Rigdon v. Common Council (1916) · DecisionDepot

Rigdon v. Common Council

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Court of Appeal Mar 8, 1916 No. Civ. No. 1781.Published

Before: James

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Holding. The court held that the city council's resolution granting a liquor license was void because it violated an existing restrictive zone ordinance that had not been effectively repealed, as the attempted repeal was suspended by a valid referendum petition. The court further held that the council's action in granting the license was a quasi-judicial function subject to review by certiorari.

Issues

Whether the trial court erred in failing to require proof of the petitioners' beneficial interest before entering judgment on the return.
Whether the city council's action in granting a liquor license was a judicial or quasi-judicial act subject to review by certiorari.
Whether the ordinance restricting the location of liquor sales was effectively repealed prior to the issuance of the license.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The return to the writ constitutes the answer, as well as evidence, and the case is heard thereon, unless upon motion an additional or amended return is made.”

Synopsis

APPEAL from a judgment of the Superior Court of San Diego County. W. A. Sloane, Judge.

The facts are stated in the opinion of the court.

JAMES, J.

certiorari

petitioners herein secured a judgment annulling a certain resolution of the common coun

[108]

oil of the city of San Diego, by which resolution a retail liquor license was attempted to be awarded to one Green. The writ issued brought before the trial court for review the resolution, the validity of which is questioned by the proceeding, as well as certain ordinances and other records of the city of San Diego. After an amended return had been made, the petitioners moved for judgment to be entered as prayed for upon the record presented in the return, and the judgment appealed from was entered responsive to such motion. The appellants brought up in their record the papers designated by section 1077 of the Code of Civil Procedure, which provides, referring to the record in proceedings of

certiorari,

that “a copy of the judgment, signed by the clerk, entered upon or attached to the writ and return, constitute the judgment-roll.”

Preliminarily it is contended on behalf of the appellants that they were not accorded a hearing on the petition and writ; in other words, it is their contention that the petitioners should have been put upon proof as to all of the allegations of their petition, including the allegation as to the competency of the petitioners to appear in the proceeding. They claim the right to have tried the question as to whether the parties petitioning were “beneficially interested,” as section 1069 of the Code of Civil Procedure requires that they shall be before they are entitled to invoke the aid of the court in annulling a proceeding of a public body. They assert that, under the procedure outlined in the chapter of the code regulating

certiorari

proceedings, they were not entitled to file an answer controverting the allegations of the petition, and cite

Stumpf v. Board of Supervisors,

131 Cal. 364, [82 Am. St. Rep. 350, 63 Pac. 663], cited in

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counsel for appellants in his contention that, after the return to the writ was made, and no other steps were taken on behalf of the respondents in the proceeding to question the sufficiency of the petition as to the capacity of the parties petitioning to sue, the court should have demanded proof upon the allegation as to the interest it was asserted the plaintiffs had in the matter sought to be reviewed. At such a point in the proceedings, and upon such a state of the record, the court was entitled to consider the case upon the issue of law presented by a motion for judgment upon the facts shown in the return. The matter of the competency of the parties to sue, or the sufficiency of the petition in its statement of facts showing such competency, should all have been raised and determined by objection appropriately expressed by demurrer or motion. A demurrer would call into question the sufficiency of the facts alleged in the petition showing the competency of the parties petitioning; a motion to dismiss could have been made challenging the existence of the facts asserted showing the beneficial interest of the petitioners. This latter motion would have entitled the parties to introduce evidence by affidavit or otherwise, as the court might suggest, touching the existence of those facts. It is not made to appear at all from the judgment-roll as brought up by appellants that they sought to raise any objection, either as to the competency of the parties petitioning, or the existence of facts showing a beneficial interest as alleged in the petition. Respondents have presented, by way of diminution of the record, a copy of their petition, also a bill of exceptions which shows that in fact the appellants here did demur and move to quash the writ issued, which latter motion was submitted on the pleadings and record. We are not inclined to consider this supplemental transcript for the reason that the appellants have chosen to present their appeal upon the papers and record first mentioned herein as being that record designated in section 1077 of the Code of Civil Procedure. We think that the appeal should be decided upon that record, which brings us to the merits of the proceeding and leaves for determination the one question as to whether the resolution of the common council of the city of San Diego awarding a liquor license to Green was effective or void. Briefly stated, the facts appearing by the amended return made to the writ show that by ordinance of the city of San Diego it was made unlawful for any person to engage in

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Synopsis

JAMES, J.

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