CITY OF PLYMOUTH v. EMERSON (1970)

OPINION ON DENIAL OF REHEARING

In seeking rehearing, petitioner contends that Streets and Highways Code section 8625 placed a “mandatory duty” upon it to issue the bonds because the property owners did not obtain a temporary restraining order or preliminary injunction to prevent such issuance. From this premise, petitioner further contends that the combined effect of sections 8625 and 8655 of that code was to require the property owners to obtain such provisional relief or else be deemed to have waived their constitutional rights.

These contentions fail. The language of section 8625 is permissive, not mandatory. It provides that bonds secured by assessments unaffected by a restraining order, injunction, or other cause “may be issued in advance of the issuance of the bonds so affected.” (Italics ours.) (See, Sts. & Hy.Code, § 16.) The construction placed by petitioner upon sections 8625 and 8655 would lead to the absurd result that a property owner's constitutional rights could be defeated in cases where the bonds were issued following the trial court's erroneous denial of a temporary restraining order or preliminary injunction. Statutory construction which is productive of absurd consequences should be rejected. (Christ-ward Ministry v. County of San Diego (1969) 271 Cal.App.2d 805, 810, 76 Cal.Rptr. 854.)

Petitioner's reliance on Bernard v. Weaber (1913) 23 Cal.App. 532, 138 P. 941, is unavailing. Under the statute there applicable (Stats.1911, p. 1202), as the appellate court observed, “it was the duty of the city treasurer to deliver the bonds” upon the trial court's dissolution of a temporary restraining order. (23 Cal.App. at p. 536, 138 P. at p. 942.) The court held that the questions on appeal were moot because the bonds had been issued and delivered. Significantly, the plaintiff landowners in Bernard did not challenge the validity of the assessments on their properties. Their attack was directed solely against certain procedures whereby the authority to fix the maturity date of the bonds had been delegated to an administrative officer. The legality of the proceedings in other respects was conceded. The only relief sought by them was “an injunction restraining the issuance of the bonds.” (Id., p. 534, 138 P. p. 942.) In contrast, the property owners in the case at bench not only sought to enjoin sale and delivery of the bonds but also seek a declaratory judgment invalidating the assessments as well as an injunction restraining collection and enforcement of the assessments.

The petition for rehearing is denied.

PER CURIAM.