SCHOPFLIN v. DOLE (1989)

This is an appeal from a judgment on the pleadings declaring certain provisions of Proposition 62 unconstitutional.

The parties to the action are plaintiffs Thomas W. Schopflin, County Administrator, and County of Sonoma (hereafter respondents) and defendant Rodney A. Dole, Auditor and Controller of County of Sonoma (hereafter appellant).   On March 22, 1965, the Sonoma County Board of Supervisors (Board of Supervisors) adopted Ordinance No. 918 which, pursuant to the statutory authorization contained in Revenue and Taxation Code section 7280 et seq., imposed a 6 percent transient occupancy tax on persons using rooms in hotels, motels and other lodgings in the county.   In June 1986 the Board of Supervisors enacted Ordinance No. 3581 which increased the transient occupancy tax rate from 6 to 8 percent effective June 17, 1986.   It is undisputed that both ordinances were adopted in order to generate revenues for general governmental purposes.

On August 26, 1986, as a part of its 1986–1987 final budget, the Board of Supervisors appropriated the sum of $310,311.   Such appropriation was attributable to the increased revenue expected to be generated by the 2 percent increase imposed by Ordinance No. 3581.   The record further indicates that this 2 percent tax increase was adopted at a time when the Board of Supervisors actually reduced annual expenditures by $1.5 million because of declining county revenues.

On November 4, 1986, the voters approved a statutory initiative measure, popularly known as Proposition 62, which added sections 53720 through 53730 to the Government Code.¹  A parallel initiative to amend the California Constitution did not receive a sufficient number of signatures to qualify for the ballot.

Proposition 62 provides, among other things, that a local ordinance imposing general taxes after November 4, 1986 (the effective date of the proposition), is valid only if adopted by a two-thirds vote of the legislative body (§ 53724, subds. (a) and (b)) and approved by the majority of the local electorate (§ 53723).   General taxes imposed by the local legislative authorities between August 1, 1985 and November 4, 1986 (i.e., the so-called “window-period” taxes), retain their validity only if they are submitted for voters' approval within two years of the effective date of the proposition.  (§ 53727, subd. (b).)  Noncompliance with these provisions results in an automatic reduction of the local government's distributive share of property taxes in an amount equal to the impermissibly collected or retained general taxes.  (§ 53728.) ²

Shortly after the adoption of Proposition 62, appellant advised the Board of Supervisors that unless the county complied with the provisions of the proposition by submitting the tax increase ordinance for voter approval, he would reduce the county's property tax share commencing November 15, 1988.   Rather than submitting Ordinance No. 3581 for approval by the local electorate, on July 27, 1987, the county brought an action seeking a peremptory writ of mandate and a declaration that Proposition 62 was unconstitutional insofar as it violated the referendum provisions of California Constitution, article II, sections 9, subdivision (a), and 11.³  Following the filing of appellant's answer, respondents moved for judgment on the pleadings on grounds that the answer failed to state a valid defense.   The trial court granted respondents' motion by holding that sections 53723, 53724, subdivisions (a) and (b), 53727 and 53728 (see fn. 2) were unconstitutional because they mandated referenda on local tax measures in violation of article II, section 9, subdivision (a).   Consistent therewith, the trial court ruled that the entire transient occupancy tax collected between June 17, 1986, and November 15, 1988, could be retained by the county without submitting Ordinance No. 3581 to voter approval.⁴

Appellant's principal contention on appeal is that the trial court erred in declaring the cited provisions of Proposition 62 unconstitutional.   He claims that the requirement of voter approval of local tax enactments is an initiative authorized by article II, section 8, and is not prohibited by the tax limitations of the referendum provisions of the Constitution.  (Art. II, § 9;  Carlson v. Cory (1983) 139 Cal.App.3d 724, 189 Cal.Rptr. 185.)   Appellant further maintains that since the Legislature has constitutional power to require voter approval of local taxes (art. II, § 11;  art. XIII, § 24) through the reserved power of initiative (art. IV, § 1), the people are likewise vested with that same power.   We are compelled to disagree and affirm.

I. The Voter Approval Requirement of Proposition 62 Is Tantamount to a Constitutionally Forbidden Referendum.

The California Constitution defines both the initiative and referendum.   Under article II, section 8, subdivision (a), “The initiative is the power of the electors to propose statutes and amendments to the Constitution and to adopt or reject them.”   Referendum is defined as “the power of the electors to approve or reject statutes or parts of statutes except urgency statutes, statutes calling elections, and statutes providing for tax levies or appropriations for usual current expenses of the State.”  (Art. II, § 9, subd. (a), emphasis added.)

