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CITY OF PLEASANTON v. BRYANT

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

CITY OF PLEASANTON, a municipal corporation, Plaintiff and Respondent, v. Thurston O. BRYANT, Defendant and Appellant.

T. O. BRYANT, on behalf of himself and all other persons similarly situated, and H. W. Kolb, Plaintiffs and Appellants, v. CITY COUNCIL OF the CITY OF PLEASANTON, John McWilliams, Charles Bubics, Warren Harding, John Long, Reno Cairo, members thereof, the City of Pleasanton, a municipal corporation, Defendants and Respondents.

Civ. 22313.

Decided: August 20, 1965

Charles B. Snow, Naranjan S. Heer, Newark, for appellants. William A. Struthers, Jr., City Atty., City of Pleasanton, Pleasanton, Sturgis, Den-Dulk, Douglass & Anderson, Robert T. Anderson, Oakland, for respondents.

Appellants, who are self-denominated as and will be hereinafter referred to as the Dublin Group, have appealed from adverse judgments in two proceedings for extraordinary writs which were consolidated for trial and which involved, in addition to appellants, the City of Pleasanton, a municipal corporation, the city council and the respective members thereof, the respondents herein who are hereinafter collectively referred to as the City; and the Board of Supervisors, the respective members thereof and the County Clerk of the County of Alameda, who are hereinafter collectively referred to as the Board.1

On June 13, 1963 the Dublin Group filed its petition for writ of mandamus and writ of review against the City to establish the invalidity of a certain annexation proceeding commenced on April 19, 1963 and designated as ‘Annexation No. 24–B, Foothill Annex. C–2.’

On August 14, 1963, a petition for writ of mandate was filed in the name of the City of Pleasanton, a municipal corporation, against the Board, and appellant Bryant, who is named as the chairman of the proponents of incorporation in a notice to circulate a petition for incorporation which was filed with the Board of Supervisors on April 18, 1963, to establish the invalidity of a proceeding predicated upon that notice of intention.

The first action is based upon the validity of the proceeding for incorporation instituted by the Dublin Group on April 18, 1963, and reliance on the provisions of section 34302.6 of the Government Code which insulate the territory involved for a period of ninety days from other proceedings aimed at incorporation or annexation.2

The second action attacks the proceeding upon which the Dublin Group rely in the first action on the grounds that as a second incorporation proceeding it is barred by the self-same provisions of section 34302.6;3 and, alternatively, that because of intervening annexation proceedings undertaken by the City, it is barred by the provisions of section 35113 (Annexation Act of 1913)4 and the provisions of section 35308 (Annexation of Uninhabited Territory Act of 1939).5

The respective contentions having been framed in each action by answers, the cases were consolidated for trial, and submitted on facts stipulated to by the parties as supplemented by evidence tending to show that the group sponsoring the attacked proceeding for incorporation instituted April 18, 1963, was substantially identical with that which had sponsored earlier proceedings commenced on January 18, 1963.

The trial court denied the Dublin Group the relief sought in their action, and granted the City a judgment prohibiting further action on the proceeding for incorporation instituted April 18, 1963. This appeal ensued.

For an understanding of the issues involved it is necessary to state the stipulated facts which are set forth in the findings of the trial court as follows: ‘III That on September 11, 1962, by Resolution No. 3323, the City Council of the City of Pleasanton initiated annexation proceedings under the Annexation of Uninhabited Territory Act of 1939 (Section 35300 et seq., Government Code), such annexation being designated ‘Annexation No. 21, Foothill Annex B’, for the annexation of unincorporated territory to the City of Pleasanton.

‘IV That on October 29, 1962, the City Council of the City of Pleasanton closed the protest hearing on said Annexation No. 21, found and determined that there was not a majority protest, and introduced City of Pleasanton Ordinance No. 354 annexing certain territory to the City of Pleasanton.

‘V That on January 18, 1963, a notice of intention to circulate a petition for incorporation was filed with the Board of Supervisors of Alameda County, said incorporation being herein referred to as the first incorporation proceeding; that the territory proposed to be incorporated included a portion of territory included in the earlier Annexation No. 21 of the City of Pleasanton.

‘VI That on January 21, 1963, the City Council of the City of Pleasanton adopted Ordinance No. 354 annexing to the City of Pleasanton the territory designated ‘Annexation No. 21’, a portion of which territory was included in said first incorporation proceeding.

‘VII That on February 18, 1963, by Resolution No. 3364, the City Council of the City of Pleasanton initiated annexation proceedings under the Annexation of Uninhabited Territory Act of 1939, such annexation being designated ‘Annexation No. 24, Foothill Annex C’, for the annexation of unincorporated territory to the City of Pleasanton; that a portion of the territory included in said Annexation No. 24 is included in the incorporation proceeding herein referred to as the second incorporation proceeding.

‘VIII That on February 18, 1963, by Resolution No. 3366, the City Council of the City of Pleasanton initiated annexation proceedings under the Annexation of Uninhabited Territory Act of 1939, such annexation being designated ‘Annexation No. 26, Amador Valley Annex A’, for the annexation of unincorporated territory to the City of Pleasanton; that a portion of the territory included in said Annexation No. 26 is included in the incorporation proceeding herein referred to as the second incorporation proceeding.

‘IX That on March 4, 1963, by Resolution No. 3371, the City Council of the City of Pleasanton, pursuant to the Annexation Act of 1913 (Section 35100 et seq., Government Code), acknowledged the publication of notice of intention to circulate annexation petition and approved its circulation; that said action by said City Council on said date constituted the initiation of an inhabited annexation proceeding designated ‘Annexation No. 25, Maador Valley Annex B’; that a portion of the territory included in said Annexation No. 25 is included in the incorporation proceeding herein referred to as the second incorporation proceeding.

