Vanderbush v. Board of Public Works

WORKS, J.

This proceeding was instituted in the superior court for the purpose of procuring the issuance of a writ of mandate. The petition, which was filed November 16, 1921, alleges that petitioner, being desirous of constructing a five-unit bungalow court upon certain property in the city of Los Angeles, had made application to defendant board of public works for a permit to make the improvement and that the application was denied. Immediately after the filing of the petition, and on the day upon which it was filed, the court issued its alternative writ of mandate requiring defendant board to issue the permit or to show cause for its failure to do so. Defendant board did not issue the permit, but on November 28, 1921, filed its answer to the petition for the writ. The answer alleges, in connection with certain denials of averments of the petition, that the property upon which petitioner proposed to construct the bungalow court is located in a certain designated portion of Los Angeles, “that said portion ... is a highly improved residential

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district, and is improved with many expensive single family dwellings, ...” that “on or about the eighteenth day of October, 1921, the council ... of Los Angeles duly and regularly enacted and adopted an ordinance, being Ordinance No. 42666 (New Series), which ordinance provides generally for the zoning of said city and in particular has created the district wherein” petitioner’s property “is located as a zone wherein none but single family dwellings may be erected, constructed and maintained, said zone being in said ordinance designated as Zone A . . . ; that said ordinance was thereafter approved by the mayor of . . . Los Angeles and that the same is now being duly published ... as provided by the charter of . . . Los Angeles and will become effective November 29, 1921. ...” Here followed certain other affirmative allegations which it is not necessary to repeat. The proceeding came on for hearing November 28, 1921, which, it will be observed, was the day before Ordinance No. 42666 was to take effect, according to the allegations of the answer. The hearing was concluded on the same day and on that day the trial court made its order or judgment discharging the alternative writ of mandate and denying the issuance of a peremptory writ. Petitioner appeals.

The judgment of the trial court appears to have been based upon the affirmative allegations of the answer which are set forth above. At any rate, respondents defend the judgment upon that theory. Appellant contends that there was no evidence before the court which would have supported a finding that those allegations were true, particularly those concerning Ordinance No. 42666. Respondent’s insistence is, in the first place, the ordinance not having been introduced in evidence, that the trial court must have taken and did properly take judicial notice of its provisions. This position clearly is untenable. Granting for the moment that the superior courts may take judicial notice of the terms of city ordinances as laws, they cannot take such notice before such ordinances take effect. Nor does this statement apply peculiarly to city ordinances. It is trite to assert that the courts can take judicial notice of the existence of no law before it has an existence. When the trial court heard and decided this proceeding Ordinance No. 42666, so called, was not an ordinance, if, indeed, it ever became one.