DAVIS v. LOS ANGELES COUNTY WILLIS

Reset A A Font size: Print

District Court of Appeal, Second District, Division 2, California.

DAVIS v. LOS ANGELES COUNTY et al. (WILLIS et al., Interveners).*

Civ. 11832.

Decided: May 27, 1938

Roy A. Linn, of Los Angeles, for appellant. J. H. O'Connor, Co. Counsel, and W. B. McKesson, Deputy Co. Counsel, both of Los Angeles, for respondents. Tanner, Odell & Taft, and Ray C. Eberhard, all of Los Angeles, for interveners. Earl Warren, Dist. Atty., Ralph E. Hoyt, Chief Asst. Dist. Atty., Agnes R. Polsdorfer, T. A. Westphal, Jr., and Lynn J. Gillard, Deputy Dist. Attys., all of Oakland, amici curiæ.

Plaintiff commenced this action as a taxpayer for declaratory relief and to obtain an injunction preventing various officials named as defendants from collecting taxes and administering funds in accordance with the provisions of part 5, Division 5, of the School Code, § 5,1100 et seq. The action was tried upon a stipulated statement of facts. Plaintiff appeals from a judgment denying her the relief sought.

The legislature of California at its 1937 session enacted chapter 59 of the Statutes of 1937, p. 153, § 2, adding a new part to the School Code relating to the retirement of employees of school districts. The act was passed as an urgency measure so that it might become effective immediately. It was signed by the Governor on April 22, 1937, and on April 23, 1937, the Board of Education of the City of Los Angeles called an election, which was held on May 4, 1937, to permit the voters to pass upon the question whether the board should be authorized to establish a plan for district retirement salaries for the teachers and such other employees “as such governing board may determine”. At the election on May 4, 1937, the voters authorized the governing board of the Los Angeles City School District, the Los Angeles City High School District, and the Los Angeles City Junior College District to put such plan in operation.

The act passed by the legislature authorized the Board of Education to submit to the voters the proposition of establishing a plan for district retirement salaries and required that the plan must provide for the administration of the funds and the payment of the retirement salaries by a district retirement board to be composed of not less than three nor more than seven members, of whom, one must be the county treasurer and one must be an employee of the district. Under the terms of the act the members of the district retirement board are to serve for such terms as may be specified by the governing board of the district or districts. They must take an oath of office and shall have charge and control of the district retirement fund, its investment in securities, and the payment of all retirement salaries payable therefrom. The Board of Education has determined that it is necessary to raise by taxation the sum of $981,500 for 1937–38 to pay retirement salaries.

The plaintiff seeks to prevent the collection of taxes determined by the board to be necessary for the purposes of the retirement plan on a number of grounds. First, she contends that the act permitting the calling of the election held on May 4, 1937, is invalid for the reason that the statement of facts contained in the measure shows on its face that the act could not be passed as an urgency measure. Second, that the act is invalid as an urgency measure for the reason that it provides for the creation of new offices and changes the duties of officers. Third, that the act is invalid for the reason that it lacks uniformity and improperly delegates legislative functions to the boards of education. Fourth, that the election of May 4, 1937, is void for irregularities.

In considering plaintiff's first contention consideration must be given to two provisions of the Constitution of California. Section 1 of article 4 of the Constitution provides in part: “The second power reserved to the people shall be known as the referendum. No act passed by the Legislature shall go into effect until ninety days after the final adjournment of the session of the Legislature which passed such act, except acts calling elections * * * and urgency measures necessary for the immediate preservation of the public peace, health or safety, passed by a two–thirds vote of all the members elected to each House. Whenever it is deemed necessary for the immediate preservation of the public peace, health or safety that a law shall go into immediate effect, a statement of the facts constituting such necessity shall be set forth in one section of the act, which section shall be passed only upon a yea and nay vote, upon a separate roll call thereon; provided, however, that no measure creating or abolishing any office or changing the salary, term or duties of any officer, or granting any franchise or special privilege, or creating any vested right or interest, shall be construed to be an urgency measure. Any law so passed by the Legislature and declared to be an urgency measure shall go into immediate effect.” It will be noted that in the first part of the section from which quotation has been made it is provided that no act of the legislature shall go into effect until ninety days after the final adjournment of the session of the legislature. Clearly the purpose of this provision is to enable the citizenry to file a petition demanding a referendum to the voters of the issues contained in the enactment. In a later part of the section it is provided that the legislature may put the measure into immediate effect in proper circumstances, but this may be done only for the immediate preservation of the public peace, health or safety. If the legislature should decide that an act is to go into immediate effect it must set forth in the act a “statement of the facts constituting such necessity.” The act under consideration contains the following statement of facts to show the necessity for its taking immediate effect: “The School Code was amended by the Legislature at its 1935 session to permit governing boards of school districts to discharge teachers who have reached the age of sixty–five years, which amendment will become effective September 1, 1937. Many boards of education desire to take advantage of the provisions of said amendment, and to avoid the hardships which will follow the discharge of many teachers aged sixty–five years or more and to avoid the possibility of placing such teachers and their families and dependents on relief rolls of their respective counties, such boards desire to establish district retirement plans for their employees, as authorized herein. This act requires that the establishment of such plan be submitted to the vote of the people of the school district, and many municipal and school district elections are to be held during the months of April and May, 1937, at which such propositions can be submitted to the voters of the respective districts, at a large saving to taxpayers of the respective districts.” St.1937, p. 159, § 3.