‘X That on March 6, 1963, H. W. KOLB, as relator, petitioned the Attorney General of the State of California for leave to sue in quo warranto to determine the validity of said City of Pleasanton Annexation No. 21; that on March 12, 1963 provisional leave to sue was granted by said Attorney General and a suit was filed in the Superior Court in Alameda County, but the said suit has not been served; that said Attorney General has not determined that said suit should be prosecuted and he has reserved the right to compel dismissal of said suit.

‘XI That on April 1, 1963, by Resolution No. 3380, the City Council of the City of Pleasanton rescinded the prior proceedings for Annexation No. 26 and initiated proceedings under the Annexation of Uninhabited Territory Act of 1939, such Annexation being designated ‘Annexation No. 26–A, Amador Valley Annex A–1’, for the annexation of unincorporated territory to the City of Pleasanton; that a portion of the territory included in said Annexation No. 26–A is included in the incorporation proceeding herein referred to as the second incorporation proceeding.

‘XII That on April 1, 1963, by Resolution No. 3381, the City Council of the City of Pleasanton rescinded the prior proceedings for Annexation No. 24 and initiated proceedings under the Annexation of Uninhabited Territory Act of 1939, such Annexation being designated ‘Annexation No. 24–A, Foothill Annex C–1’, for the annexation of unincorporated territory to the City of Pleasanton; that a portion of the territory included in said annexation No. 24–A is included in the incorporation proceeding herein referred to as the second incorporation proceeding.

‘XIII That on April 18, 1963, a notice of intention to circulate a petition for incorporation of unincorporated territory situated in the County of Alameda was filed with the Board of Supervisors of Alameda County pursuant to the requirements of Section 34302.5 of the Government Code of the State of California; * * *6 that the incorporation proceeding referred to in this paragraph is the incorporation proceeding designated and referred to in these findings and conclusions as the second incorporation proceeding; that substantially all of the territory included in said second incorporation proceeding was also included in the incorporation proceeding herein referred to as the first incorporation proceeding; * * *.7

‘XIV That on April 19, 1963, by Resolution No. 3383, the City Council of the City of Pleasanton rescinded the prior proceedings for Annexation No. 24–A and initiated proceedings under the Annexation of Uninhabited Territory Act of 1939, such annexation being designated ‘Annexation No. 24–B, Foothill Annex C–2’, for the annexation of unincorporated territory to the City of Pleasanton; that a portion of the territory included in said Annexation No. 24–B is included in the incorporation proceeding herein referred to as the second incorporation proceeding.'

As is evident from the foregoing recital the issues transcend the immediate proceedings under attack in the respective petitions. Just as the propriety of the notice of April 18 for incorporation (finding ‘XIII’) and that of the proceeding instituted April 19 for annexation (finding ‘XIV’) each depend on the unencumbered status of the territory at the time; so does the propriety of the intervening proceedings (findings ‘VII,’ ‘VIII,’ ‘IX,’ ‘XI’ and ‘XII’) upon which respondents rely to block the second incorporation proceeding, depend on the status of the territory at the time each of them was taken. This status in turn is dependent upon the propriety of the first incorporation proceeding (finding ‘V’), and the searcher is brought at last to the original annexation proceedings (findings ‘III,’ ‘IV’ and ‘VI’).

1. The first incorporation proceeding gave appellants a priority over all but 58 acres of the territory described therein.

The status of the first incorporation proceeding filed January 18, 1963 (finding ‘V’) depends on whether or not such proceedings were barred by the provisions of section 35308 (see fn. 5, supra). Appellants contend that any preemption for the earlier annexation (findings ‘III’ and ‘IV’) granted by that section terminated by operation of law under the provisions of section 353148 prior to the filing of the notice for the first incorporation proceedings; and that in any event since the territory included in the annexation proceedings which was also encompassed in the notice for the first incorporation was only 58 acres out of about 20 square miles, or less than one percent of the total area, the notice was not totally invalidated thereby, but could properly support further action to incorporate the remainder of the territory.

Respondents refute each of the above contentions and further assert that any attack on the earlier annexation proceeding is barred by operation of the provisions of the First Validating Act of 1963 (Stats.1963, ch. 7, § 4, p. 616), and that since the annexation proceeding was completed (finding ‘VI’), it can only be attacked by quo warranto proceedings.

(a) The First Validating Act of 1963 does not preclude appellant from asserting the efficacy of the notice for the incorporation proceedings.

Although the validating act purports to confirm, validate and declare legally effective all acts and proceedings theretofore taken upon annexation, the question here is not really whether or not there was a valid annexation, but whether before January 18, 1963 ‘an ordinance disapproving such annexation’ had become effective (§ 35308) by operation of law (§ 35314). The subsequent act of the city in purporting to annex the territory involved on January 21, 1963 (finding ‘VI’) more than 60 days after the hearing on protests (§ 35314) cannot retroactively affect any interests that others may have properly acquired in the territory prior thereto.

In People ex rel. Forde v. Town of Corte Madera (1952) 115 Cal.App.2d 32, 251 P.2d 988, the question was one of priority between annexation proceedings instituted by two neighboring cities. In response to the contention that the second proceeding was uncontestably valid because the period within which it could be directly attacked had run, and because it had been validated by a general validation act, this court, Peters, P. J., stated: ‘In the instant case, the subsequent proceedings were void in their inception. The prior proceeding was entitled to priority under the law. No statute of limitations nor so-called curative statute can breathe not only life, but priority, into a subsequent annexation proceeding. To so hold would be to violate the statutory policy and common law of this state.’ (Pp. 40–41, 251 P.2d p. 992) So here, if in fact the prior annexation proceedings were terminated, as hereinafter discussed, and the incorporators were rightfully entitled to priority, the combination of the subsequent purported action to annex and the validation act could not ‘breathe life’ into the defunct annexation proceeding to cut off a priority which had accrued to the incorporators. It is therefore unnecessary to determine what effect the combination of the delayed ordinance and the validating act may have had in respect to others whose interests did not intervene. The appellants did not include the disputed territory in the second incorporation proceeding, and its only materiality here is the effect its purported annexation has on appellants' contention that the first incorporation proceeding, being valid, preempted the right of respondents to take the subsequent intervening annexation proceedings.

