SCHAUER, J. I dissent from all of the judgment of this court except insofar as it reverses that part of the trial court’s order which purports to restrain the members of the board of supervisors from proceeding with the enactment of a regulatory ordinance governing the construction and operation of reduction plants.
The chief question presented for decision is whether under the provisions of the State Planning Act (2 Peering’s Gen. Laws, Act 5211b) and of Marin County Ordinance No. 264 the Board of Supervisors of Marin County may grant a use permit despite an adverse recommendation of the county planning commission. For reasons hereinafter stated, I am of the opinion that final authority in such matters rests in the board, that the recommendation of the planning commission is advisory only, and that the order of the trial court based upon a contrary view-should be reversed in its entirety.
The majority opinion rests largely, if not completely, as to this phase of the case upon the declaration that “Section 19 [of Marin County Ordinance 264] thus expressly provides that no permit shall be granted without the approval of the planning commission. The board of supervisors is given power merely to approve or refuse to approve the decision of the commission approving the application for a permit ; the [81]board of supervisors is given no authority over the application should the commission deny it.” Having asserted such significance for section 19 of the ordinance, the opinion proceeds to interpret other sections thereof in the “light” of unquestioning acceptance of, and dependence on, its primary assertion. If that basic pronouncement falls, so does the whole discussion.
The obvious vice in the above quoted pronouncement lies in the fact that section 19, read in its context, does not even purport to deal with powers of the board of supervisors; it deals expressly with powers of the planning commission. Ordinance 264, enacted by the board of supervisors, was not enacted to create a board of supervisors or to define the powers of the creating board; it was enacted to create a planning commission and to define the powers of such commission. Manifestly, such ordinance is not intended to constitute a grant of power to the creating board; rather is it a delegation by the creating board of certain powers within its authority. A delegation of authority by a superior to an inferior does not work a complete divestment of the power of the superior; the power of the inferior derives from the superior and the latter is the final repository of all the power, with the right to exercise the same, except as such right may be limited by its own acts. The ordinance does provide for a planning commission ; it does specify the powers delegated to that commission; and it does declare limitations on the authority of the commission it creates; but nowhere does it declare that the power of the commission is total or absolute or exclusive or other than advisory; nowhere does it declare that the board of supervisors abdicates, or transfers to the commission, the ultimate power of decision. The language most strongly relied upon by the majority is (§ 19) : “No permit shall be issued under the provisions of this section [i.e., by the planning commission] unless and until a decision of the Planning Commission, as aforesaid, approving the same, is approved and confirmed by the Board of Supervisors.” (Italics added.) This stated limitation of power seems to me to be clearly a limitation upon the "commission, not upon its creator, the board of supervisors. It appears to me to be reasonably designed to preclude, not to establish basis for, a construction of the law vesting a totality of power in the commission. Theories of absolutism in administrative agencies are not favored in traditional concepts of our ideology and should [82]not be invoked by judicial interpolation. (See Roscoe Pound, “Annual Survey of Law: Decisions of Courts Show Some Dangerous Trends” (Nov. 1947), 33 Am. Bar Ass’n. Journal 1093.) That it is only by dint of such interpolation that the conclusion of the majority can be reached becomes evident upon consideration of the ordinance as a whole.
Ordinance No. 264 was adopted in 1938, pursuant to the mandatory provisions of the State Planning Act as amended in 1937 (Deering’s Gen. Laws, Act 5211b), and sets up a comprehensive zoning system for the county covering all territory therein outside of incorporated cities and towns. By its provisions, the county is zoned into various districts, including residential, commercial, and light and heavy industrial, and the uses to which the land lying within the respective districts may be put are specified. Procedures are also set forth for the application for and granting of adjustments or variances, and of use permits for the operation of various types of businesses in certain districts.
By section 11.18 of Ordinance 264 district “M-l,” in which petitioner seeks to establish a fish cannery and reduction plant, is zoned for “1. Commercial excavating ... 2. All other uses not otherwise prohibited by law, except the following: . . . reduction, canning, processing or treatment of fish or animal products of any kind ...” Section 19, which deals with adjustments, variances, and appeals, provides that “The Planning Commission, subject to the approval and confirmation of the Board of Supervisors in each ease, as hereinafter provided, shall have power to grant adjustments and variances in any of the provisions of this ordinance to the extent of the following and no further: . . .