It is doubtless the general rule that the legislature must judge of the necessity for enacting urgency legislation. This rule, however, is subject to the qualification that if the statement of facts contained in the enactment shows upon its face that it is not necessary for the immediate preservation of the public peace, health or safety the act cannot become immediately effective. The rule is well stated in Hollister v. Kingsbury, 129 Cal.App. 420, 18 P.2d 1006, (page 1008) “Under the California Constitution, it is the sole prerogative of the Legislature to determine the necessity for emergency legislation, which may not be disturbed by a court, except that, since our Constitution requires the statement of the facts constituting the necessity to be recited in the act, it follows that, if these facts clearly show that a public necessity does not exist, then the declaration of the necessity falls of its own weight.” If it can be rationally concluded from the statement of facts that the legislation is truly an urgency matter the courts are bound to uphold it as such. McClure v. Nye, 22 Cal.App. 218, 133 P. 1145, 1147. But if the only reasonable conclusion to be reached from the facts which appear on the face of the enactment is that the measure is not immediately necessary for the preservation of the public peace, health or safety, it becomes the duty of the courts to hold that the measure did not become effective until after the expiration of the period of ninety days as provided in the Constitution. The courts have not hesitated to so decide on proper occasion. Ex parte Hoffman, 155 Cal. 114, 99 P. 517, 132 Am. St.Rep. 75. Although the right of the legislature to pass urgency measures must be upheld in proper cases it is nevertheless the plain duty of the courts to sustain the referendum provisions of the Constitution when in fact no necessity exists for the immediate operation of the legislation under review.

One of the reasons contained in the legislative statement of facts to justify the classification of the act as an urgency measure is that many municipal and school district elections are to be held during the months of April and May, 1937, and that a saving to the taxpayers will result from the consolidation of the election provided for in the act with other elections. Although economy in the matter of conducting elections is to be desired, it cannot be justly contended that the public peace, health or safety would be endangered by submitting the issue of the proposed plan at a special election, at which the voters would have more time to inform themselves concerning the merits of the question which must be determined by their ballots. Moreover, it is manifest that the “saving to taxpayers” mentioned in the legislative statement could be brought about by the submission of the issue to the voters at an election consolidated with a municipal or school election regularly conducted at a date later than April or May, 1937.

The other reason given in the legislative statement of facts likewise fails to show that the act can reasonably be classified as an urgency measure. It is entirely unreasonable to hold that the public peace, health or safety would be in immediate danger if some of the boards of education should give effect to their “desire to take advantage of the provisions of said amendment” whereby they were empowered on September 1, 1937, to discharge certain employees of advanced age. Certainly the various boards of education are in position to properly regulate the tenure of their elderly employees without bringing about the dire condition which counsel for defendants predict might result. If the words “public peace, health or safety”, are to be given their ordinary meaning it cannot be held that the enactment was an “urgency measure necessary for the immediate preservation of the public peace, health or safety”. To hold otherwise would be to distort the plain meaning of these words. The legislature may not by its mere pronounciamento create an emergency where none exists in fact. Moreover, those teachers who may have rendered lengthy service would upon their discharge be entitled to a pension of $50 per month in addition to certain annuities, as provided in part 4, Division 5, of the School Code, § 5,800 et seq. This pension is safeguarded expressly by the provisions contained in section 5,1110 of the act under review: “The retirement salaries provided for in this act shall be in addition to any other retirement salaries received by any teacher under Part IV of this division or as may be otherwise provided by law.”

Since the act was not effective as an urgency measure it did not become operative until ninety days after the adjournment of the legislature. Consequently the election of May 4, 1937, was and is void. Our disposition of the contention hereinbefore discussed makes it unnecessary to pass upon other points presented by plaintiff.

The judgment is reversed and the superior court is directed to grant to plaintiff relief in accordance with the prayer of her complaint.

WOOD, Justice.

We concur: CRAIL, P. J.; McCOMB, J.