 The primary difference between an initiative and referendum is that while the initiative involves an enactment (i.e., proposes statutes or amendments to the Constitution) and contains no limitation or restriction concerning its subject matter (Carlson v. Cory, supra, 139 Cal.App.3d 724, 728, 189 Cal.Rptr. 185;  see also Estate of Cirone (1984) 153 Cal.App.3d 199, 206, 200 Cal.Rptr. 511), the referendum does not enact law, may not address certain matters (e.g., tax levies for usual current expenses) and grants veto power to the electorate before the enactment becomes effective.   As succinctly stated in Referendum Committee v. City of Hermosa Beach (1986) 184 Cal.App.3d 152, 157, 229 Cal.Rptr. 51:  “ ‘This power of referendum is the right reserved to the people to adopt or reject any act or measure which has been passed by a legislative body, and which, in most cases, would without action on the part of the electors become a law․  [¶] Enactment is not a quality of the referendum.   It comes from the exercise of the power of the initiative by the electorate․  The referendum is limited in its operation to the adoption or rejection of legislation already enacted by a legislative body, and in the absence of such prior enactment there can be neither “repeal and rejection,” to use the terms of the charter provision, nor adoption by the electorate.’  [¶] The referendum process allows the voters to veto statutes and ordinances enacted by their elected legislative bodies before those laws become effective.”  (Emphasis added;  accord Whitmore v. Carr (1934) 2 Cal.App.2d 590, 592–593, 38 P.2d 802.)  City of Westminster v. County of Orange (1988) 204 Cal.App.3d 623, 627, 251 Cal.Rptr. 511, a recently decided case dealing with the constitutionality of Proposition 62, also points out that “a referendum typically does operate to require voter ratification of measures passed but not yet in effect.”  (Emphasis added;  see also Assembly v. Deukmejian (1982) 30 Cal.3d 638, 656–657, 180 Cal.Rptr. 297, 639 P.2d 939.)

Proposition 62 manifests the distinction between initiative and referendum in two ways:  (1) Voter approval is required for “window period” local taxes already passed before November 4, 1986 (§ 53727, subd. (b));  and (2) voter approval is required for future tax enactments which are passed, but have not yet become effective.  (§ 53723.)   Since these two features exhibit different legal characteristics, each is separately analyzed.

A. The Voter Approval Requirement of the Already Enacted Taxes Constitutes an Impermissible Local Initiative.

 Pursuant to Proposition 62 (§ 53727, subd. (b)), general taxes imposed by the local government between August 1, 1985, and November 4, 1986, its effective date, will remain valid only for a two-year period until November 15, 1988.   In order for these taxes to continue in effect, the local enactment imposing such taxes must be submitted for voter approval.   If the local government fails to obtain the approval of the electorate during the prescribed period, the tax enactment ceases to remain valid and the local government suffers the sanction of reduced property tax revenues.  (See § 53728.)   Since the proposition proposes to enact section 53727, subdivision (b), which mandates voter approval of local enactments after they became effective, the voting requirement to validate past tax levies falls clearly outside the definition of a referendum and constitutes a local initiative.   (See Referendum Committee v. City of Hermosa Beach, supra, 184 Cal.App.3d at p. 157, 229 Cal.Rptr. 51;  City of Westminster v. County of Orange, supra, 204 Cal.App.3d 623, 628, 251 Cal.Rptr. 511.)   Appellant agrees, but argues that considering the unrestricted scope of the initiative (art. II, § 8, subd. (a);  Carlson v. Cory, supra, 139 Cal.App.3d 724, 728, 189 Cal.Rptr. 185) and the wide power reserved to the people by the initiative process (art. IV, § 1;  Associated Home Builders etc., Inc. v. City of Livermore (1976) 18 Cal.3d 582, 591, 135 Cal.Rptr. 41, 557 P.2d 473), we should uphold the constitutionality of section 53727, subdivision (b).

We, of course, agree with appellant that our Constitution does not limit the subject matter of direct legislation proposed by an initiative.  (Art. II, § 8, subd. (a);  Carlson v. Cory, supra, 139 Cal.App.3d at p. 728, 189 Cal.Rptr. 185.)   Furthermore, we are well aware of the general legal principles that the initiative is “ ‘one of the most precious rights of our democratic process' ” (Associated Home Builders etc., Inc. v. City of Livermore, supra, 18 Cal.3d at p. 591, 135 Cal.Rptr. 41, 557 P.2d 473);  that it provides “the electorate with the tools of direct democracy thereby returning the government to the people” (Carlson v. Cory, supra, 139 Cal.App.3d at p. 731, 189 Cal.Rptr. 185);  and that the power of initiative must be liberally construed to promote the democratic process (Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 219, 149 Cal.Rptr. 239, 583 P.2d 1281).   Nonetheless, we are persuaded that in determining the constitutionality of section 53727, subdivision (b), we are governed by specific legal precedents rather than such general legal principles.   Such specific legal precedents require rejection of appellant's arguments.