People ex rel. City of Torrance v. City of Gardena (1961) 192 Cal.App.2d 686, 13 Cal.Rptr. 742 demonstrates that principles of substantial performance which will sustain an annexation against complaints of a property owner may have to yield to more exacting scrutiny where a question of priority arises between conflicting jurisdictions competing for the same territory. (Cf. Southern Lumber Co. v. City Council of San Jose (1956) 146 Cal.App.2d 133, 303 P.2d 599 and Jefferson Union School District of Santa Clara County v. City Council of Sunnyvale (1954) 129 Cal.App.2d 264, 277 P.2d 104; and see McDowell and Craig v. City of Santa Fe Springs (1960) 54 Cal.2d 33, 38, 4 Cal.Rptr. 176, 351 P.2d 344 and the legislative material referred to in footnote 3 thereof.)

Furthermore, if it be assumed that the question of the validity of the early annexation, rather than the question of the status of the territory on January 18, 1963, is in issue, and that the delay until January 21, 1963 in passing the annexing ordinance was a procedural or technical defect, and not jurisdictional (see: People ex rel. City of Downey v. Downey County Water Dist. (1963) 220 Cal.App.2d 539, 543, 33 Cal.Rptr. 842; Firestone Tire & Rubber Co. v. Board of Supervisors (1958) 166 Cal.App.2d 519, 526–527, 333 P.2d 378; People ex rel. Chapman v. City of Garden Grove (1958) 165 Cal.App.2d 794, 806, 332 P.2d 841; People ex rel. Forde v. Town of Corte Madera, supra, 115 Cal.App.2d 32, 40, 251 P.2d 988), the act itself provides that it shall not apply to pending proceedings or proceedings pending within 30 days after its effective date. (Stats.1963, ch. 7, § 6(c), pp. 616–617.) The act was passed and by its terms became effective March 5, 1963. This proviso cannot therefore apply to the pending proceeding brought by appellants which was filed June 13, 1963. Nevertheless, as appears from the findings, a suit in quo warranto, attacking the original annexation, has been filed on behalf of appellants under provisional leave to sue granted by the Attorney General (finding ‘X’); and is apparently not subject to the bar of the validating act. (See City of El Monte v. City of Industry (1961) 188 Cal.App.2d 774, 776–777, 10 Cal.Rptr. 802.) The pendency of that suit does not of itself bar respondents from asserting the provisions of the validating act in these proceedings. (People ex rel. Chapman v. City of Garden Grove, supra, 165 Cal.App.2d 794, 805–806, 332 P.2d 841; People v. City of Carlsbad (1954) 128 Cal.App.2d 77, 85–86, 274 P.2d 740.) Nevertheless the record herein reflects a stipulation that the instant consolidated cases would be continued and the quo warranto proceedings would be resolved if a determination of the validity of the original annexation were material to a determination of the validity of the first incorporation notice.9 The lower court ruled without making a determination that a continuance for such purpose was necessary. For the reasons first set forth herein under the subject of the effect of the validation act, no such necessity appears at this stage of the case. From the record, however, it is clear that if respondents or this court rely solely upon the validity of the original annexation, as distinguished from the status of that proceeding on January 18, 1963, as determinative of the status of the first incorporation proceedings, the judgment could not be affirmed but would have to be remanded for further proceedings consistent with the aforementioned stipulation.

(b) Appellants are not precluded from asserting the efficacy of the notice of the first incorporation proceedings, because the original annexation can only be attacked in quo warranto.

It is established that quo warranto is the only procedure for testing the validity of an annexation once the proceedings have been completed. (Hazelton v. City of San Diego (1960) 183 Cal.App.2d 131, 135, 6 Cal.Rptr. 723; Crowl v. Board of Trustees (1930) 109 Cal.App. 214, 215–217, 292 P. 985; and cf. American Distl. Co. v. City Council of City of Sausalito (1950) 34 Cal.2d 660, 667, 213 P.2d 704, 18 A.L.R.2d 1247; City of Colton v. City of Rialto (1964) 230 Cal.App.2d 174, 181–183, 40 Cal.Rptr. 766; County of Los Angeles v. City Council (1962) 202 Cal.App.2d 20, 26, 20 Cal.Rptr. 363; City of Campbell v. Mosk (1961) 197 Cal.App.2d 640, 645–646, 17 Cal.Rptr. 584; City of Anaheim v. City of Fullerton (1951) 102 Cal.App.2d 395, 400–401, 227 P.2d 494.)10 Respondents urge that appellants are thereby precluded from attacking the original annexation in these proceedings. As pointed out above in considering the effect of the validation statute the question herein is not the validity of that annexation, but the status of the property the subject thereof on January 18, 1963 when appellants commenced the first incorporation proceeding. It is therefore unnecessary to determine whether the purported annexation by the ordinance adopted January 21, 1963 was voidable or void, and if the latter, subject to attack by other than quo warranto (City of Colton v. City of Rialto, supra, 230 Cal.App.2d 174, 181–183, 40 Cal.Rptr. 766). Nor is it necessary to speculate as to whether such purported annexation was completed by filing with the Secretary of State, or whether respondents would be aided by a presumption that such was accomplished (see Crowl v. Board of Trustees, supra, 109 Cal.App. 214, 215, 292 P. 985).

It is again noted that the stipulation would require a reversal to permit prosecution of the quo warranto action if the validity of that annexation were determinative here.

(c) The provisions of section 35314 do not preclude respondents from asserting that the provisions of section 35308 invalidate appellants' first incorporation proceedings.

