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District Court of Appeal, Third District, California.


Civ. 5441.

Decided: December 27, 1935

Leland Crawford, A. W. Robertson, and Maxwell Nichols, all of Santa Barbara, for appellants. Heaney, Price & Postel, of Santa Barbara, for respondent.

This is an appeal from a judgment which was rendered for failure to amend a petition for a writ of mandamus within the time allowed by the court after a demurrer thereto had been sustained.

It is alleged the petitioners own separate contiguous tracts of land bordering on Miramar Bay, an inlet of the Pacific Ocean, at Santa Barbara, which included an ideal sandy beach 100 feet in width above the water line and extending into the bay a further distance of 500 feet; that this beach was improved by the construction of bath houses and otherwise and was used by the petitioners for recreation and as a means of access to the adjacent bay for bathing, boating, and fishing, for which purposes the beach was a great asset to the value of their properties; that the respondent owns a tract of land littoral to the same bay adjoining the petitioners' property on the westerly side thereof, the shore line of which was barren, rocky, and devoid of sand or beach; that about October 1, 1929, “solely for the purpose of securing the accretion of sand * * * to create a sandy beach and shore * * * upon its said property,” the respondent constructed two parallel groins at and near the easterly line of its property extending at right angles from the cliff, across the flat, a distance of 100 feet and thence onward into the bay a further distance of 100 feet; that these structures resulted in diverting the natural flow of the tides, currents, and waves of the bay in that vicinity so as to destroy the beach adjacent to petitioners' property and transfer the sand therefrom creating a beach on the margin of respondent's land. A mandatory injunction was sought to compel the respondent to remove the groins so that the natural flow of the tides, currents, and waves of the bay may restore the beach to the petitioners' property. To this petition the respondent filed a demurrer on the grounds that it fails to state a cause of action, that the state of California has the exclusive control of such structures over or upon tide water within the state, and that the petition is uncertain in various specified respects. The demurrer was sustained and the petitioners were granted ten days in which to amend their pleading. They declined to amend and judgment was rendered against them. From this judgment, an appeal was perfected.

The demurrer to the petition for a writ of mandamus was properly sustained for the reason that an adequate statutory remedy exists for the removal of groins, jetties, sea walls, breakwaters, or bulkheads from tide lands of the state by application to the division of state lands of the state of California. Section 690.10, Pol. Code, as amended by St. 1933, p. 2373. That act authorizes the department of finance, through the division of state lands, to grant the privilege to littoral landowners to construct and maintain groins, jetties, sea walls, breakwaters, and bulkheads across or upon swamp, over-flowed, marsh, tide, or submerged lands of the state bordering upon such littoral lands, so long as such structures do not interfere with the uses and purposes reserved to the people of the state. That department of the state government is also authorized to regulate and control the use of those structures, and upon a proper showing it may regulate, alter, or remove the same. The act provides in that regard:

“Said department shall also in a similar manner, have power to remove, require to be removed, repaired or altered and to regulate the type, character, design, size, and maintenance of structures mentioned herein and existing at the time this section goes into effect, and to make reasonable rules and regulations in reference thereto.”

It is an established rule of law that extraordinary remedies by means of mandamus or injunction will not lie when adequate relief is afforded by statutory provisions which have not been pursued. San Joaquin & Kings River Canal & Irr. Co. v. County of Stanislaus, 155 Cal. 21, 27, 99 P. 365; Teeter v. City of Los Angeles, 209 Cal. 685, 290 P. 11; Greeson v. Imperial Irr. Dist. (D.C.) 55 F.(2d) 321, 324; 14 Cal.Jur. 230, § 41; 38 C.J. 568, § 39; High's Ext. Legal Rem. (3d Ed.) p. 22, § 16. In the authority last cited it is said in that regard:

“Whenever, therefore, an express remedy is afforded by statute, plain and specific in its nature, and fully adequate to redress the grievance complained of, mandamus will not lie.”

Subject to the paramount authority of the federal government to control navigation in so far as it affects foreign and interstate commerce, the state of California owns the tidewater land adjacent to its seacoast below ordinary high-water mark. Subject to the right of free navigation, the state has the right to regulate and control the use of such tidelands for the general welfare of the public. 26 Cal.Jur. 307, §§ 524-532. This control of submerged lands over which the tides ebb and flow, with respect to the construction, maintenance, or removal of groins, jetties, sea walls, breakwaters, and bulkheads thereon has been conferred by the statute above cited upon the division of state lands of the department of finance of the state of California. This statute appears to supply an adequate remedy for the grievance of petitioners by means of an application to that department of the state government for removal of the structure complained of. Failure to pursue this statutory remedy by the petitioners is sufficient ground to authorize the court to deny the writ.