The law is well settled that tax restrictions on referenda also apply to local initiatives involving tax measures.  (City of Westminster v. County of Orange, supra, 204 Cal.App.3d at p. 628, 251 Cal.Rptr. 511;  Community Health Assn. v. Board of Supervisors (1983) 146 Cal.App.3d 990, 993, 194 Cal.Rptr. 557.)   The underlying rationale for this rule is that neither the referendum nor the initiative process can be used to disturb the efficiency of local government which heavily relies on the validity of local tax revenues in managing its fiscal affairs and fixing its budget.   Before the local governmental body “can properly prepare a budget, it must be able to ascertain with reasonable accuracy the amount of income which may be expected from all sources, and, when it has adopted ordinances imposing taxes, it cannot make an accurate estimate unless it knows whether the ordinances will become effective.”  (Geiger v. Board of Supervisors (1957) 48 Cal.2d 832, 840, 313 P.2d 545;  see also Simpson v. Hite (1950) 36 Cal.2d 125, 134, 222 P.2d 225.)   Case law supporting this proposition is abundant.

For example, in Myers v. City Council of Pismo Beach (1966) 241 Cal.App.2d 237, 50 Cal.Rptr. 402, the city adopted a room occupancy tax ordinance similar to that here under review.   Petitioners filed a local initiative to repeal the ordinance and prohibit similar future enactments without prior voter approval.   The Court of Appeal held that the initiative repealing the ordinance was invalid because it sought by initiative that which was unattainable by referendum.   The court reasoned:  “A proposed initiative ordinance cannot be used as an indirect or backhanded technique to invoke the referendum process against a tax ordinance of a general law city․  It will be recalled that the last paragraph of the proposed initiative ordinance provides:  ‘Any ordinance conflicting with any of the provisions of this ordinance either in whole or in part is herewith repealed.’   Thus if the vote at the special election on the proposed initiative ordinance were effective to make it a valid ordinance, the result would be to repeal [the ordinance] ․ imposing a 4 percent room occupancy tax.   Hence a type of referendum technique would have been discovered by which to attack and nullify a tax ordinance of a city ․ governed by general laws.   But ․ the California Constitution[ ] expressly provides that the referendum powers therein reserved to the people do not extend to ‘tax levies or appropriations for the usual current expenses of the State․’  The same exception applies to the political subdivisions of the state that are governed by general laws as distinguished from charters [citation].   Thus, the electors of Pismo Beach, which city derives its powers from the general laws, have no referendum power when it comes to repealing a tax ordinance.   That which the electors have no power to do directly, they obviously cannot do indirectly.”  (Id., at pp. 243–244, 50 Cal.Rptr. 402, emphasis added;  accord City of Westminster v. County of Orange, supra, 204 Cal.App.3d at p. 629, 251 Cal.Rptr. 511;  Gibbs v. City of Napa (1976) 59 Cal.App.3d 148, 153, 130 Cal.Rptr. 382;  Dare v. Lakeport City Council (1970) 12 Cal.App.3d 864, 867–868, 91 Cal.Rptr. 124.)

In Campen v. Greiner (1971) 15 Cal.App.3d 836, 93 Cal.Rptr. 525, the proposed initiative measure sought to repeal a city utility users' tax and prohibit the city council from imposing and collecting any such tax in the future without the vote of the people.   Relying on Simpson v. Hite, supra, 36 Cal.2d at p. 134, 222 P.2d 225, the court emphasized that the people never intended that the initiative or referendum apply where “ ‘ “the inevitable effect would be greatly to impair or wholly destroy the efficacy of some other governmental power ․” ’ ” such as the power to tax.  (Campen v. Greiner, supra, 15 Cal.App.3d at p. 843, 93 Cal.Rptr. 525.)

In City of Atascadero v. Daly (1982) 135 Cal.App.3d 466, 185 Cal.Rptr. 228, the proposed initiative ordinance likewise would have required that the city submit any revenue raising measure for voters' approval before the measure could be implemented.   In holding that the initiative was invalid the court cited Myers v. City Council of Pismo Beach, supra, 241 Cal.App.2d 237, 50 Cal.Rptr. 402, for the proposition that a local initiative may not be used as a substitute for an impermissible referendum and added that the initiative was infirm for the further reason that it was “an unlawful attempt to impair essential governmental functions through interference with the administration of the City's fiscal powers.”  (Id., 135 Cal.App.3d at p. 470, 185 Cal.Rptr. 228; see also Community Health Assn. v. Board of Supervisors, supra, 146 Cal.App.3d at pp. 993–994, 194 Cal.Rptr. 557;  Gibbs v. City of Napa, supra, 59 Cal.App.3d at p. 153, 130 Cal.Rptr. 382;  Dare v. Lakeport City Council, supra, 12 Cal.App.3d at p. 869, 91 Cal.Rptr. 124.)