It is established that by taking the original annexation proceedings the City became entitled to the benefit of the provisions of section 35308, which recite ‘no notice of intention to incorporate a new city shall be filed which includes any of the territory described in the annexation proceedings.’ (See fn. 5.) This is merely declaratory of a general principle that as between rival proceedings for annexation or incorporation the legislative body first obtaining jurisdiction retains it exclusively until the determination of the particular proceeding. (§§ 34302.6 and 34303.1; §§ 35308 and 35314; §§ 35113 and 35115; and see Great Lakes Properties, Inc. v. City of Rolling Hills Estates (1964) 225 Cal.App.2d 525, 534–535, 37 Cal.Rptr. 448; People ex rel. City of Torrance v. City of Gardena (1961) 192 Cal.App.2d 686, 692, 13 Cal.Rptr. 742; City of Garden Grove v. City of Santa Ana (1960) 187 Cal.App.2d 533, 534, 9 Cal.Rptr. 920; City of Cupertino v. City of San Jose (1960) 186 Cal.App.2d 29, 31, 8 Cal.Rptr. 525; City of Costa Mesa v. City Newport Beach (1958) 165 Cal.App.2d 553, 556, 332 P.2d 392; City of San Pablo v. City of Richmond (1957) 148 Cal.App.2d 358, 363, 306 P.2d 949; Hubbell v. City of Los Angeles (1956) 142 Cal.App.2d 1, 6, 296 P.2d 724; Borghi v. Board of Supervisors (1955) 133 Cal.App.2d 463, 465, 470, 284 P.2d 537; People ex rel. Forde v. Town of Corte Madera, supra, 115 Cal.App.2d 32, 38, 251 P.2d 988; City of Burlingame v. County of San Mateo (1949) 90 Cal.App.2d 705, 706–707, 203 P.2d 807; People ex rel. City of Pasadena v. City of Monterey Park (1919) 40 Cal.App. 715, 717–718, 181 P. 825.)

The Legislature, however, has put a restraint on the time for which such priority may be asserted. Insofar as is material herein it is provided in section 35308 that the prohibition referred to above only persists ‘until an ordinance disapproving such annexation becomes effective.’ Since 1961 it has been further provided in section 35314 that ‘If the legislative body fails to adopt the ordinance within such period, it shall be deemed to have adopted, on the 60th day of such period, an ordinance disapproving the annexation.’11 In this case the 60 days commenced running after the hearing on October 29, 1962 (finding IV), and such an ordinance was deemed adopted on December 28, 1962.

Appellants assert that as an ordinance created by law it became effective at once. Respondents assert that the provisions of section 3693712 delay the effective date of an ordinance 30 days after its final passage, whether adopted in fact by the council or by operation of law.

Appellants make a credible argument for considering the fictitious ordinance as effective on the day it is deemed adopted. They point out that the provisions of the Government Code relating to the enactment of ordinances (§§ 36931–36936.1) provide a detailed system for the passage of ordinances in addition to the provisions regarding the effective date. It is contended that since none of these provisions apply to the ordinance imposed by law, the last section should likewise be disregarded. Under these circumstances the general rule that legislation becomes effective upon its passage would apply. (See: Pacific Palisades Ass'n v. City of Huntington Beach (1925) 196 Cal. 211, 219, 237 P. 538, 40 A.L.R. 782; Gay v. Engebretson (1910) 158 Cal. 21, 26, 109 P. 876.) They further assert that since by the terms of section 35314 the power of the city to either approve or disapprove the annexation expired (cf. People ex rel. Escalle v. Town of Larkspur (1911) 16 Cal.App. 169, 175, 116 P. 702; with Johnson v. City of San Pablo (1955) 132 Cal.App.2d 447, 455, 283 P.2d 57), and that therefore a continued stay would not serve the purpose of giving the City an opportunity to exercise its inherent power to amend or repeal an ordinance (see Blotter v. Farrell (1954) 42 Cal.2d 804, 811, 270 P.2d 481). It is also stated that such a fictitious ordinance because of its nature, and because it involves annexation which is a matter involving the administration of general State law, and not a municipal affair, would not be subject to referendum. (See Elec. Code, §§ 4050 and 4051 and Johnston v. City of Claremont (1958) 49 Cal.2d 826, 834–835, 323 P.2d 71 and Hughes v. City of Lincoln (1965) 232 A.C.A. 897, 900–901, 43 Cal.Rptr. 306 wherein the cases and theories dealing with exercise of the power of referendum are collected.) Without determining whether or not referendum is applicable to an ordinance approving an annexation, it is obvious that the repeal of the ordinance of disapproval by the referendum process would be fruitless if the time within which the annexation could be approved had expired.

Finally appellants contend that if section 36937 is applicable to the ordinance which is deemed to have been adopted, that the fictitious ordinance is a species ‘Covered by particular provisions of law prescribing the manner of its passage and adoption’ within subdivision (e) of the section, and so should take effect immediately. This subsection does not appear to have been expressly construed by the courts of this state, but it has been held that general provisions requiring a 30-day period before the effective date of an ordinance must yield to specific provisions of a Municipal Bond Act in resect of the effective date of an ordinance calling a bond election. (In re East Bay etc. Water Bonds of 1925 (1925) 196 Cal. 725, 730–731, 239 P. 38 and see Derby & Co. v. City of Modesto (1894) 104 Cal. 515, 521, 38 P. 900 in reference to provisions now found in section 36934 which require five days to elapse before passage of an ordinance; and City of Commerce v. State Board of Equalization (1962) 205 Cal.App.2d 387, 391, 23 Cal.Rptr. 143 in regard to the revenue exception in subsection (d) of section 36937.)