“Application for any adjustment or variance . . . shall be made to the Planning Commission in the form of a written application . . .
“ [Following a public hearing] The Commission shall make its decision on the said application and shall report such decision to the Board of Supervisors.
“In granting any adjustment or variance under the provisions of this section, the Planning Commission shall designate such conditions in connection therewith as will, in its opinion, secure substantially the objectives of the regulation or provision to which such adjustment or variance is granted, as to light, air, and the public health, safety, comfort, convenience and general welfare. No permit shall he issued un[83]der the provisions of this section unless and until a decision of the Planning Commission, as aforesaid, approving the same, is approved and confirmed by the Board of Supervisors. . . . Upon receipt of such report, if the decision of the Planning Commission approved the granting of the application, the Board of Supervisors either shall . . . approve and confirm said decision, whereupon the permit as applied for may issue; or shall refuse to approve and confirm such decision. ...” (Italics added.)
Section 20 states that "Use permits may be issued for any of the following:
"1. Any of the uses or purposes for which such permits are required or permitted by the prolusions of this ordinance. . . .
"Such use permits shall be issued under the same procedure as that specified in Section 19 . . . for the granting of adjustments or variances, except that: ... 2. The findings of the Planning Commission, except as otherwise provided in this section, need include only that the establishment, maintenance or conducting of the use for which a use permit is sought will not, under the circumstances of the particular case, be detrimental to the health, safety, morals, comfort, convenience, or welfare of persons residing or working in the neighborhood of such use and will not, under the circumstances of the particular case, be detrimental to the public welfare or injurious to property or improvements in said neighborhood.
"... All other provisions of said Section 19, including the designation by the Planning Commission of any conditions upon which the use permit may be issued and guarantees that such conditions will be complied with, shall apply to the granting of a use permit.”
Sections 9 and 10 of the State Planning Act (Deering’s Gen. Laws, Act 5211b), which act concededly is controlling over the local Marin County ordinance, provide as follows:
" § 9. The legislative body [of a city or county] is authorized and empowered ... to change or add to the master plan or any part thereof ... or to change or add to the official plan or any part thereof. The legislative body shall first refer the proposed change or addition to the planning commission for a report thereon. [Public hearings are then required.] . . . Proceedings for any change in . . . the [84]master plan or any official plan, or any part thereof, may also be initiated by the planning commission.
‘ ‘ § 10. The body creating snch planning commission may, by general or special rule, provide for the reference of any other matter or class of matters to the planning commission before final action thereon by the public body or officer of said city, county, or city and county, having final authority thereon, with the provision that final action thereon shall not be taken until said planning commission has submitted its report thereon or has had reasonable time, to be fixed in said rule, to submit the report. ...”
In support of its position that the board of supervisors cannot lawfully issue a use permit against the adverse recommendation of the planning commission, the majority opinion, as previously indicated, relies upon those portions of section 19 of Ordinance 264 which state that “No permit shall be issued . . . unless and until a decision of the Planning Commission, . . . approving the same, is approved and confirmed by the Board of Supervisors. . . . Upon receipt of such report [of the decision of the commission], if the decision of the Planning Commission approved the granting of the application, the Board of Supervisors either shall . . . approve and confirm said decision, whereupon the permit as applied for may issue; or shall refuse to approve and confirm such decision.” For the reasons hereinafter stated I am convinced that, properly construed, the quoted provisions of section 19, as adopted into section 20, grant to the planning commission only the limited power to consider the merit or lack thereof of each application for a use permit and to transmit to the board of supervisors the opinion of the commission thereon; in other words, the commission is to act as an advisory body but is to have no power, under the terms of the ordinance, to issue a final decision either for or against a permit.
By the provisions of section 9 of the State Planning Act quoted hereinabove, power to “change or add to the master plan or any part thereof . , . or to change or add to the official plan or any part thereof” is expressly placed in the legislative bodies of local governmental units—in this instance the Board of Supervisors of Marin County—subject only to the requirement that the matter first be referred to the planning commission for a report and that public hearings be had, and by section 10 it is provided that “The [85]body creating such planning commission may . . . provide for the reference of any other matter or class of matters to the planning commission before final action thereon by the public body or officer . . . having final authority thereon, with the provision that final action thereon shall not be taken until said planning commission has submitted its report thereon or has had reasonable time ... to submit the report. ...” Whether the granting of a nonconforming use permit be regarded on the one hand as falling under the “change ... to the master plan or ... to the official plan” as described in section 9, or on the other hand as being one of the “other . . . class of matters” mentioned in section 10, the statute unequivocally contemplates that the ultimate decision is in the hands of the local legislative body. No provision is made that the report of the planning commission shall carry any other or greater weight than that which the legislative body may wish to bestow on it.
