Berrata v. Sales

PLUMMER, J.

— Plaintiff had judgment in an action instituted to prohibit the defendants from enforcing a certain ordinance numbered 284, charter series, entitled, “An ordinance establishing certain districts or zones and regulating the use of property and the location of various industries and business or commercial establishments in the City of Petaluma” and the defendants appeal.

The city of Petaluma is a municipal corporation, operating under a freeholders’ charter, effective in 1911 (Stats. 1911, p. 1799).

On November 19, 1923, the city council of the city of Petaluma adopted an ordinance creating a planning commission, according to the provisions of the act of the legislature of 1915 (Stats. 1915, p. 708), and as amended by an act approved May 27, 1921 (Stats. 1921, p. 772). See, also, act of the legislature, approved May 31, 1917 (Stats. 1917, p. 1419). Thereafter, said commission reported to the city council a draft of a proposed zoning ordinance and

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also a map of the several proposed zones. On the twentieth day of July, 1925, the proposed ordinance was introduced in the city council of said city of Petaluma and the zoning map just referred to filed with the city clerk. Thereafter, and on the twenty-third day of October, 1925, the city council ordered that said proposed ordinance be published once in full in the “Petaluma Argus,” a-newspaper of general circulation and the official newspaper of the city of Petaluma ; that said ordinance was published on the twenty-sixth day of October, 1925; that on the second day of November, 1925, said purported ordinance was adopted by the city council of the city of Petaluma.

The trial court held the proposed zoning ordinance void on two grounds: 1. That the procedure provided by the act of the legislature, approved May 31, 1917, relative to the adoption of zoning ordinances by municipalities was not complied with, and 2. That the proposed ordinance was not published in full, as required by section 12 of article VI of the charter of Petaluma.

The charter of the city of Petaluma, approved by concurrent resolution of the California assembly on the fourteenth day of February, 1911 (Stats. 1911, p. 1799), contains the following relative to the powers of the city. Section 19 of article III: “To exercise police powers and make all necessary police and sanitary regulations and to adopt ordinances and prescribe penalties for the violation thereof.” Other sections specifying the powers of said council are also set forth and then in the same article we find section 68, reading as follows: “In the absence of any procedure for carrying out or effectuating any granted or implied power or authority, the general law of this state where applicable and where not inconsistent with any express provision of this charter shall prevail and shall be followed. ’ ’