v. (1956)

The plaintiff and respondent, Guy Hall, a general licensed contractor, was awarded a contract to build the Taft College building in the city of Taft by Taft Union High School and Junior College District, for the sum of $641,113. He started work on the project on May 2, 1955, but officials of the city of Taft, a city of the sixth class, threatened to cause his arrest as a violator of city ordinance No. 197 (New Series), which, through incorporation by reference of the Uniform Building Code, 1952 Edition, requires all persons who erect any building in the city to take out a permit and pay the fees specified therein. The plaintiff stood his ground and refused to apply for a permit. The work was closed down.

On May 18, 1955, plaintiff filed this suit to enjoin the city and its officials from enforcing the ordinance. His theory is that under the law, and particularly sections 18191 et seq. of the Education Code, the state has fully occupied the field of supervising and controlling the erection of school buildings wherever they may be situated, to the complete exclusion of municipalities, and that consequently, Taft is without right or authority to demand that plaintiff secure a city permit.

The case was tried on an agreed statement of facts and resulted in a judgment that the ordinance of the city ‘* * * (i)s unconstitutional and deprives the plaintiff of his property without due process of law in that said ordinance is not applicable to a school district or to a contractor working for a school district in this instance’; that plaintiff is not required to secure a building permit from the city for the erection of the building; and that the defendants should be and are permanently enjoined and restrained from demanding that plaintiff secure a permit from the city and from interfering with the construction of the building.

This appeal, filed by the defendants, is presented on an agreed statement of facts. Rule 6(a), Rules on Appeal. The case involves only one basic question: Under the law as it exists today, can a city of the sixth class by ordinance require a contractor, who has a contract with a school district to erect a school building within the corporate limits of such city, to secure a city building permit?

There can be no question but that the state has the power to take sole jurisdiction over the supervision and control of the construction and repair of school buildings. This was decided in Pasadena School Dist. v. City of Pasadena, 1913, 166 Cal. 7, 12, 134 P. 985, 986, 47 L.R.A.,N.S., 892, where it was said:

‘The state undoubtedly might provide, in the exercise of its police power and under a general law, for a complete system of regulation for the protection of the public health, safety and comfort in the erection of school buildings.’

The same case held that as the state had not so acted up to that time, the right remained in the city, in the exercise of its police power pursuant to section 11 of Article XI of the Constitution, to subject a school district erecting a building within its corporate limits to its regulatory building ordinances. The question is thus narrowed to an inquiry whether by any general law passed after the decision of the Pasadena school case, supra, the legislature has preempted the entire field of school building construction to the exclusion of the exercise by municipalities of regulatory and supervisory powers.

The legislation to be analyzed consists of an act of the legislature originally passed in 1933, known as the Field Act, Calif.Stats.1933, Ch. 59, now incorporated in Div. 9, Ch. 3, Art. 3, § 18191 et seq. of the Education Code. It is suggested by counsel for appellants that the Riley Act, Stats.1933, Ch. 601, p. 1531, now found in the Health and Safety Code, §§ 19100 to 19170, enacted in the same year is in pari materia and should be helpful in indicating the legislative intent in passing the Field Act. Old Homestead Bakery, Inc., v. Marsh, 75 Cal.App. 247, 258–259, 242 P. 749; People ex rel. Paganini v. Town of Corte Madera, 97 Cal.App.2d 726, 729, 218 P.2d 810. These laws were both passed at a time when the people of the state were alarmed over recent earthquake damage to schools and other public buildings in southern California.

At the outset of our inquiry, it should be noted that in order to exclude municipalities from exercising regulatory functions in the legitimate realm of police power, the state must completely and exclusively occupy the whole field. Pulcifer v. County of Alameda, 29 Cal.2d 258, 260–261, 175 P.2d 1; Ex parte Daniels, 183 Cal. 636, 192 P. 442, 21 A.L.R. 1172; Atlas Mixed Mortar Co. v. City of Burbank, 202 Cal. 660, 663, 262 P. 334; Ganley v. Claeys, 2 Cal.2d 266, 40 P.2d 817; Ex parte Grey, 11 Cal.App. 125, 104 P. 476; In re Murphy, 190 Cal. 286, 212 P. 30; In re Mingo, 190 Cal. 769, 214 P. 850; Natural Milk Producers Ass'n of California v. City & County of San Francisco, 20 Cal.2d 101, 109, 124 P.2d 25.

As is said in Pipoly v. Benson, 20 Cal.2d 366, 371, 125 P.2d 482, 485, 147 A.L.R. 515: ‘The difficult question in such cases is whether the state law was intended to occupy the entire field.’ This difficulty is obviated when the legislature expressly declares in its enactment that its regulations are not intended to be exclusive, In re Iverson, 199 Cal. 582, 588, 250 P. 681; Natural Milk Producers Ass'n of California v. City & County of San Francisco, supra, 20 Cal.2d 101, 110, 111, 124 P.2d 25, or when, on the other hand, the law making body of the state explicitly includes in the statute a statement of intention to occupy the whole field accompanied by a general plan for the implementation of such intention. Pipoly v. Benson, supra, 20 Cal.2d 366, 372, 125 P.2d 482, 147 A.L.R. 515; Ex parte Daniels, 183 Cal. 636, 641–642, 192 P. 442, 21 A.L.R. 1172.