On the other hand the courts have generally considered the procedures to be followed in annexations, although specifically prescribed, as subject to the provisions of the general laws. In City of Colton v. City of Rialto, supra, 230 Cal.App.2d 174, 175–176, 178, 40 Cal.Rptr. 766, note is made of prior proceedings (before the 1961 amendments to section 35314) in which it had been necessary to secure writs to force the first city to pass an ordinance disapproving its proposed annexation on the one hand, and on the other hand to void a proceeding commenced by a second city in the interim. The disapproving ordinance which had been commanded and required by the court, according to the opinion ‘by its terms, became effective thirty days thereafter.’ (P. 178, 40 Cal.Rptr. p. 769) The case expressly strikes down an annexation ordinance passed in violation of the five-day limitation of the general provisions of section 36934, and follows County of Los Angeles v. City Council, supra, 202 Cal.App.2d 20, 26–27, 20 Cal.Rptr. 363. In the last mentioned case the 30-day clause of section 36937 was applied to an ordinance for annexation with a void urgency clause in order to demonstrate that a filing with the Secretary of State was premature (202 Cal.App.2d at p. 26, 20 Cal.Rptr. 363). To the same effect is City of Anaheim v. City of Fullerton, supra, 102 Cal.App.2d 395, 400–401, 227 P.2d 494.

In Manteca Union High School Dist. v. City of Stockton (1961) 197 Cal.App.2d 750, 17 Cal.Rptr. 559, an ordinance approving an annexation which was adopted June 8 was held to free the proceedings from the requirements of a state statute which became effective June 19, even though the inception of the legal proceedings on June 9 had precluded filing the ordinance with the Secretary of State in order to complete the proceedings. The court found that the new state legislation did not apply to “proceedings in which * * * the city legislative body * * * has approved the annexation by ordinance.” Any apparent conflict regarding the ‘effective’ date of the ordinance is explained by the fact that the ordinance, under the provisions of the city charter, not general law, became effective immediately pursuant to its terms. The holding in Rafferty v. City of Covina (1955) 133 Cal.App.2d 745, 285 P.2d 94, upon which the last decision also relies, does, however, dull respondents' position that the priority from their annexation continues for thirty days after the accouchement which gave life to the fictitious ordinance sired by the Legislature. In Rafferty it was asserted that new legislation, which went into effect five days after the passage of the annexation ordinance and 32 days before the annexation became effective by filing with the Secretary of State, and with which the annexation failed to comply, served to render the annexation void. The court held that the facts that the legislation was passed before the ordinance was published for the second time, or before the expiration of thirty days after its passage, or before it was filed with the Secretary of State, did not render the proceedings subject to the new provisions. The opinion states that the passage of the ordinance ‘was the final legislative act on the part of the city’ (p. 754, 285 P.2d p. 100); and that the acts which were incomplete at the time of the passage of the new statute ‘were simply routine procedure to give notice to the world that the City Council of Covina had approved the annexation of the territory * * *. These ministerial acts could not invalidate the action which the City Council took and had a perfect legal right to take on September 17th, which was five days before section 35002.5 went into effect.’ (133 Cal.App.2d at pp. 754–755, 285 P.2d p. 100.)

Pursuit of the implications inherent in the foregoing precedents and their reconciliation is forestalled by reference to decisions dealing with definition of the terms ‘effective’ (§ 35308) and ‘adopted’ (§ 35314) as used in reference to ordinances. In Ross v. Board of Retirement (1949) 92 Cal.App.2d 188, 206 P.2d 903, this court, Ward, J., in determining whether a county retirement plan had become effective during a period of suspension of constitutional provisions which, when reinstated, would bar the application of the plan to certain officials, stated: ‘Should the phrase ‘but not sooner than 60 days after its adoption’ (italics added) [from the state enabling legislation] be controlling without reference to either January 1 or July 1 as the date upon which the establishment of the system becomes ‘operative’ Government Code, § 31501, then it should be determined that the system became operative prior to the noon hour on December 31, 1947 as the date of ‘adoption’ is the date of passage of the ordinance. The date of adoption was October 21, 1947—more than 60 days elapsed between October 21, 1947 and December 31, 1947.

‘However, the date of ‘adoption’ or passage of an ordinance or statute is not the date the enactment becomes of actual force and power, that is, effective, unless the enactment should specifically so declare. Vol. 2, Words and Phrases, Perm. Ed., pp. 483, 485.

‘The effective date of a statute or ordinance may depend upon the happening of a contingency, Busch v. Turner, 26 Cal.2d 817, 161 P.2d 456, 171 A.L.R. 1063, but the effectiveness of the present ordinance is not dependent upon the arrival of January 1, 1948. The ordinance announced the date of its effectiveness as 30 days after the date of its passage. It was passed and adopted on October 21, 1947. At least on and after November 20, 1947, the date the ordinance became effective, it was part of every eligible officer or employee's contract that starting on January 1, 1948 he would be entitled to certain retirement benefits.’ (92 Cal.App.2d at p. 193, 206 P.2d p. 907.)

In Gleason v. City of Santa Monica (1962) 207 Cal.App.2d 458, 24 Cal.Rptr. 656 the opinion recites: ‘The sole issue on this appeal is: does the word ‘adoption’ in the clause ‘such action must be brought within 60 days after the date of adoption of the ordinance approving the plan’ mean the date of voting and passage of such ordinance or does it mean the ‘effective’ date? It must be pointed out that if the date of adoption is to be deemed the date of passage, then the complaint was filed more than 60 days after adoption and therefore was not timely filed. On the other hand, if the date of adoption is to be construed as the effective date of the ordinance, then the complaint filed on September 20, 1960, was timely filed.' (207 Cal.App.2d at pp. 460–461, 24 Cal.Rptr. at p. 657.) After reviewing numerous principles of statutory construction, the court concluded: ‘The conclusion that ‘adoption’ is used to mean passage is inescapable when the above sections are contrasted with section 33955 which uses the expression ‘after the effective date of the ordinance approving such plan’ thereby indicating a legislative awareness of the distinction between ‘effective date’ and ‘date of adoption.’ This awareness manifests an intent on the part of the Legislature to use the two expressions to designate different concepts; if the Legislature had intended ‘date of adoption’ in section 33746 to mean ‘effective date’ it would have been simple to make such intention clear by using the latter expression.' (207 Cal.App.2d at p. 462, 24 Cal.Rptr. at p. 658.) So here if the Legislature had intended the words ‘it shall be deemed to have adopted * * * an ordinance disapproving the annexation’ as used in section 35314 to refer to the same time contemplated by the phrase ‘until an ordinance disapproving such annexation becomes effective’ as used in section 35308, it would have been simple to do so by proper correlation of the terms. The fact it did not do so receives some rational explanation from the concept that if an ordinance was actually adopted on the 59th or 60th day, the authorities cited above clearly indicate that it would be subject to the 30-day provision and thereby continue the priority for that period. That 90 days is not unreasonable is evidence from the provision giving incorporators a priority for that period (§ 34302.6).