It readily can be seen that in the present case respondents reasonably relied on the validity of Ordinance No. 3581 which became effective immediately upon adoption—long before passage of Proposition 62.  (Elec.Code, § 3751, subd. (a).)  They carefully considered the expected tax revenues generated by the ordinance in fixing their budget.   It is thus manifest that application of section 53727, subdivision (b), to Ordinance No. 3581 would inject uncertainty in the fiscal management of county government.   The sound public policy that forbids interference by referendum or initiative with local tax levies is designed to avoid just such uncertainty.   The conclusion is inescapable that section 53727, subdivision (b), does not pass constitutional muster.

Our conclusion is further bolstered by the most recent case of City of Westminster v. County of Orange, supra, 204 Cal.App.3d 623, 251 Cal.Rptr. 511.   Therein the principal issue was whether section 53727, subdivision (b), was constitutional as applied to the city's utility users' tax—a tax enacted before the effective date of Proposition 62.   After discussing case law defining initiative and referendum and statutory provisions pertaining thereto (Elec.Code, §§ 4017, 4051, 4055), the court first concluded that the ratification process mandated by section 53727, subdivision (b), was a local initiative rather than a referendum.   Thereafter, citing numerous cases which prohibit utilization of a local initiative as a substitute for an impermissible referendum, the court held that “A requirement that local tax measures be submitted to the electorate by either referendum or initiative would be a gross interference with the fiscal responsibility of local governments” and therefore “section 53727, subdivision (b) must be declared unconstitutional insofar as it subjects this particular tax to an examination by the electorate as a condition of its continued existence.”  (City of Westminster, supra, 204 Cal.App.3d at pp. 630–631, 251 Cal.Rptr. 511.)

Finally, contrary to appellant's contention, Carlson v. Cory, supra, 139 Cal.App.3d 724, 189 Cal.Rptr. 185 does not stand for the proposition that a statewide statutory tax initiative can be used to defeat a local tax ordinance.   In Carlson, the court held only that the California state inheritance and gift tax laws could be repealed by statewide statutory initiatives, like Propositions 5 and 6.   However, the Carlson court drew a fine distinction between a statewide initiative repealing statewide taxes and local initiatives or referenda passing on the validity of local tax ordinances.   Thus significantly enough, Carlson, citing Simpson v. Hite, supra, 36 Cal.2d at p. 134, 222 P.2d 225 and its progeny, conceded that “the initiative or referendum powers of local electors are not available where ‘ “[T]he inevitable effect would be greatly to impair or wholly destroy the efficacy of some other governmental power, the practical application of which is essential ․” ’ ” (Carlson, supra, 139 Cal.App.3d at p. 729, 189 Cal.Rptr. 185) and that the local tax initiatives and referenda must be interpreted in favor of avoiding interferences with the fiscal responsibilities of the local government.   As observed by Carlson:  “In the area of taxation, ‘decisions invalidating initiative or referendum measures to repeal local tax levies have indicated a policy of resolving any doubts in the scope of the initiative or referendum in a manner that avoids interference with a local legislative body's responsibilities for fiscal management.’ ”   (Ibid.;  see also Birkenfeld v. City of Berkeley (1976) 17 Cal.3d 129, 143, 130 Cal.Rptr. 465, 550 P.2d 1001;  Geiger v. Board of Supervisors, supra, 48 Cal.2d at pp. 839–840, 313 P.2d 545;  Hunt v. Mayor & Council of Riverside (1948) 31 Cal.2d 619, 628–629, 191 P.2d 426;  Community Health Assn. v. Board of Supervisors, supra, 146 Cal.App.3d at p. 994, 194 Cal.Rptr. 557.)

B. The Voter Approval Requirement for Future General Taxes Is a Constitutionally Proscribed Referendum.

 Section 53723 provides that following the adoption of Proposition 62, general taxes may be imposed by the local government only if the tax enactments are submitted to, and approved by, the majority of the local electorate.   Appellant claims that the future general tax provisions of Proposition 62 should be held constitutional because (1) the proposition was a statewide initiative (rather than a referendum) which could propose statutes (including a tax statute) without limitation (art. II, § 8, subd. (a));  and (2) section 53723 cannot be deemed a referendum.   In support of the latter argument he claims:  (a) a referendum is directed against an enactment whereas section 53723 requires voter approval only as a part of the enactment process;  (b) the proposition does not follow the referendum procedure set out in the election statute (Elec.Code, §§ 3750, 3751, 3753, 3754);  and (c) the power reserved to the people by the initiative and referendum must be liberally construed and in case of doubt the dispute must be resolved in favor of the exercise of those rights.  (Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization, supra, 22 Cal.3d at p. 219, 149 Cal.Rptr. 239, 583 P.2d 1281;  Associated Home Builders etc., Inc. v. City of Livermore, supra, 18 Cal.3d at p. 591, 135 Cal.Rptr. 41, 557 P.2d 473.)   Appellant's contentions do not persuade us.