In situations in which there has not been such an outright declaration of intention, ‘(d)etermination of the question whether the legislature has undertaken to occupy exclusively a given field of legislation depends upon an analysis of the statute and a consideration of the facts and circumstances upon which it was intended to operate.’ Tolman v. Underhill, 39 Cal.2d 708, 712, 249 P.2d 280, 283. See also Mann v. Scott, 180 Cal. 550, 557–558, 182 P. 281.

In Tolman v. Underhill, supra, 39 Cal.2d 708, 712, 249 P.2d 280, 283, it is said:

‘Where the Legislature has adopted statutes governing a particular subject matter, its intent with regard to occupying the field to the exclusion of all local regulation is not to be measured alone by the language used but by the whole purpose and scope of the legislative scheme.’ Citing Eastlick v. City of Los Angeles, 29 Cal.2d 661, 666, 177 P.2d 558, 170 A.L.R. 225; Pipoly v. Benson, supra, 20 Cal.2d 366, 371–373, 125 P.2d 482, 147 A.L.R. 515; and Ex parte Daniels, supra, 183 Cal. 636, 642–643, 192 P. 442, 21 A.L.R. 1172.

With these guiding principles in view, let us traverse the Field Act itself, section by section, as amended and incorporated in the Education Code. Ed.Code, §§ 18191 to 18205. By section 18191, the Division of Architecture of the Department of public Works is directed to ‘supervise the construction of any school building or, if the estimated cost exceed four thousand dollars ($4,000), the reconstruction or alteration of or addition to any school building, for the protection of life and property.’ Section 18192 defines ‘school building, as any building ‘used, or designed to be used, for elementary or secondary schools or junior college purposes and constructed, reconstructed, altered, or added to, by the State or by any city or city and county, * * * or by any school district of any kind within the State, or by the United States Government, or any agency thereof.’ Section 18193 defines ‘construction or alteration’ in broad and inclusive terms.

The Division of Architecture ‘shall pass upon and approve or reject all plans for the construction or alteration of any school building’ and the governing board of each school district is required by section 18194 to submit all plans for school buildings to the Division for approval before adopting them. The following section, 18195, requires written approval of the plans ‘as to safety of design and construction by the Division of Architecture’, as a condition precedent to the letting of any contract for construction or alteration of any school building. Section 18196 provides for the submission of ‘plans and full, complete, and accurate specifications, and structural design computations, and estimates of cost, which shall comply in every respect with any and all requirements prescribed by the Division of Architecture’ and section 18197 specifies a substantial filing fee based on the estimated cost of the project. All fees go to the state treasury to the credit of the Division of Architecture Public Building Fund by direction of section 18198.

Section 18199 provides that plans, specifications and estimates must be prepared by a certified architect or certified structural engineer, who shall supervise the work done, except that as to alterations or repairs which do not involve architectural or structural changes, a certified professional engineer may act. Section 18200 invalidates contracts in connection with construction work which do not comply with the foregoing requirements and forbids the expenditure of public moneys for any work which is not in conformity with the views of the Division of Architecture as evidenced by its written approval. Section 18201 provides for verfied progress reports by the architect, engineer, inspector and contractor upon demand of the Division. Section 18202 authorizes rule making by the Division. Section 18203 requires inspection by the Division of the building during construction and states ‘The school district, city, city and county, or the political subdivision within the jurisdiction of which any school building is constructed or altered shall provide for and require competent, adequate, and continuous inspection during construction or alteration by an inspector satisfactory to the architect or structural engineer and the Division of Architecture.’ Section 18204 provides that ‘Any person who violates any of the provisions of this article or makes any false statement in any verified report or affidavit required pursuant to this article, is guilty of a felony.’

Summarizing, the statute applies to all school buildings as originally built and to the reconstruction at a cost of more than $4,000 of any school building already existing; plans must be approved in writing by the Division of Architecture as to safety of design and construction before approval by school boards or the letting of any contract; continuing effective supervision is provided for and the sanctions for the enforcement of the act are serious and fully adequate. Safety of design and construction seem to be the key words of the enactment. The Attorney General was apparently of the same opinion when he said, as to the Field Act, ‘its chief objective’ was ‘to insure that public school buildings within the state be constructed or remodeled so as to resist, insofar as is possible, damage by earthquake.’ (26 Op.Cal.Atty.Gen. 75, 76.)