(d) Respondents' priority did not preclude appellants from obtaining priority over all but that portion of the territory included in the original annexation.

The petition of respondents set forth a map showing the respective areas involved in each of the proceedings to which reference was made in the findings. It appears therefrom that the territory involved in the original annexation is a minute portion of the whole territory encompassed in the first incorporation proceeding, allegedly 58 acres out of approximately 20 square miles, or less than one percent of the total area involved.

Respondents insist on a strict construction of the provisions of section 35308 which prohibit the filing of a ‘notice of intention to incorporate a new city * * * which includes any of the territory described in the annexation proceedings' (emphasis added). The cases cited in support of the proposition that the legislative body first obtaining jurisdiction retains it exclusively tend to support this view, particularly those which refer to the subsequent proceeding as ‘invalid’ or ‘void.’ (City of Cupertino v. City of San Jose, supra, 186 Cal.App.2d 29, 32, 8 Cal.Rptr. 525; City of Costa Mesa v. City Newport Beach, supra, 165 Cal.App.2d 553, 559, 332 P.2d 392; City of San Pablo v. City of Richmond, supra, 148 Cal.App.2d 358, 361, 306 P.2d 949; Hubbell v. City of Los Angeles, supra, 142 Cal.App.2d 1, 6, 297 P.2d 724; People ex rel. Rorde v. Town of Corte Madera, supra, 115 Cal.App.2d 32, 38, 251 P.2d 988.) On the other hand the question of conflicting proceedings has been treated as one of priorities. In a well reasoned opinion (City of Garden Grove v. City of Santa Ana, supra, 187 Cal.App.2d 533, 9 Cal.Rptr. 920) the Fourth District, Coughlin, J., distinguished the conclusion enunciated in the cases last referred to and concluded that a proceeding instituted for the annexation of 2308.1 acres of land under the Annexation Act of 1913 (§ 35100 et seq.) which erroneously included 10 acres which were the subject of prior annexation proceedings by another city under the Annexation of Uninhabited Territory Act of 1939 (§ 35300 et seq.) was not thereby rendered invalid under the provisions of section 35308 so that it could not support further proceedings which culminated in the annexation of a territory with boundaries amended to exclude the 10 acres. The opinion concludes: ‘Where a subsequent proceeding involves a partial conflict, the question of priority exists only as to the overlap. It would be unreasonable to conclude that the prohibitory provisions of the statute, which were enacted for the sole purpose of protecting priority, apply to the whole of such a proceeding rather than to limit the prohibition to that part thereof which involves the territory causing the overlap.

‘The rule declaring the initiating action of a subsequent annexation proceeding void, being based on the principle that an act is void if specifically prohibited by statute, should be limited in scope to effect the purpose of the prohibition.’ (P. 536, 9 Cal.Rptr. p. 923.) It is further stated: ‘The ultimate effect of the initiating action which creates a partial conflict with a prior annexation proceeding and its effect upon the procedures which follow is dependent upon other provisions of the law in the premises. The inclusion in an annexation proceeding of territory not validly subject thereto may result in an error in description of such gravity as to constitute an invalidity vitiating the whole proceeding. On the other hand, such a description may be of that character or degree which is subject to correction. A slight error in the initial description, which could have no effect upon the results of the election called in connection with the proceeding, does not invalidate the ultimate annexation effected by an ordinance using a corrected description. (People ex rel. Klevesahl v. City of San Bruno, 124 Cal.App.2d 790, 269 P.2d 211.)’ (P. 537, 9 Cal.Rptr. p. 923.) By its decision the court further gave the amended proceedings priority over subsequent proceedings taken by the other city which involved territory included in the amended boundaries.

From the foregoing it is concluded that in any event the notice of intention filed January 18, 1963, would have been sufficient to sustain an incorporation proceeding thereafter concluded as to all but 58 acres thereof; and that since it could have been the foundation for any such proceedings so pursued within 90 days thereafter, it was effective to give priority to appellants for that period for that territory under the provisions of section 34302.6.

Respondents would limit the Garden Grove decision to its particular facts because the annexation law involved had specific provisions for amending the boundaries (§§ 35121.5 and 35121.6), and because the proceedings were in fact amended and completed. The incorporation provisions, however, similarly provide for amending the boundaries (§§ 34312 and 34315; and see Peart v. Board of Supervisors (1956) 145 Cal.App.2d 8, 11, 301 P.2d 874), and if a petition had been filed with the Board pursuant to the provisions of section 34303 at any time within the ensuing ninety days, the Board would have acquired jurisdiction to make corrections similar to those made by the City in Garden Grove.

2. The second incorporation proceeding was properly filed and not precluded by the provisions of section 35308 or section 34302.6.

(a) The second incorporation proceeding is not precluded by the intervening annexation proceedings.

Respondents' reliance upon the provisions of section 35308 as applicable because of proceedings initiated April 1, 1963 in respect of Annexations No. 24–A and No. 26–A (findings ‘XII’ and ‘XI’); and upon the provisions of section 35113 as applicable because of proceedings taken March 4, 1963 in respect of Annexation No. 25 (finding ‘IX’) collapses with the conclusion set forth above that the first incorporation proceeding served to give appellants priority as to all the territory empbraced therein with the exception of the 58 acres described in the original annexation proceeding. The map which is part of the record indicates that all of the territory in these annexation proceedings except a small portion of No. 25 and a lesser portion of No. 26–A lies within that described in the first incorporation proceeding. The Garden Grove principle is of no assistance to respondents.

