reason that no attempt is made in the instant case to withdraw anything from the operation of such System, but an entire repeal thereof has been effected”. The Civil Service Act as hereinbefore mentioned, specifically requires a two-thirds vote of the electorate to withdraw any department, appointive officer or employee, and it must obviously follow that a repeal or withdrawal of the whole ordinance cannot be accomplished by a less vote. It is not a case of the “lesser” including the “greater”, as argued by the respondents, but rather the converse is true. Also, the maxim that “one cannot do by indirection what he cannot do by direction”, is particularly applicable.

Finally, it is the contention of the respondents that the proposition so submitted to the electors for the repeal of said ordinance was valid and in accordance with the Initiative and Referendum Act of 1911, St.1913, Ex.Sess., p. 131 (Act 3651, Deering's Gen.Laws 1931), which act, it is claimed, was incorporated by reference in said city charter. That part of the act authorizing the legislative body to submit a “proposition”, reads as follows: “Submission by Legislative Body. The legislative body of the city or town may submit to the people, without a petition therefor, a proposition for the repeal of any adopted ordinance, or for amendments thereto, or for the enactment of any new ordinance, to be voted upon at any succeeding regular or special municipal election, and if such proposition so submitted receives a majority of the votes cast thereon at such election, such ordinance shall be repealed, amended or enacted accordingly.”

It is conceded to be the law that a legislative body of a municipality cannot by resolution, order or motion, repeal an ordinance, but may do so only by another ordinance or enactment of equal dignity. McQuillan Municipal Corporations 969, sec. 885(2d), and cases cited. In 18 California Jurisprudence 928, note 7, it is stated: “The mode for the repeal of an ordinance is generally specified by the charter. And it would seem that an ordinance may be repealed only by an enactment of equal dignity.”

The Compton city charter contains no provision as to the repeal of ordinances; consequently, the general laws on the subject will control, and therefore, such repeal, to have validity as a legislative enactment, must be in response to an adoption of another ordinance by such legislative body, or by the people under the initiative and referendum. Whitmore v. Carr, 2 Cal.App.2d 590, 38 P.2d 802.

It is apparent, therefore, that the term “Proposition”, as used therein, has reference to ordinances which, as we have already indicated, must first have been enacted or approved by the legislative body, and thereupon submitted to the electors as a proposition.

We conclude that the method of submission adopted by the respondents was without legal effect, and it follows that the resolution declaring civil service ordinance No. 368 repealed as a result of such election, is null and void.

The judgment is reversed, with directions to the trial court to overrule the demurrer permitting the defendants to answer if so advised.

STEEL, Justice pro tem., delivered the opinion of the court.

We concur: PULLEN, P.J.; THOMPSON, J.