The petitioners seek to excuse their failure to apply to the division of state lands for a remedy by asserting that the statute referred to is unconstitutional and void for the asserted reasons that it authorizes the taking of private property without compensation therefor in violation of article 1, section 14, of the Constitution; that the subject of the act is not expressed in its title as required by article 4, section 24, of the Constitution; that the act constitutes class legislation and confers an unlawful delegation of legislative power on administrative officers.

We are satisfied that section 690.10 of the Political Code is not unconstitutional for any of the reasons assigned by the petitioners. It does not contemplate the taking of private property without just compensation. Indeed the act does not contemplate the taking of private property at all. It merely authorizes the construction, regulation, control, and removal of groins and other similar structures on overflowed swamp and tidelands which belong to the state. As we have heretofore said, the state owns all tidewater land below ordinary high-water mark. The very title to the act (Stats. 1931, p. 925) authorizes only “the construction, alteration and maintenance of certain structures upon the swamp, overflowed, marsh, tide or submerged lands of this state.” If the maintenance of such structures do result in the diverting or destroying of beach land belonging to private individuals, then the very act provides for the alteration or removal of the detrimental structure by application to the division of state lands, which remedy the petitioners in this case failed to invoke. Moreover, this statute may be readily reconciled with the provisions of article 1, section 14, of the Constitution, so as to require the payment of just compensation under proper circumstances when the authorized structure results in the taking of private property by the destroying of littoral rights to property which borders on tideland. The petition in this case does not seek compensation for damages from the respondent. It is evident the Legislature did not intend to authorize the taking of private property without just compensation by the enactment of section 690.10 of the Political Code. The question as to whether the maintenance of groins on tidelands belonging to the state does result in taking or damaging private property depends entirely on the facts of each particular case. When a statute is adapted to a lawful purpose and appears to be valid and constitutional and, on the contrary, unless it appears on its face to controvert the provisions of the Constitution as a pure proposition of law “unmixed with matters of fact which must be determined on a trial,” the court is bound to assume that the statute is constitutional. Stevenson v. Colgan, 91 Cal. 649, 652, 27 P. 1089, 14 L.R.A. 459, 25 Am.St.Rep. 230; Los Angeles County Flood Control District v. Hamilton, 177 Cal. 119, 169 P. 1028. Moreover, it has been held that one who fails to apply for a statutory remedy specifically provided for an act which is authorized by law, thereby waives the right to subsequently challenge the statute as unconstitutional. Hershey v. Reclamation District No. 108, 200 Cal. 550, 564, 254 P. 542, 547; O'Dea v. Mitchell, 144 Cal. 374, at page 378, 77 P. 1020. In the Hershey Case, above cited, it is said in that regard:

“The right to question the constitutionality of a statute may be waived. ‘It is a general rule applicable in civil cases that a constitutional question must be raised at the earliest opportunity or it will be considered as waived.’ 12 C.J. 785. ‘And where parties have failed to invoke a remedy provided by statute they are in no position thereafter to assert rights which could have been secured by that remedy, by endeavoring to invoke the aid of the Constitution.’ 5 Cal.Jur. 627.”

The subject of the challenged act is adequately expressed in the title thereto, as follows:

“An act to add a new section to the Political Code to be numbered 690.10 authorizing the construction, alteration and maintenance of certain structures upon the swamp, overflowed, marsh, tide or submerged lands of this state, defining the powers and duties of the department of finance and of certain municipalities, districts, or other political subdivisions, in connection therewith; and prohibiting the construction or maintenance of fences or structures other than as herein authorized upon any accretions occasioned by such structures as are authorized hereunder.” St. 1931, p. 925.

It is asserted the title to this section of the Code fails to refer to the “littoral owners” of property adjacent to tide or overflow land of the state who are the only individuals authorized by the act to petition for the construction, alteration, or maintenance of groins or jetties thereon, and that the title therefore fails to conform to article 4, section 24, of the Constitution in that regard, and that it is class legislation for the reason that it applies only to littoral owners of land to the exclusion of all other individuals. We are of the opinion there is no merit in these contentions.

