CITY OF SARATOGA v. West Valley Joint Community College District, Real Party in Interest. (1972)

In a petition for rehearing the city for the first time suggests that a junior (community) college district is not subject to the debt limitation provisions of article XIII section 40 of the state Constitution. ‘The courts have on numerous occasions declared that they will not grant rehearings on points newly urged in the petition. It is the duty of counsel to see that all points are properly presented in the original briefs or argument, before submission.’ (Witkin, Cal. Procedure (2d ed. 1971) Appeal, s 598, p. 4526.) Nevertheless, it may simply be pointed out that the contention has no merit. The provisions ‘No . . . board of education, or school district, shall incur any indebtedness' etc. were originally enacted in article XI section 18 in the Constitution of 1879. It was not until 1926 with the adoption of section 14 of article IX that the Constitution mentioned ‘junior college’ districts. That section reads, ‘The Legislature shall have power, by general law, to provide for the incorporation and organization of school districts, high school districts, and junior college districts, of every kind and class, and may classify such districts.’ Nevertheless, the conclusion that junior or community college districts are not school districts within the constitutional restraint is unwarranted. In 1917, long before the 1926 amendment, section 1720 of the Political Code was amended to read as follows: ‘The secondary schools of the state shall be designated as high schools, technical schools, and junior colleges . . ..’ (Stats.1917, ch. 304, s 1, p. 463.) Similar provisions are now embraced in section 5552 of the Education Code. Section 25422.5 provides: ‘Except as otherwise provided in this code, the powers and duties of community college boards are such as are assigned to high school boards.’ Section 1011 which applies to the governing boards of all school districts recognizes the constitutional limitation. It is unnecessary to belabor the point by reference to numerous other provisions of the Education Code which indicate that a junior or community college district is a school district under the general state system of public instruction. Moreover it may be noted that since the Legislature has so treated junior college districts, the constitutional limitation has been twice re-enacted by amendment in 1926 and by renumbering in 1970.

The city also requests that the opinion be given prospective force only because some ‘thirty odd’ assessment proceedings of similar nature have been conducted throughout the state and many millions of dollars in assessment bonds have been sold to private persons all across the United States. If various attorneys, as alleged, have had the temerity to approve the validity of such proceedings in the absence of a controlling precedent when there are readily available proceedings such as these through which to test that validity, they must bear the consequences of their action. To hold otherwise would be to recognize that the constitutional provision only extended as far as the retained counsel, rather than the court, said it did. It is incomprehensible to one who is familiar with the necessity of legal approval of public bond issues, and the provisions for validating suits and validating acts that such a state of affairs could have been permitted to occur.

Other grounds for rehearing which relate to conclusions of fact and law set forth in the opinion raise no grounds for reconsideration.

The petition for rehearing is denied.

THE COURT:

Hearing denied; PETERS, J., dissenting.