Nor, I am convinced, was it the intent of the board of supervisors in adopting Ordinance 264 to irrevocably delegate a controlling power to the planning commission, or otherwise to so limit the authority primarily vested in the board as to render them powerless to grant a nonconforming use permit without prior approval of the commission. Section 19, which treats of adjustments, variances and appeals, and which is to be followed generally in the application for and issuance of use permits under section 20, carries an introductory sentence which, as quoted hereinabove, states that “The Planning Commission, subject to the approval and confirmation of the Board of Supervisors in each case, as hereinafter provided, shall have power. ...” (Italics added.) It is to be noted that this section contains the delegation of only a limited power to the commission and that such power is expressly declared to be “subject to the approval and confirmation of the Board of Supervisors in each ease.” Following the qualified grant there appear procedural and other provisions to be followed by the commission before its decision and report to the board is made. The subsequent statements, so heavily relied upon by the majority opinion, that “No permit shall be issued under the provisions of this section unless and until a decision of the Planning Commission, as aforesaid, approving the same, is approved and confirmed by the Board of Supervisors. ... [I]f the decision of the Planning Commission approved the granting of the application, [86]the Board of Supervisors either shall . . . approve and confirm said decision, whereupon the permit as applied for may issue; or shall refuse to approve and confirm such decision. . . .,” would seem to be, and it is my view that they are, inserted as an explicit recognition of the limitation upon the power of the planning commission and not as creating a controlling delegation of, or limitation upon, the ultimate power of the board of supervisors. The section, of course, contains no grant of power to the board of supervisors because all power not granted or delegated is reposed by the basic state law in the board. Ultimate disposition of the matters dealt with in the sections in question (§§19, 20) would, at least normally, be a function of the board. No provision appears in any portion of the ordinance which expressly declares that the board shall be bound by a report of the planning commission adverse to the granting of a nonconforming use permit, and certainly in accord with accepted legal principles such a restriction should not be added by judicial interpolation.
The majority opinion relies upon Magruder v. City of Redwood (1928), 203 Cal. 665, 675 [265 P. 806]; and Hopkins v. MacCulloch (1939), 35 Cal.App.2d 442, 452 [95 P.2d 950] (see also Schofield v. City of Los Angeles (1932), 120 Cal.App. 240, 245-246 [7 P.2d 1076]) as authority for the proposition that a board of supervisors is bound by county ordinances. I discover nothing in any of these cases which should affect the decision here. In the Magruder case it was held that a city board of trustees which granted a permit to construct a building that was subsequently used for a purpose in violation of a zoning ordinance did not thereby place themselves “in a position that prevented them from thereafter enforcing the terms of the ordinance.” (P. 674 of 203 Cal.) In Hopkins v. MacCulloch (1939), supra, 35 Cal.App.2d 442, 452, the city council of Newport Beach was held to be without power to grant a nonconforming use permit by a vote of only four of its five members, inasmuch as a city ordinance required the “full, affirmative vote of all members thereof.” No such provision is contained in Ordinance No. 264 of Marin County, nor are analogous requirements set forth. And contrary to the position taken by the majority opinion it is noted that those provisions in the Newport Beach ordinance which dealt with consideration by the planning commission of nonconforming use permits were held (at [87]p. 450 of 35 Cal.App.2d) not to be “a delegation of power or authority of the city council to the planning commission.” Furthermore, the court there expressly observed that “From an interpretation of . . . section 10 [of the planning act] . . . when construed with the ordinance adopted in pursuance thereof, it appears to us that the planning commission created by the ordinance was more or less an advisory body only, and its powers must be limited to its consideration of applications for permits, and to recommendations for or against the allowance of the permit. The commission is authorized by the ordinance to hold public hearings on any such application after publication of notice of hearing, to the end that property owners may have an opportunity to object to the granting of the permit on the ground that detriment or injury may result to the neighborhood.” The same may be appropriately said in respect to Marin County Ordinance 264.
