Barrett v. Superior Court

STURTEVANT, J.

After the

remittiturs

were filed in

Andrews

v.

Barrett,

100 Cal. App. 801 [281 Pac. 79], and

Andrews

v.

City of Piedmont,

100 Cal. App. 700 [281 Pac. 78], two companion cases, the plaintiff again applied for the building permit which was the subject matter involved in those two actions. His last application was not granted because a new ordinance had been passed. He then commenced a contempt proceeding. The trial court entered a judgment of contempt against R. H. Barrett, as building inspector, and against the City of Piedmont. Thereafter they applied to this court for a writ of review.

The ordinance under consideration in the two cases above cited was No. 268. Those cases were commenced on March 29, 1928. On March 21, 1929, Ordinance No. 315 was passed. The questions before the court in the case at bar turn on the effect, if any, that the provisions of the new ordinance have on the rights of the parties in the two cases cited.

As stated above, the City of Piedmont and its officers rely on the provisions of the new ordinance. The property owner, F. A. Andrews, contends that the latter ordinance has no effect whatever, that his application for a permit should have been granted, and that the judgment of contempt was properly entered. That the latter ordinance has no effect whatever is predicated on the contention that whether said ordinance is valid or invalid there is nothing in the record to the effect that it contains any word or words showing that any of its provisions were retroactive. The

[659]

point must be sustained. Counsel have stipulated to the facts which were before the trial court. Neither Ordinance No. 315 nor any section thereof was before that court. Nor was there before the court any stipulation as to when said ordinance took effect. It follows that the trial court did not err in holding, in effect, that the passage of Ordinance No. 315 was immaterial as to anything before the court. As will presently appear, the fact that said ordinance was not retroactive is not necessarily determinative of the question of its materiality in the case at bar. If the lot owner did not hold a final judgment, and if this were an initial proceeding to compel the issuance of the permit, it might well be contended that Ordinance No. 315 was the controlling law and therefore the City of Piedmont and its officers had the right to refuse the permit.