(b) The second incorporation proceeding is not precluded by the first incorporation proceeding.

Respondents contend that if, as has been declared herein, the first incorporation proceeding was effective to give the incorporators a priority in respect of all or any of the territory involved, it also served to prevent a second incorporation proceeding at any time prior to April 19, 1963 (§ 34302.6). The applicable language is ‘For a period of 90 days after the filing of such notice of intention (a) no other notice of intention shall be filed hereunder for the incorporation of any of the same territory described in the filed notice.’ They rely on the general rule set forth in section 6800 as follows: ‘The time in which any act provided by law is to be done is computed by excluding the first day, and including the last, unless the last day is a holiday, and then it is also excluded.’ In Reichardt v. Reichardt (1960) 186 Cal.App.2d 808, 9 Cal.Rptr. 225 this rule was applied to the language “for a period of three full years from and after the date of the entry of this Interlocutory Judgment,” (emphasis added; p. 809, 9 Cal.Rptr. p.226) so that monthly payments to be made on the first of every month for that period included a payment due on March 1, 1960 where the decree was entered March 1, 1957. Reichardt in turn relies on Ley v. Dominguez (1931) 212 Cal. 587, 593–595, 299 P. 713 which applied the statutory rule to permit filing of a referendum petition on March 15 in respect of an ordinance published February 13. The court stated: ‘In such a case, it is contended, the day upon which the act is to be done must be counted as one day. Municipal Improvement Co. v. Thompson, 201 Cal. 629, 631, 258 P. 955. Assuming the existence of such an exception to the ordinary rule for computation of time, we do not believe the situation here presented comes within the exception. The express language of section 281 of the charter is that no ordinance shall go into effect ‘until’ the expiration of thirty days from its publication. Properly interpreted, this would seem to mean thirty days after the publication, which necessarily excludes the day of publication.' (212 Cal. at p. 594, 299 P. p. 716.)

Appellants rely on Municipal Improvement Co. v. Thompson (1927) 201 Cal. 629, 258 P. 955, which the court purported to distinguish in Ley. In this case the court held that it was proper to hold a hearing on October 15 pursuant to a notice posted September 25 under a statute reading: “When, before the day of the hearing specified in the resolution of intention, twenty days have elapsed since the posting * * *.” (P. 631, 258 P. p. 956) The opinion states: ‘Under well-recognized rules, either September 25th, the date of the posting, should be included in the computation of the 20-day period, or, if that day be excluded, October 15th should be included. In either case the period of 20 days elapsed between the posting of the notice and the hearing of the objections. Under the peculiar wording of the statute the question would not seem to be determinable by the rule laid down in section 12 of the Code of Civil Procedure, which is a re-enactment of section 307 of the original Practice Act (St.1850, p. 455). If the statute had been made to read that the objections should be heard at least ‘twenty days after the posting of notices,’ section 12 of the Code of Civil Procedure would require that September 25th be excluded and October 15th be included and the 20-day period would intervene. But the statute requires that 20 days must elapse after the posting and before the day of hearing. Counsel for the defendants have misread the language of the statute in their argument wherein they urge that 20 days must elapse ‘after the day of posting.’ The statute reads ‘since the posting.’ The law takes no notice of fractions of a day. Any fraction of a day is deemed a day unless in a particular case it is necessary to ascertain the relative order of occurrences on the same day. It was early recognized as settled that: ‘[w]here the reckoning is to be made from an ‘act done’ [here the posting of the notice on September 25th], the day upon which it was done must, of necessity, be counted as one day, because if that day be excluded, then the count, instead of being from the act itself, is really from the day following the doing of the act, which would be a subsequent point of time.'' Price v. Whitman, 8 Cal. 412, 416; Iron Mountain Co. v. Haight, 39 Cal. 540. This is true especially when, as here, there is no indication that the day on which the act was done was intended to be excluded. Derby & Co. v. City of Modesto, 104 Cal. 515, 522, 38 P. 900; 24 Cal.Jur. 577 et seq.' (201 Cal. at p. 632, 258 P. 956.) The last case is in accord with the general rule in regard to notices which are a condition precedent to further action. ‘When an act is required to be performed not less than a certain number of days before a named event, the day on which that event is to occur is excluded, and, counting backwards, every day preceding that day is counted, including the day on which the required act was performed. This rule has been applied to notices of time and place of hearing, of execution and judicial sales, of sales under trust deeds, and in connection with redemption of land from taxes.’ (47 Cal.Jur.2d, Time, § 23, pp. 683–684.)

In the authorities last referred to, action is suspended for a period of time during which notice is to run and the first day is counted leaving the last day free for performance of the act. So here as soon as the notice of intention was filed on January 18, 1963, the rest of the world was precluded from filing on that day. As noted in the quotation last set forth: ‘The law takes no notice of fractions of a day.’ (See also § 6806.)13 Eighty-nine days remain on which interference is prohibited, the last such day was April 17, 1963. It is concluded, therefore, that the filing on April 18, 1963 was not barred by the provisions of section 34302.6. It was therefore error to grant respondents the relief they sought.

The foregoing renders it unnecessary to discuss appellants' contention that since the incorporating group was substantially the same, the new notice of intention should be considered as a termination and reinitiation of the same proceedings; and that the provisions of section 34302.6 were not intended to be used against such a group.14

3. The annexation proceeding initiated April 19, 1963 was subject to the priority of the incorporation proceedings filed the preceding day.

The principles hereinabove discussed demonstrate that the provisions of section 34302.6 as applied to the second incorporation proceeding give it priority for a period of 90 days, and it was therefore error to deny appellants the relief they sought.