It is the well-established rule with respect to the constitutional provision which requires the subject-matter of an act of the Legislature to be expressed in its title that a liberal construction should prevail so as to uphold the object sought to be attained thereby if it is reasonably possible to do so, and that all that the Constitution requires in that regard is a reasonably intelligent reference in the title to the general subject-matter of the act. 23 Cal.Jur. 644, §§ 40-44; Hecke v. Riley, 209 Cal. 767, 775, 290 P. 451. The title to the challenged act in the present proceeding sufficiently fulfills the requirement of the Constitution in that regard.

The act is not invalid as class legislation for the alleged reason that it discriminates between littoral and nonlittoral owners of property adjacent to tide or overflow land. Boone v. Kingsbury, 206 Cal. 148, 273 P. 797; 5 Cal.Jur. 823, §§ 188, 189. It is obvious that the challenged section of the Code applies to all individuals as a class who own property marginal to the body of swamp, overflowed, marsh, tide, or submerged land upon which a groin, jetty, sea wall, breakwater, or bulkhead is sought to be constructed. There appears to be good cause for distinguishing between littoral and nonlittoral owners of land for the reason that those who own property bordering on such a body of water are naturally most vitally interested in preserving or protecting their marginal rights by such structures. Their littoral rights entitle them to unobstructed access to the water. It is not necessary that an act shall apply to all individuals uniformly. It is sufficient if it applies to all persons of a particular class, there being reasonable cause for applying that legislation to the selected class as distinguished from others who are differently affected by other circumstances.

Nor is this section of the Code unconstitutional and void for the alleged reason that it seeks to delegate legislative authority to an administrative board. It is a well-established rule of law that authority may be delegated by the Legislature to administrative boards or officers to adopt reasonable rules and terms to carry out the general purpose for which a statute is enacted, even though the delegated power confers a discretion in determining the terms, conditions, or facts upon which the board may permit the construction, maintenance, or control of structures authorized by the legislative act. 6 R.C.L. p. 179, § 179; 5 Cal.Jur. p. 683, § 97; 1 Cooley's Const. Lim. p. 228; People v. Kuder, 93 Cal.App. 42, 269 P. 198, 630; In re Halck, 215 Cal. 500, 11 P.(2d) 389; In re Weisberg, 215 Cal. 624, 12 P. (2d) 446, 450; Ex parte McManus, 151 Cal. 331, 90 P. 702. In 1 Cooley's Const. Lim. (8th Ed.) p. 231, it is said in that regard:

“Boards and commissions now play an important part in the administration of our laws. The great social and industrial evolution of the past century, and the many demands made upon our legislatures by the increasing complexity of human activities, have made essential the creation of these administrative bodies and the delegation to them of certain powers. Though legislative power cannot be delegated to boards and commissions, the legislature may delegate to them administrative functions in carrying out the purpose of a statute and various governmental powers for the more efficient administration of the laws.”

In the case of In re Weisberg, supra, in upholding a statute authorizing the state fire marshal to license certain establishments for sponging and pressing garments, the Supreme Court said with respect to these delegated powers:

“We find no merit in petitioner's claim that the act confers arbitrary and uncontrolled power upon the state fire marshal to determine the persons entitled to pursue and the conditions upon which they may conduct the regulated businesses. This contention is sufficiently answered by Carter v. Stevens, supra, 211 Cal. 281, 289-293, 295 P. 28, and Gaylord v. City of Pasadena, 175 Cal. 433, 436, 166 P. 348, 349. As stated in the latter case, ‘it has become increasingly imperative that many quasi legislative and quasi judicial functions, which in smaller communities and under more primitive conditions were performed by the legislative or judicial branches of the government, are intrusted to departments, boards, commissions, and agents. No sound objection can longer be successfully advanced to this growing method of transacting public business. These things must be done in this way or they cannot be done at all, and their doing, in a very real sense, makes for the safety of the republic and is thus sanctioned by the highest law. For, as the Supreme Court of the United States declares: “Indeed, it is not too much to say that a denial to Congress of the right, under the Constitution, to delegate the power to determine some fact or the state of things upon which the enforcement of its enactment depends would be ‘to stop the wheels of government’ and bring about confusion, if not paralysis, in the conduct of the public business.” Union Bridge Co. v. United States, 204 U.S. 364, 367, 27 S.Ct. 367, 51 L.Ed. 523.”'

For the reason that the plaintiffs had an adequate statutory remedy for the removal of the groins complained of, the demurrer was properly sustained. The judgment is, therefore, affirmed.

Mr. Justice THOMPSON delivered the opinion of the court.

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

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