If there still can remain any doubt as to the proper construction of the ordinance in question it is resolved by the fact that in this case we have for our guidance not only the language of the enactment and the considerations which have been mentioned but also evidence establishing the construction placed upon the ordinance as to the precise point now in dispute by the very legislative body which enacted it. The ordinance was adopted in 1938. The record shows, with no dispute, “That with no exception, the Minutes of the Board of Supervisors show that from August 3rd, 1938, the date of the passage of said Marin County Planning Ordinance No. 264, to date, the Marin County Board of Supervisors has held hearings upon recommendations of the Marin County Planning Commission whether the . . . Commission recommended approval or denial of the said applications for Use Permits, Adjustment Permits or Variance Permits;
“That . . . The Minutes of the Board of Supervisors show specific instances in which the . . . Planning Commission presented to the Board of Supervisors their recommendations denying applications for Adjustment Permits and Use Permits, whereupon the . . . Supervisors held a hearing, reviewed the recommendation of the . . . Planning Commission and either approved the recommendation denying said application or reversed the recommendation of the [88]Planning Commission' and granted the application for a Use Permit or an Adjustment . . .
“That . . . the Marin County Board of Supervisors consistently and with no exception, interpreted Section 19 of . . . Ordinance #264 as never having divested them of the power to overrule the recommendations of the . . . Planning Commission . . . whether said . . . Planning Commission recommended that said Use Permit be denied or granted. ’ ’
The record contains certified copies of excerpts from minutes of meetings of the board of supervisors showing that on 16 different applications (previous to the one in this case, which is number 17), at meetings held on November 14, 1938, April 10, 1939, November 25, 1940, February 24, 1941, May 26, 1941, October 14, 1941, April 6, 1942, September 14, 1942, November 9, 1942, November 23, 1942, April 7, 1943, July 26, 1943, November 8, 1943, November 22, 1943 (two applications), and November 13, 1944, the board evidenced its construction of the ordinance by proceeding to hear, consider and pass on applications for use permits or adjustments notwithstanding denial recommendations by the planning commission. There is no suggestion that the record is incomplete or that in any instance, from the enactment of the ordinance to the date of this action, the board deviated from its construction of the ordinance. Thus, in every ease wherein the point was involved, the legislative body which drafted and adopted the ordinance construed it as giving the planning commission investigative and advisory powers only and as leaving in the board the jurisdiction which they exercised.
The majority opinion mentions two instances, other than in the matter before us, in which the board granted an adjustment or use permit “despite the commission’s- denial of the application”; it wholly ignores the 14 other instances in which the board just as clearly evidenced the same construction by considering and passing on the commission’s recommendation for denial. The evidence of construction is equally clear whether the planning commission’s recommendation for denial was disapproved or approved. If the majority opinion is correct, the action of the planning commission recommending denial was not a mere advisory recommendation, it was a final denial and there was nothing for the board to act on. Yet in every instance it did consider [89]the application and the planning commission’s recommendation and did take final action for the granting or denial of the application.
This court has repeatedly stated that the construction of a statute by the officials charged with its administration must be given great weight. (Nelson v. Dean (1946), 27 Cal.2d 873, 880 [168 P.2d 16]; Whitcomb Hotel, Inc. v. California Emp. Com. (1944), 24 Cal.2d 753, 756 [151 P.2d 233, 155 A.L.R. 405]; County of Los Angeles v. Frisbie (1942), 19 Cal.2d 634, 643 [122 P.2d 526]; Los Angeles County v. Superior Court (1941), 17 Cal.2d 707, 712 [112 P.2d 10]; Riley v. Thompson (1924), 193 Cal. 773, 778 [227 P. 772].) Here we have contemporaneous and administrative construction by the very body which enacted the ordinance and such construction has been uniform and unwavering and repeatedly acted upon and unequivocally evidenced in a series of proceedings beginning within a few months of adoption of the ordinance and running down to the date of the consistent action in the matter now before us. My attention has never been called to a case wherein the elements demanding respect for contemporaneous and administrative construction are greater.
