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District Court of Appeal, Second District, Division 1, California.


Civ. 13032.

Decided: August 30, 1941

Irving M. Smith, City Atty., and Roy J. Brown and Frank C. Charvat, Deputy City Attys., all of Long Beach, for petitioners. J. H. O'Connor, Co. Counsel, W. B. McKesson, Deputy Co. Counsel, and George H. Emerson, all of Los Angeles, for respondent.

By this proceeding petitioners seek to review the judgment of the respondent court holding them in contempt for violating the terms of a permanent injunction issued in the cause of Continental Corporation, a corporation, and the Los Angeles Flood Control District, a body politic and corporate v. The City of Long Beach and certain named officials thereof.

Said injunction restrained petitioners from enforcing against the plaintiffs in the original action certain city ordinances which regulated oil drilling operations, and provided for the issuance of permits therefor and the payment of permit fees.

In said injunction suit it was found by the trial court under date of October 6, 1939, as follows:

“V. That plaintiff Los Angeles county Flood Control District and its agent, the plaintiff corporation, are entitled to have issued any permits required by ordinances numbers C–1549 as amended by C–1739, H. D. number 22 as amended by H. D. number 38, and C–927 as amended by C–1383 and C–1742, without the payment of any of the fees prescribed by said ordinances.”

The affidavit in re contempt made by Robert V. New, as vice president of Continental Corporation, averred that on June 28, 1940, while said permanent injunction was in full force and effect, the City Council of the City of Long Beach passed ordinance No. C–1814 seeking to amend ordinance No. C–1549, and also passed ordinance No. C–1815; that on July 5, 1940, the Board of Harbor Commissioners of said city passed ordinance H. D. No. 55, which by its terms sought to amend ordinance H. D. No. 22. In other words, the City Council enacted new ordinances to take the place of those ordinances the enforcement of which was restrained by said injunction.

It appears that on January 15, 1941, said New on behalf of the Continental Corporation and, as agent for the Los Angeles County Flood Control District, presented to the Board of Harbor Commissioners, and on January 25, 1941, presented to the city clerk of the city of Long Beach, applications for a permit for an oil well, neither of which was accompanied by payment of fees.

Said affidavit in re contempt averred on information and belief that the city attorney of the city of Long Beach on January 25, 1941, and ever since, with intent to disobey the injunction, advised the members of the city council, the city clerk and the members of the board of harbor commissioners not to issue the permits so applied for without the payment of fees required by ordinance No. C–1549 (as amended by No. C–1814), by ordinance No. H. D. 22 (as amended by H. D. 55), or by ordinance No. C–1815, and that said members and said clerk have ever since refused to issue a permit for said oil well without the payment of such fees.

When the order to show cause in re contempt came on for hearing, petitioners were adjudged guilty, whereupon they presented to this court their petition in certiorari to review such action of respondent court. That petition was denied. Brunton v. Superior Court, 45 Cal.App.2d –––, 114 P.2d 45. The matter is again before this court upon the granting of petitioners' application for a rehearing of said cause.

Petitioners seek determination of the question “as to whether a municipal corporation and its officers, enjoined from enforcing the provisions of certain ordinances, committed a violation of the injunction order by the adoption and enforcement of new ordinances differing substantially from the former ordinances and believed in good faith to omit the objectionable provisions in the former”. They urge in connection with this question that the injunction restrains them “from ‘enforcing, seeking or threatening to enforce * * * the provisions relating to the payment of fees' in certain specified ordinances. It does not purport to enjoin the City of Long Beach or any of the officers thereof from collecting from the plaintiffs in said action fees that may be prescribed in any other ordinances than those specifically mentioned, whether such ordinances were then in existence or thereafter adopted”.

Respondent contends that the injunction order enjoined the enforcement of the fee provisions of certain existing ordinances, and that “the contempt of the Council and the Harbor Board constituted the attempt to provide the machinery by which the executive branch of the city government was compelled to exact the fees which the court had enjoined them from collecting”.

