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

PLAZA AMUSEMENT CO. v. CARTER, Com'r of Safety et al.

Civ. 10012.

Decided: January 24, 1936

Harris & Field, of Los Angeles, for appellant. Boyd C. Barrington, City Atty., and Robert N. Baker, Asst. City Atty., both of Santa Monica, for respondents.

The defendants' demurrer to plaintiff's amended complaint asking that the defendants be enjoined from enforcing an alleged invalid ordinance was sustained without leave to amend and a judgment was entered dismissing the action. From that judgment the plaintiff has appealed.

Heretofore certain electors of the city of Santa Monica prepared, circulated, and on October 5, 1933, presented an initiative petition that a certain ordinance be enacted. Those papers were headed:

“Initiative Petition

“To the Honorable, the Council of the City of Santa Monica, State of California:

“We the undersigned qualified electors of the City of Santa Monica, do hereby petition you to submit to the electorate at the next General Municipal Election, the following proposed measure, entitled: * * *” Then followed the title and enacting clause, the provisions of the ordinance under attack, and a prayer for the initiative enactment of said provisions as an ordinance. On November 1, 1933, the defendant council enacted an ordinance, No. 524, calling an election to be held December 5, 1933. In said ordinance the propositions to be voted on included the identical proposed ordinance designated in the petition hereinabove referred to. It was included in the manner following: Section 2 provides: “(2) For the purpose of submitting to the qualified electors of the City of Santa Monica, for approval or rejection, that certain ordinance in words and figures as follows, towit:” (then follows the title and ordinance as set forth in the petition). Then follows a paragraph as follows: “There having been presented to the City Council of the City of Santa Monica a petition signed by qualified electors of the city in number equal to at least twenty-five per cent (25%) of the total number of voters registered in said city at the last preceding general election, prior to the filing of said petition, asking for submission to the electors of said city of said measure, hereinabove set forth; said petition having been filed prior to sixty (60) days before the election called by this ordinance each paper of which petition had attached thereto the affidavit of a registered voter of said city, stating that all the signatures to the paper were made in his presence and that to the best of his knowledge and belief, each signature to the paper appended, was the genuine signature of the person who purports to be thereunto subscribed.”

As to the ordinance under attack, it will be noted that Ordinance No. 524 contains recitals that the ordinance to be voted on was an initiative measure and that the petition was signed by more than 25 per cent. of the qualified electors of the city of Santa Monica, the requisite number of signatures to entitle it to be voted on. Claiming that in truth and in fact said petition was not signed by 25 per cent. of the qualified electors, the plaintiff then contends that the placing of said proposition on the ballot was a fraud on the electors.

If the initiative petitions were signed by 25 per cent. of the qualified electors of the city of Santa Monica, the city council did not err in submitting the ordinance. Article XV, § 1, of the Charter of said city. If they were not signed by any electors, nevertheless, by virtue of other provisions of the charter, the city council had the power of its own motion to submit said ordinance. Article XV, § 2, of the Charter of said city. The plaintiff's complaint presented the sole question as to whether the insertion in the election notice of the recital “a petition signed by qualified electors of the city in number equal to at least 25% of the total number of voters,” etc., was a fraud on the electors and whether said alleged fraud could be inquired into in this action. In other words, will a court undertake to inquire of each elector how he voted and what motive prompted him to do so? In Constitutional Limitations (8th Ed.) at page 380, Mr. Justice Cooley said: “And although it has sometimes been urged at the bar that the courts ought to inquire into the motives of the legislature where fraud and corruption were alleged, and annul their action if the allegation were established the argument has in no case been acceded to by the judiciary, and they have never allowed the inquiry to be entered upon.” Then follows a long list of authorities. Commencing on page 451 he also said: “And the same presumption that legislative action has been devised and adopted on adequate information and under the influence of correct motives, will be applied to the discretionary action of municipal bodies, and of the State legislature, and will preclude, in the one case as in the other, all collateral attack.”That rule obtains in this state. In the case entitled Oroville & V. R. Co. v. Supervisors of Plumas County, 37 Cal. 354, at page 363, the court said: “The fifth paragraph, which avers that the passage of the Act recited in the petition was procured by fraud, is objectionable, first, because it is not well pleaded, as the acts constituting the fraud are not averred. The motion admits, in effect, only those facts that are well pleaded. A general allegation of fraud in a pleading will not be regarded. Second, an Act of the Legislature is not subject to attack on that ground; and it is sufficient on this point to refer to Sherman v. Story, 30 Cal. [253] 266 [89 Am.Dec. 93].” The validity of an ordinance was under attack in Ex parte Yung, 7 Cal.App. 440, 94 P. 594. At page 442 of 7 Cal.App. at page 595 of 94 P., the court said: “It is fundamental that courts will not look into the motives of a legislative body in the exercise of its legislative powers.” Similar language is used in Hadacheck v. Alexander, 169 Cal. 616, 147 P. 259. In re Sumida, 177 Cal. 388, 170 P. 823, involved another ordinance. At page 390 of 177 Cal., at page 824 of 170 P., Mr. Justice Shaw, speaking for the court, said: “The title of the ordinance declares, and its terms show that its purpose was to provide a day of rest one day in the week for those pursuing the occupations forbidden to be carried on upon Sunday. There may have been other designs in the minds of the board of trustees of the town in adopting the ordinance. But that question cannot be inquired into in this manner, nor can an ordinance be declared invalid because of the bad motives of the members of the legislative body which enacted it.” An ordinance of San Francisco regulating laundries was before the court in Soon Hing v. Crowley, 113 U.S. 703, 5 S.Ct. 730, 28 L.Ed. 1145. At page 710 of 113 U.S., at page 734 of 5 S.Ct., Mr. Justice Field, writing the opinion, said: “The principal objection, however, of the petitioner to the ordinance in question is founded upon the supposed hostile motives of the supervisors in passing it. The petition alleges that it was adopted owing to a feeling of antipathy and hatred prevailing in the city and county of San Francisco against the subjects of the Emperor of China resident therein, and for the purpose of compelling those engaged in the laundry business to abandon their lawful vocation and residence there, and not for any sanitary, police, or other legitimate purpose. There is nothing, however, in the language of the ordinance, or in the record of its enactment, which in any respect tends to sustain this allegation. And the rule is general, with reference to the enactments of all legislative bodies, that the courts cannot inquire into the motives of the legislators in passing them, except as they may be disclosed on the face of the acts, or inferable from their operation, considered with reference to the condition of the country and existing legislation. The motives of the legislators, considered as the purposes they had in view, will always be presumed to be to accomplish that which follows as the natural and reasonable effect of their enactments. Their motives, considered as the moral inducements for their votes, will vary with the different members of the legislative body. The diverse character of such motives, and the impossibility of penetrating into the hearts of men and ascertaining the truth, precludes all such inquiries as impracticable and futile. And in the present case, even if the motives of the supervisors were as alleged, the ordinance would not be thereby changed from a legitimate police regulation, unless in its enforcement it is made to operate only against the class mentioned; and of this there is no pretense.” That case seems to be one of the leading cases in America on the point presented. See Rose's Notes, vol. 12, p. 978.

Plaintiff cites and relies on Palmberg v. Astoria, 63 Or. 222, 127 P. 32. It contains nothing at variance with the foregoing authorities.

The judgment is affirmed.


We concur: NOURSE, P. J.; SPENCE, J.