The California Constitution explicitly provides that the referendum power of the people does not lie to “statutes providing for tax levies or appropriations for usual current expenses of the State.”  (Art. II, § 9, subd. (a);  see also Fenton v. City of Delano (1984) 162 Cal.App.3d 400, 406, 208 Cal.Rptr. 486.)   Although the constitutional provisions speak in terms of statewide referenda, under well-settled law the power of referendum is extended to the local electorate as well.  (Art. II, § 11;  Geiger v. Board of Supervisors, supra, 48 Cal.2d at p. 836, 313 P.2d 545;  Community Health Assn. v. Board of Supervisors, supra, 146 Cal.App.3d at p. 993, 194 Cal.Rptr. 557.)   We believe the future tax provisions of Proposition 62 amount to a constitutionally proscribed referendum.

 While section 53723, viewed in isolation, may be considered an initiative proposing a statewide tax statute unfettered by constitutional restrictions, the statutory scheme as a whole makes these future tax provisions, in effect, operate as a referendum.   To recall, the primary characteristic of a referendum (as opposed to an initiative) is that it is directed against statutes or ordinances which have already been enacted by a legislative body but have not yet taken effect.  (Referendum Committee v. City of Hermosa Beach, supra, 184 Cal.App.3d at p. 157, 229 Cal.Rptr. 51;  City of Westminster v. County of Orange, supra, 204 Cal.App.3d at p. 627, 251 Cal.Rptr. 511.)   Proposition 62 squarely belongs in this category.   It first requires that the local tax measure must be enacted by a two-thirds majority of the legislative body of the local government (§ 53724, subds. (a) and (b)) and then it requires voter approval.   Section 53723, in turn, provides that no such tax measure will be effective unless it is submitted to the local electorate and approved by the majority of the voters.  (See fn. 2, supra.)   Thus, because Proposition 62 mandates voter approval before the tax measure becomes effective, it clearly falls within the definition of a referendum.

Irrespective of legal definition, there are weighty policy reasons for classifying such tax measures which affect sound fiscal management of local governments as constitutionally forbidden referenda.   As our Supreme Court stated in Geiger v. Board of Supervisors, supra, 48 Cal.2d at pp. 839–840, 313 P.2d 545:  “One of the reasons, if not the chief reason, why the Constitution excepts from the referendum power acts of the Legislature providing for tax levies or appropriations for the usual current expenses of the state is to prevent disruption of its operations by interference with the administration of its fiscal powers and policies․  Before the board can properly prepare a budget, it must be able to ascertain with reasonable accuracy the amount of income which may be expected from all sources, and, when it has adopted ordinances imposing taxes, it cannot make an accurate estimate unless it knows whether the ordinances will become effective.”

Respondents correctly point out that Proposition 62 introduces delay, uncertainty and expense into the budgetary process.   County boards of supervisors are required by state law to adopt an annual budget.   The purpose of the budget is to anticipate revenues and to plan appropriations so that they do not exceed the expected revenues.  (§ 29000 et seq.;   art. XIII B, §§ 1, 2.)   Under the requirements of article XIII B, the board of supervisors must annually adopt its appropriations limit by taking into account the proceeds from taxes.   The preliminary budget is adopted at the beginning of each fiscal year (§ 29064) and the final budget is adopted by September 1 of each year (§§ 29080, 29088).   Critical to this process is accurate and timely information of both the amount and certainty of revenues.   By requiring subsequent voter approval of the enacted local tax measures, Proposition 62 creates uncertainty concerning the availability of such revenues.   Moreover, the proposition provides that voter approval must be obtained either at a general election which occurs every two years (Elec.Code, § 20) or at a special election called by the local government (§ 53724, subd. (c)).  The former results in considerable delay and the latter places a serious financial burden on local government which must bear the cost of the special election.  (§ 53724, subd. (d).)  In short, the policy concerns voiced in Geiger (i.e., the uncertainty in the budgetary planning and the interference with fiscal management by the local legislative body) are painfully present.   We therefore believe that the future tax provisions of Proposition 62 qualify as a “referendum” when their effects are analyzed.