The judgment is reversed as to both actions and the case is remanded for further proceedings in accordance with the conclusions expressed in this opinion.

FOOTNOTES

1.  Although the Board was designated among the appellants in the notice of appeal filed on behalf of the Dublin Group, the record was subsequently corrected by a request to disregard such designation.

2.  Gov.Code § 34302.6 provides: ‘For a period of 90 days after the filing of such notice of intention (a) no other notice of intention shall be filed hereunder for the incorporation of any of the same territory described in the filed notice; (b) no notice of intention to circulate a petition for the annexation of any such territory under the provisions of the Annexation Act of 1913 shall be filed or consented to by the legislative body of any city; (c) no petition shall be filed with, and no proceedings shall be instituted by, the legislative body of any city for the annexation of any such territory under the provisions of this division.’

3.  All references herein are to provisions of the Government Code unless otherwise indicated.

4.  Section 35113 provides: ‘Within 15 days after such filing, the legislative body may adopt a resolution acknowledging receipt of the notice and approving the circulation of the petition. For a period of 50 days after the adoption of such a resolution (a) no notice of intention to incorporate a new city shall be filed including any of the territory described in the notice; (b) no notice of intention to circulate a petition for the annexation of any such territory under the provisions of this article shall be filed with or consented to by a legislative body of any city; (c) no petition shall be filed with, and no proceedings shall be instituted by, the legislative body of any city for the annexation of any of such territory under the provisions of this division.’

5.  Section 35308 provides: ‘When a valid and sufficient petition for the annexation of any territory to a city has been received by its legislative body or its legislative body has initiated proceedings as hereinafter provided and until an ordinance disapproving such annexation becomes effective (a) no notice of intention to incorporate a new city shall be filed which includes any of the territory described in the annexation proceedings; (b) no notice of intention to circulate a petition for the annexation of any such territory under the Annexation Act of 1913 shall be filed or consented to by the legislative body of any city; (c) no petition shall be filed with, and no proceedings shall be instituted by, the legislative body of any city for the annexation of any such territory under this division.’

6.  Deleted here are allegations relating to actions taken pursuant to this notice prior to the issuance of the alternative writ in the second action. Subsequent findings as to the City's action on the proceedings commenced April 19, 1963 prior to the issuance of an alternative writ in the first suit are also omitted.

7.  Omitted is a mixed finding of fact and conclusion of law that the filing on April 18, 1963 was in violation of section 34302.6. The court also made a purported finding of fact to the effect that all proceedings under annexations 24–B (Par. XIV), 25 (Par. IX) and 26–A (Par. XI) were duly and regularly taken.

8.  Section 35314 provides: ‘If the city legislative body finds by resolution adopted pursuant to Section 35313.2 that a majority protest has not been made, the legislative body shall approve or disapprove the annexation, by ordinance adopted within 60 days after the hearing on protests. If the legislative body fails to adopt the ordinance within such period, it shall be deemed to have adopted, on the 60th day of such period, an ordinance disapproving the annexation.’

9.  The stipulation reads: “If determination of validity of first incorporation notice and Annexation No. 21 is not necessary to the determination of the issues involved in the two pending mandate cases, or if the Court determines that it may pass upon the validity of the first incorporation notice without determining the validity of Annexation No. 21, no continuance of the pending cases is necessary for the purpose of further proceedings in the Quo Warranto matter; “If the Court determines that the determination of the validity of the first incorporation notice and Annexation No. 21 is necessary and that this can only be done by Quo Warranto, it is stipulated that the cases may be continued until the Quo Warranto proceedings before the Attorney General are resolved.”

10.  The cases last cited clearly authorize mandamus or certiorari to test the validity of an annexation prior to its completion, and there is no question but that appellants' petition aimed at annexation ‘24–B’ (finding ‘XIV’) was filed, and that an alternative writ issued prior to the completion of those proceedings.

11.  For an example of the continuing nature of the proceeding in the absence of such a statute see Op. No. 54–217, Feb. 7, 1955, 25 Ops.Cal.Atty.Gen. 107, 113, and the situation recited in City of Colton v. City of Rialto, supra, 230 Cal.App.2d 174, 176, 40 Cal.Rptr. 766, where cross actions had been resorted to in order to clear the record.

12.  Government Code § 36937 provides: ‘Ordinances take effect 30 days after their final passage. An ordinance takes effect immediately, if it is an ordinance: (a) Relating to an election. (b) For the immediate preservation of the public peace, health or safety, containing a declaration of the facts constituting the urgency, and is passed by a four-fifths vote of the city council. (c) Relating to street improvement proceedings. (d) Relating to taxes for the usual and current expenses of the city. (e) Covered by particular provisions of law prescribing the manner of its passage and adoption.’ See also Elec.Code § 4050.

13.  The trial judge in his memorandum opinion indicated that the language of § 6806 was a factor leading him to the conclusion, expressed in the findings, see fn. 7, that the second annexation was barred by the provisions of § 34302.6. It is assumed that this had reference to a contention, which is made by appellants but is not herein discussed, that even if the court followed the rule of § 6800 the 90-day period expired a few hours before the second notice was filed on April 18.

14.  See § 35007 as made applicable to proceedings under § 35300 et seq. by § 35301, and the various proceedings taken by respondents herein between the two incorporation proceedings. Comments on this retention of jurisdiction are found in Manteca Union High School Dist. v. City of Stockton, supra, 197 Cal.App.2d 750, 753–754, 17 Cal.Rptr. 559 and McMillen v. City of El Monte (1960) 180 Cal.App.2d 394, 397, 4 Cal.Rptr. 450; and in Final Report of the Assembly Interim Committee on Municipal and County Government, ‘Annexation and Related Incorporation Problems in the State of California,’ 6 Assembly Interim Committee Reports (1959–1961) No. 16, pp. 55–56.

SIMS, Justice.

SULLIVAN, P. J., and MOLINARI, J., concur.

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