So far as concerns that portion of the injunction order appealed from which restrains the board of supervisors from proceeding with the adoption of the ordinance to regulate reduction plants, it is only when such a board is acting in excess of its jurisdiction that its legislative actions may be interfered with by the courts. (See Glide v. Superior Court (1905), 147 Cal. 21, 25 [81 P. 225]; Muchenberger v. City of Santa Monica (1929), 206 Cal. 635, 646 [275 P. 803]; Reclamation District v. Superior Court (1916), 171 Cal. 672, 681-682 [154 P. 845]; cf. Brock v. Superior Court (1938), 11 Cal.2d 682 [81 P.2d 931]; McKay Jewelers v. Bowron (1942), 19 Cal.2d 595, 599 [122 P.2d 543, 139 A.L.R. 1188].) Inasmuch as the Legislature has by the State Planning Act placed in the Board of Supervisors of Marin County final authority to act on zoning matters in that county, it is apparent that the adoption of regulatory ordinances falls within such authority. The conditions to be designated by the planning commission pursuant to sections 19 and 20 of Ordinance 264, should it recommend to the board the granting of a variance, adjustment, or nonconforming use permit are, as are the other recommendations of the commission, advisory [90]only, and deprive the board of none of its ultimate power. Consequently the court below erred in enjoining further proceedings to complete the enactment of the disputed ordinance.
And until such an ordinance were adopted and in effect and appellant Alioto’s reduction plant were operating under its terms, it is difficult to perceive upon what basis the trial court could conclude, as would be necessary to sustain the injunction, that, as plaintiff-respondent attempts to plead in his complaint (and as denied in Alioto’s answer), such plant would constitute a nuisance in fact. The parties argue the point whether a reduction plant operating under a regulatory ordinance and pursuant to a use permit could lawfully be deemed a nuisance in any event (see Civ. Code, § 3482; Norton v. City of Pomona (1935), 5 Cal.2d 54, 59 [53 P.2d 952]; Eaton v. Klimm (1933), 217 Cal. 362, 370 [18 P.2d 678]). However, in view of the fact that the proposed plant would be constructed and operated in a district already zoned for heavy industry, in view of the further fact that the proposed ordinance does not purport to authorize, and does purport to forbid, conditions which might amount to a nuisance, and because other material conditions under which the plant would operate cannot be determined at this date, the trial court does not appear to have been in a position to properly determine that the plant would constitute a nuisance if and when operating.
Plaintiff-respondent’s argument that the actions of the board with respect to both the use permit and the ordinance were void by reason of the fact that Supervisor Thompson, who cast one of the three original affirmative votes, is the husband of one of appellant Alioto’s attorneys is based upon contentions that the board in hearing and passing upon an application for a nonconforming use permit is acting in a judicial, or at least quasijudicial, capacity; that the granting of such a permit “appears to be a right in the nature of a grant or franchise ’ ’ and therefore is a contract; that because sections 168 and 171 of the Civil Code make a wife’s earnings after marriage liable for necessities of life contracted for by her husband despite a gift to her from him (as was here made by Supervisor Thompson to his wife) of his interest in such earnings, Supervisor Thompson was necessarily interested in assisting his wife to successfully represent Alioto and thus, presumably, to earn a larger fee for her services; and that [91]therefore Supervisor Thompson was by reason of public policy as expressed in various court decisions and of statutory law as set forth in section 170 of the Code of Civil Procedure and section 1090 of the Government Code disqualified from acting in either a quasijudicial capacity or in the making of a contract by the board of supervisors.
I find no occasion to pass on the question of the asserted disqualification of Mr. Thompson. Such question has become entirely moot. Since the appeal was taken Mr. Thompson has ceased to be a member of the board of supervisors. Immediately following the vote on the application for the nonconforming use permit and again following that on the proposed ordinance, one of the supervisors who had voted against both measures gave notice that, under parliamentary rules of order, he elected to change his vote to the affirmative and moved for reconsideration of the questions at the next meeting of the board of supervisors. The board then adjourned to meet again on March 12, 1945, and two days prior to that date (on March 10, 1945) plaintiff filed his complaint herein. The status of the application is, therefore, that of a pending matter before the board of which Mr. Thompson is not a member. The legal question as to whether Mr. Thompson was qualified or disqualified in respect to participation in the original vote does not appear to have any possible effect upon the validity of the proceedings which must ensue upon the going down of the remittitur. The motion for reconsideration will be acted upon by a board of which Mr. Thompson is not a member and its action will control.
For the reasons above set forth, I would reverse all portions of the order appealed from.
Shenk, J., and Carter, J., concurred.
Appellants’ petition for a rehearing was denied December 29, 1947. Shenk, J., Carter, J., and Schauer, J., voted for a rehearing.