Appellant is also mistaken in his additional argument that Proportion 62 is an initiative because the voter approval requirement is but a part of the enactment process.   The tax measure is enacted by the legislative body of the local government by an ordinance or resolution.  (§ 53724, subd. (a).)  What section 53723 actually requires is ratification by the electorate of that tax enactment—the very hallmark of a referendum.   It also bears repeating that while the initiative proposes statutes, the referendum works on enactments already in existence.

 Appellant's claim that Proposition 62 cannot be deemed a referendum because it does not comply with the Elections Code referendum procedure,⁵ is similarly unfounded.   As the trial court properly observed, the nature of the referendum must be determined by taking into account the function it fulfills rather than whether the process is commenced in a voluntary or mandatory manner.⁶  Additionally, the Elections Code is not an independent source of the referendum, which has its roots in the Constitution.   As such, the Elections Code referendum provisions must be interpreted consistent with the Constitution (i.e., to facilitate the exercise of the constitutional right) not to define or circumscribe it.   As noted in Dye v. Council of The City of Compton (1947) 80 Cal.App.2d 486, 491, 182 P.2d 623:  “According to the express terms of the Constitution the only function of the applicable sections of the Elections Code is to facilitate the operation of the constitutional power of referendum;  and such facilitating legislation may in no way limit or restrict that power.”  (See also Geiger v. Board of Supervisors, supra, 48 Cal.2d at p. 839, 313 P.2d 545;  Campen v. Greiner, supra, 15 Cal.App.3d at p. 841, 93 Cal.Rptr. 525.)

 Appellant's last assertion that we should validate Proposition 62 as being consistent with the general legal principle of favoring the people's reserved right to initiative, calls for summary disposition.   The law is settled beyond dispute that while the power of initiative must be liberally construed, initiatives affecting local tax measures must be interpreted so as to avoid interference with fiscal management of the local legislative body.   (Birkenfeld v. City of Berkeley, supra, 17 Cal.3d at p. 143, 130 Cal.Rptr. 465, 550 P.2d 1001;  Carlson v. Cory, supra, 139 Cal.App.3d at p. 729, 189 Cal.Rptr. 185.)

II. The Legislature's Constitutional Power to Provide Procedures for Local Initiatives and to Authorize Local Taxation Is Insufficient to Uphold Proposition 62.

Appellant's fall-back position rests on the argument that Proposition 62 may be sustained on independent constitutional grounds.   The constitutional provisions cited are:  (1) article II, section 11, which grants the Legislature regulatory power regarding the exercise of local initiatives and referenda;  (2) article XIII, section 24, under which the Legislature may authorize taxation by the local government;  and (3) article II, section 1, and article IV, section 1, which vest broad political power in the people over the government.⁷  Appellant's argument runs as follows:  First, the voter approval requirement of Proposition 62 is merely a procedural device defining how the initiative power of the local electorate is to be exercised.   Second, since the Legislature is vested with constitutional power to authorize taxation by the local government, it can set conditions (including voter approval) for local taxation.   Finally, if the Legislature can authorize voter approval, by virtue of the broad political power reserved to the people by article II, section 1, and article IV, section 1, the people can do the same.   We find appellant's contention untenable.

To begin with, authorization granted to the Legislature by article II, section 11, extends only to the procedures for exercising the referendum, not to the scope or extent of the referendum.   Notably, the scope of the Legislature's power under article II, section 11 (formerly art. IV, § 1), was raised and decided in Geiger v. Board of Supervisors, supra, 48 Cal.2d 832, 313 P.2d 545 where our Supreme Court held:  “It is obvious, however, that the authorization to adopt procedural regulations does not include the power to enact substantive measures which would extend the scope of the basic referendum right.   There is no provision authorizing substantive changes, and we have concluded that it was not intended that the Legislature should have the power to extend or expand the scope of referendum.”  (Id., at p. 837, 313 P.2d 545, emphasis added.)   In Ortiz v. Board of Supervisors (1980) 107 Cal.App.3d 866, 166 Cal.Rptr. 100, the same issue reemerged.   Respondent Board argued that the language of article II, section 11, should be construed to authorize the Legislature to enact legislation which in effect may provide for a restriction on the reserved powers of the referendum.   Citing Geiger, the appellate court rejected the argument and declared:  “The word ‘procedures' in article II refers to the details facilitating exercise of the referendum and not to the scope of the referendum.   Legislative power to adopt procedural regulations does not include the power to enact substantive measures which would extend, restrict or reduce the scope of a referendum.”  (Id., at p. 871, 166 Cal.Rptr. 100, emphasis added;  accord Fenton v. City of Delano, supra, 162 Cal.App.3d at p. 406, 208 Cal.Rptr. 486.)