From a columnar analysis of the ordinances considered by the court on the contempt proceedings which has been submitted by petitioners at the request of this court upon reargument of the cause, it appears that the injunction enjoined the enforcement of the provisions relating to the payment of fees contained in ordinance No. C–1549 (as amended by No. C–1739) and ordinance H. D. No. 22 (as amended by H. D. No. 38), which will hereinafter be referred to as the “old ordinances”. Ordinances C–1549 and C–1739 adopted by the city council were identical with ordinances H. D. 22 and H. D. 38 adopted by the board of habor commissioners, the purpose of such dual legislation being to avoid any question as to the power of either body to adopt such measures with respect to the harbor district.

The affidavit in re contempt in the contempt proceeding does not charge an attempt by petitioners to enforce the fee provisions of the “old ordinances”, but charges as violations of the injunction order (a) the acts of the members of the council in adopting a new ordinance C–1815 and in enacting an amendment to C–1549, i. e., C–1814; (b) the act of the members of the board of harbor commissioners in adopting an amendment to H. D. 22, i. e., H. D. 55; (c) the act of the city clerk in enforcing the new ordinances; (d) the acts of the city attorney and his deputy in advising that the enforcement of the new ordinances was legally proper.

The said analysis indicates that the “old ordinances” were (1) effective only in the harbor district of Long Beach; (2) required the fees provided thereby should be paid to the board of harbor commissioners and become part of the harbor revenue fund, a fund created by the charter; (3) and provided that such fees could be expended only by such board exclusively for harbor purposes, and could not be used to furnish service and regulation for the benefit of permittees.

The “new ordinances” (1) required payment for permits for oil operations anywhere in the city of Long Beach; (2) the fees provided thereby were payable to the city clerk and became part of the general fund of city; (3) since the general funds of city enable it to furnish services and regulation, i. e., police and fire protection, street maintenance, building inspection, health and sanitary facilities, etc., the fees paid under “new ordinances” are therefore used directly to furnish special services and regulations for benefit of permittees.

Before petitioners can be adjudged guilty of contempt, it must affirmatively appear that the legislative action of the members of the council and board of harbor commissioners in enacting amendments and in adopting new ordinances directly violated the express terms of the injunction.

It is established law that in proceedings for constructive contempts of court, that is, contempts committed without the presence of the court, “the affidavit which is made the basis for the proceeding should show upon its face the acts which constitute a contempt. The affidavit constitutes the complaint, and, unless it contains a statement of facts which show that a contempt has been committed, the court is without jurisdiction to proceed in the matter, and any judgment of contempt based thereon is void, and will be so declared upon certiorari”. Frowley v. Superior Court, 158 Cal. 220, 222, 110 P. 817, 818, and cases there cited. See, also, Mattos v. Superior Court, 30 Cal.App.2d 641, 646, 86 P.2d 1056.

“While the writ of certiorari is not a writ of error, it nevertheless extends to the whole of the record of the court below, and even to the evidence itself where necessary to determine jurisdiction. Schwarz v. Superior Court [111 Cal. 106, 43 P. 580]; McClatchy v. Superior Court [119 Cal. 413, 51 P. 696, 39 L.R.A. 691]; Great Western Power Co. v. Pillsbury, 170 Cal. 180, 149 P. 35. In reviewing this proceeding, the charge, the evidence, the findings and the judgment are all to be strictly construed in favor of the accused (Schwarz v. Superior Court, supra), and no intendments or presumptions can be indulged in aid of their sufficiency (Frowley v. Superior Court, 158 Cal. 220, 110 P. 817). If the record of the proceedings, reviewed in the light of the foregoing rules, fails to show affirmatively upon its face the existence of all the necessary facts upon which jurisdiction depended, the order must be annulled. Frowley v. Superior Court [supra], In re McCarty [154 Cal. 534, 98 P. 540], and other cases above cited.” Hotaling v. Superior Court, 191 Cal. 501, 506, 217 P. 73, 75, 29 A.L.R. 127.

The order in the injunction suit enjoined the enforcement of the ordinances which regulated oil drilling operations, but it did not prohibit the city of Long Beach and its duly constituted officers from adopting new legislation which might have as its object a different system of regulating such operations within its boundaries, including the issuance of permits and the payment of fees therefor.

The affidavit in re contempt directly charged petitioners with violations of the injunction by adopting new ordinances, enacting amendments to existing ordinances, and by enforcing and advising the enforcement thereof. These acts were not within the purview of the injunction order, and the judgment of contempt based thereon was void.

The judgment of contempt is annulled.

YORK, Presiding Justice.

DORAN and WHITE, JJ., concurred.