As already pointed out, section 18202 of the Education Code authorizes the making of rules of the Division of Architecture. Let us examine these rules to see whether, considered with the code sections, they indicate the intent and purpose of the legislation. Armenta v. Churchill, 42 Cal.2d 448, 455, 267 P.2d 303.

Rules and regulations effective March 22, 1945, were adopted pursuant to section 18202 of the Education Code in implementing the Field Act. Section 2 of these original rules was as follows:

‘Nothing herein stated shall be construed to exempt the school board and its agents, or the contractor, from the provisions of local ordinances, regulations or building codes with reference to the issuance of building permits, inspection of construction, or from such protective and regulatory measures as may be in effect. Where local building authorities have jurisdiction, the approval of such authorities shall be obtained before final submission of the plans and specifications to the Division of Architecture for approval.’

The rules were revised in 1953 (Reg. 53, No. 15–9–5–53.). Section 2 of the Revised Rules indicates that they were intended to establish reasonable standards and minimum requirements in the design, construction, reconstruction and alteration of, and addition to, school building in order to withstand wind and earthquakes and to insure safety of construction. Section 70, relating to requirements for design and construction, reads, in part: ‘It is not the intention to limit the ingenuity of the designer nor to interfere with the existing building rules and regulations where such rules and regulations are more stringent.’ Section 90, relating to stresses, under the heading ‘Group 2. Earthquake Protection for Buildings in General’, provides: ‘The allowable stresses set forth in sections 101 to 1206, inclusive, following, are made applicable for the purposes of section 19151 of the Health and Safety Code (Riley Act) in localities which have no ordinance on the subject.’ Section 115 is as follows: ‘Regulations and design values established in these rules and regulations are minimum requirements. Nothing herein contained shall be interpreted to interefere with or to waive the requirements of applicable local or state building laws or ordinances where the requirements of these laws are more stringent than the requirements of these rules and regulations.’

It would thus appear that the rules adopted by the Division of Architecture were prepared on the assumption that the powers of municipalities to supervise and control construction within their corporate limits in so far as they do not conflict with the general law are preserved and are still effective.

A note appended to section 1 of the Revised Rules states that they are promulgated under the Education Code sections above referred to and section 19151 of the Health and Safety Code (a part of the original Riley Act hereinbefore referred to and now codified in sections 19100 to 19170, Division 13, Part 3, Chapter 2, ‘Earthquake Protection’, of the Health and Safety Code.) The note supports the suggestion of counsel for the appellants that the Field Act and the Riley Act are in pari materia and that as the codification of the Riley Act clearly recognizes the power of a city to prescribe construction standards higher than those set forth in the Riley Act, Health and Saf. Code, § 19101, and otherwise recognizes the continued existence of local building ordinances (e. g. Health and Saf. Code, sec. 19151), it must be assumed that the same legislative intent with respect to local building ordinances applies also to the codified Field Act. Counsel for respondent argues to the contrary that a reading of the two enactments shows on the face of the record a legislative intent to differentiate between the two kinds of buildings treated by the two laws. In any event, the history of the Field and Riley acts shows that they were passed at a time of crisis for the purpose of protectin the public from the hazard of injury or death from buildings subjected to the unusual stresses incidental to earthquakes. Both enactments were primarily safety measures to insure adequate building construction to prevent casualties resulting from temblors. This fact is further and conclusively established by section 9 of the original Field Act, which reads as follows:

‘The facts constituting the necessity are as follows: The series of earthquakes occurring in the southern portion of the State has caused great loss of lief and damage to property. The public school buildings, constructed at public expense, were among the most seriously damaged buildings. Much of this loss and damage could have been avoided if the buildings and other structures had been properly constructed. The school buildings which will be erected, constructed and reconstructed to replace the buildings damaged or destroyed by the earthquakes should be so constructed as to resist, in so far as is possible, future earthquakes. These buildings will be erected, constructed and reconstructed at once and accordingly it is necessary that this act go into immediate effect in order that the lives and property of the people will be protected.’

It is our carefully considered conclusion from an examination of the foregoing diverse items that the legislature did not intend to, and did not, preempt the whole field of school building construction; that it intended only to prescribe and enforce general standards and requirements with respect to safety of design and construction of new school buildings and the major repair of old buildings, with particular reference to earthquakes and high winds, and that while such state supervision is supreme in these fields, it was never intended that municipalities should be deprived of their right to supervise and control construction of buildings within their corporate limits in other particulars. To the argument that duplicated or supplementary control of the construction of school buildings in cities may lead to confusion and paralysis, the reply is two-fold: It should be possible in this field, as in so many other areas of our democratic government, for responsible officials to exercise self-restraint and willing cooperation for the public good; but if they fail to do so, the legislature has the power at any time to give sole authority to a state agency to control the construction of all school buildings.

The judgment is reversed, with instructions to the trial court, upon the giving down of the remittitur, to enter a judgment for the defendants.

CONLEY, Justice pro tem.

BARNARD, P. J., and MUSSELL, J., concur.