Contrary to appellant's position, the voter approval requirement contained in Proposition 62 is not merely a procedural device to implement the constitutional provisions of the referendum, but rather is a hidden attempt to expand the scope of the referendum to apply also to tax levies—a direct violation of article II, section 9, subdivision (a).   It follows that the questioned provisions of the proposition are circumscribed by Geiger and Ortiz.

 Appellant's reliance on article XIII, section 24, is likewise misplaced.   While these provisions grant the Legislature power to authorize taxation by local government which, of necessity, entails the power to set the manner and method for imposing the local tax, the Legislature cannot set conditions that are in direct conflict with other, more specific provisions of the Constitution.   The Constitution expressly provides that its provisions are “mandatory and prohibitory, unless by express words they are declared to be otherwise.”  (Art. I, § 26.)   It is the duty of the court to give effect to every clause and word of the Constitution.  (State Board of Education v. Levit (1959) 52 Cal.2d 441, 460, 343 P.2d 8;  Unger v. Superior Court (1980) 102 Cal.App.3d 681, 685, 162 Cal.Rptr. 611.)   Pursuant to settled rules of statutory construction “a general provision is controlled by one that is special, the latter being treated as an exception to the former.   A specific provision relating to a particular subject will govern in respect to that subject, as against a general provision, although the latter, standing alone, would be broad enough to include the subject to which the more particular provision relates.”  (Rose v. State of California (1942) 19 Cal.2d 713, 723–724, 123 P.2d 505;  Santa Barbara County Taxpayers Assn. v. County of Santa Barbara (1987) 194 Cal.App.3d 674, 682, 239 Cal.Rptr. 769.)   Finally, we recognize that “Powers, obligations, and rights bestowed or declared by the Constitution may not be amended, modified, or derogated by statute, whether that statute is adopted by the Legislature or the initiative method.”  (Fair Political Practices Com. v. State Personnel Bd. (1978) 77 Cal.App.3d 52, 56, 143 Cal.Rptr. 393, overruled on other grounds in Pacific Legal Foundation v. Brown (1981) 29 Cal.3d 168, 192, 172 Cal.Rptr. 487, 624 P.2d 1215;  see also Legislature v. Deukmejian (1983) 34 Cal.3d 658, 674, 194 Cal.Rptr. 781, 669 P.2d 17.)

Application of these rules to the instant case requires affirmance.   While article XIII, section 24, provides in general terms that the Legislature may authorize taxation by the local government, article II, section 9, subdivision (a) (the referendum provision of the Constitution), specifically exempts tax levies and appropriations for current expenses from the referendum process.   Therefore, the specific provisions of the referendum section supersede the general provisions of article XIII, section 24.   Furthermore, because Proposition 62 is a statutory enactment, it cannot amend or abrogate article II, section 9, subdivision (a) of the Constitution, which limits the scope of the referendum.

We briefly note that the statutory examples in which the Legislature has exercised its power to condition local taxes on voter approval (§§ 53978, 50078.11;  Pub.Util.Code, § 130350) do not aid appellant.   Section 53978, which conditions special taxes for fire protection on voter approval, is not predicated upon the general language of article XIII, section 24, but rather upon the specific provisions of article XIII A, section 4.⁸  Section 50078.11 requires voter approval on fire suppression for benefit assessments.   Under the law benefit assessments do not qualify as taxes.  (San Marcos Water Dist. v. San Marcos Unified School Dist. (1986) 42 Cal.3d 154, 161–162, 228 Cal.Rptr. 47, 720 P.2d 935;  County of Fresno v. Malmstrom (1979) 94 Cal.App.3d 974, 983–984, 156 Cal.Rptr. 777.)  Public Utilities Code section 130350 calls for voter approval for special sales and use taxes for the Los Angeles Transportation Commission, a special district created by the Legislature.  (Los Angeles County Transportation Com. v. Richmond (1982) 31 Cal.3d 197, 199, 182 Cal.Rptr. 324, 643 P.2d 941.)   Voter approval of taxes by a special district falls within the purview of article XIII A, section 4, not the more general provisions of article II, section 11.⁹

 Finally, the contention of appellant and amicus curiae premised on article II, section 1, and article IV, section 1, is likewise without merit.   These sections merely express broad general principles which have no controlling effect on the specific provisions defining the scope of the referendum.

In summary, we conclude that Proposition 62, a statutory initiative, is inadequate to modify the referendum provisions of the Constitution;  to attain its purpose a constitutional initiative would be required.  (People's Advocate, Inc. v. Superior Court (1986) 181 Cal.App.3d 316, 226 Cal.Rptr. 640.)   Hence, we are bound to agree with the trial court that the cited sections of Proposition 62 are unconstitutional;  we affirm the judgment of the trial court in its entirety.

FOOTNOTES

1.   Unless otherwise indicated, all statutory references are to the Government Code.

2.   The cited sections of the Proposition read as follows:Section 53723:  “No local government, or district, whether or not authorized to levy a property tax, may impose any general tax unless and until such general tax is submitted to the electorate of the local government, or district and approved by a majority vote of the voters voting in an election on the issue.”Section 53724:  “(a) A tax subject to the vote requirements prescribed by Section 53722 or Section 53723 shall be proposed by an ordinance or resolution of the legislative body of the local government or district.   The ordinance or resolution proposing such tax shall include the type of tax and rate of tax to be levied, the method of collection, the date upon which an election shall be held on the issue, and, if a special tax, the purpose or service for which its imposition is sought.  [¶] (b) No tax subject to the vote requirement prescribed by Section 53723 shall be presented at an election unless the ordinance or resolution proposing such tax is approved by a two-thirds vote of all members of the legislative body of the local government or district.”Section 53727:  “(a) Neither this Article, nor Article XIII A of the California Constitution, nor Article 3.5 of Division 1 of Title 5 of the Government Code (commencing with Section 50075) shall be construed to authorize any local government or district to impose any general or special tax which it is not otherwise authorized to impose;  provided, however, that any special tax imposed pursuant to Article 3.5 of Division 1 of Title 5 of the Government Code prior to August 1, 1985 shall not be affected by this section.  [¶] (b) Any tax imposed by any local government or district on or after August 1, 1985, and prior to the effective date of this Article, shall continue to be imposed only if approved by a majority vote of the voters voting in an election on the issue of imposition, which election shall be held within two years of the effective date of this Article.   Any local government or district which fails to seek or obtain such majority approval shall cease to impose such tax on and after November 15, 1988.”Section 53728:  “If any local government or district imposes any tax without complying with the requirements of this Article, or in excess of its authority as clarified by Section 53727, whether or not any provision of Section 53727 is held not applicable to such jurisdiction, the amount of property tax revenue allocated to the jurisdiction pursuant to Chapter 6 of part 0.5 of Division 1 of the Revenue and Taxation Code (commencing with Section 95) shall be reduced by one dollar ($1.00) for each one dollar ($1.00) of revenue attributable to such tax for each year that the tax is collected.   Nothing in this section shall impair the right of any citizen or taxpayer to maintain any action to invalidate any tax imposed in violation of this Article.”

3.   The articles and sections hereafter cited refer to the California Constitution.

4.   Pending the outcome of the litigation, the Board of Supervisors ordered that the revenue generated by the occupancy tax increase be impounded.

5.   The main differences between the two are the following:  under Proposition 62 the ratification process is mandatory rather than initiated by the board of supervisors (Elec.Code, §§ 3750, 3754);  under the Elections Code the tax measure becomes effective immediately upon its enactment (Elec.Code, § 3751, subd. (c)) while under Proposition 62 only upon the approval of the voters;  also pursuant to the proposition the ratification process is automatic where under Elections Code section 3753 the process commences with filing a petition by the voters.

6.   In its well-reasoned decision the trial court expressed this idea as follows:  “The Court does agree that Proposition 62 is a unique form of referendum, since it provides for a mandated referendum, rather than the more traditional referendum by petition.   But the fact that referendum is mandated under Proposition 62 does not make the procedure any less a referendum procedure.   The procedure of Proposition 62 still falls within the definition of a referendum, i.e., the power of the electorate to ‘approve or reject’ an act or measure passed by the legislative body.   Also, the Court is of the opinion that the practical concerns over fiscal management presented by a tax referendum do exist, whether or not the referendum is by petition or mandated by statute.”  (Fns. omitted.)

7.   The pertinent constitutional provisions referred to by appellant read:Article II, section 11:  “Initiative and referendum powers may be exercised by the electors of each city or county under procedures that the Legislature shall provide.”Article XIII, section 24:  “The Legislature may not impose taxes for local purposes but may authorize local governments to impose them.”Article II, section 1:  “All political power is inherent in the people.”Article IV, section 1:  “The legislative power of this State is vested in the California Legislature ․ but the people reserve to themselves the powers of initiative and referendum.”

8.   This provision states in part:  “Cities, Counties and special district, by a two-thirds vote of the qualified electors of such district, may impose special taxes on such district, except․”

9.   We note that Revenue and Taxation Code section 7280, an additional statute cited by appellant, provides only that the legislative body of the county may levy an occupancy tax on rooms in hotels, motels etc., but does not deal with a voter approval requirement at all.

ANDERSON, Presiding Justice.

POCHÉ and PERLEY, JJ., concur.