People Ex Rel. McConnell v. City of Wilmington

California Supreme Court Aug 13, 1907 No. L.A. No. 2000.Published

Before: Henshaw

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Holding. The court held that the legislature has the authority to repeal an act of incorporation for a town that was incorporated by statute but never organized, as constitutional protections against legislative interference apply only to organized municipal corporations.

Issues

Whether the legislature has the power to repeal an act of incorporation for a town that never organized under said act.
Whether the constitutional protections for municipal corporations against legislative interference apply to entities that were incorporated but never organized.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The constitutional provisions which are relied upon deal exclusively with cities and towns which are organized municipalities.”

“A mere incorporating act, never in any way accepted, presents an entirely different case from one where the act of incorporation has been followed by organization.”

“The legislative power is plenary excepting as limited by the constitution, and there is nothing in that instrument to prevent the lawmaking power from wiping from its statute-books an incorporating act under which no organization has ever been effected.”

Synopsis

The facts are stated in the opinion of the court.

U. S. Webb, Attorney-General, and Hunsaker & Britt, for Appellant.

The town of Wilmington, immediately upon the passage of the act of February 20, 1872, became duly incorporated. (Thomason v. Ashworth, 73 Cal. 73, 14 Pac. 615 ; 1 Dillon on Municipal Corporations, 4th ed., secs. 44, 54 ; Smith’s Modern Law of Municipal Corporations, sec. 52, and cases cited ; Cooley’s Constitutional Limitations, 7th ed., sec. 165.) The special acts of March 12, 1887, purporting to repeal the statutes incorporating the town of Wilmington are unconstitutional. (Const., art. IV, sec. 25, art. XI, secs. 6, 8, 11, 12, 13, 14, 18 ; Desmond v. Dunn, 55 Cal. 242 ; People v. Hoge, 55 Cal. 612 ; Ex parte Pfahler, 150 Cal. 71 ; Wood v. Board of Election Commrs., 58 Cal. 561 ; Staude v. Board of Election Commrs., 61 Cal. 313 ; In re Guerrero, 69 Cal. 88, 10 Pac. 261 ; Thomason v. Ashworth 73 Cal. 73, 14 Pac. 615 ; Ex parte Armstrong, 84 Cal. 655, 24 Pac. 598 ; People v. Common Council, 85 Cal. 369, 24 Pac. 727 ; Lisher v. Police Court, 86 Cal. 158, 24 Pac. 1000 ; Rauer v. Williams, 118 Cal. 401, 50 Pac. 691 ; Ex parte Helm, 143 Cal. 553, 77 Pac. 453.) As the territory attempted to be incorporated embraced the town of Wilmington, the proceedings are void. (1 Dillon on Municipal Corporations, sec. 184 ; Ex parte Moore, 62 Ala. 471.) The due incorporation of the town of Wilmington was not conditional either upon the acceptance of the charter by its inhabitants, the holding of an election, or its organization thereunder. (People v. Levee District, 131 Cal. 30, 63 Pac. 676 ; People v. San Francisco, 36 Cal. 595, 601 ; People v. Hill, 7 Cal. 97, 103 ; San Francisco v. Canavan, 42 Cal. 541, 557 ; Thomason v. Ashworth, 73 Cal. 73, 14 Pac. 615 ; Southern Pacific R. R. Co. v. Orton, 32 Fed. 473 ; City of Clinton v. Cedar Rapids etc. R. R. Co., 24 Iowa, 456 ; Berlin v. Gorham, 34 N. H. 266 ; Cheaney v. Hooser, 9 B. Mon. 330 ; State v. Haines, 35 Or. 379, 58 Pac. 39 ; Wood v. Quimby, 20 R. I. 482, 40 Atl. 161 ; Smith v. Crutcher, 92 Ky. 586, 18 S. W. 521 ; Gorham v. Springfield, 21 Me. 58 ; People v. Wren, 5 Ill. 269 ; State v. Young, 3 Kan. 445.) Any failure to exercise the franchises and powers granted by the act of February 20, 1872, could not operate as a repeal or abrogation of the statute. (Swamp Land District v. Silver, 98 Cal. 51, 32 Pac. 866 ; Elliott v. Pardee, 149 Cal. 516, 86 Pac. 1087.)

Gibson, Trask, Dunn & Crutcher, O. P. Widaman, and Edward E. Bacon, fon Respondents.

HENSHAW, J.

This is a proceeding in

quo warranto

in which a judgment is sought declaring and adjudging that the defendant the

“City

of Wilmington,” and the other defendants, claiming to be officers of such city, are usurping and

[651]

exercising without authority of law the franchises and powers of a city of the sixth class, and enjoining them from asserting or attempting to exercise such franchises. A general demurrer to the complaint was sustained, and, plaintiff declining to amend, judgment was rendered for defendants. From this judgment plaintiff appeals.

It appears from the complaint that on the sixth day of November, 1905, certain persons presented to the board of supervisors of the county of Los Angeles a petition praying that a portion of said county within the boundaries defined in the petition be incorporated as a municipal corporation of the sixth class, with the name of the ‘1 City of Wilmington,” under an act of the legislature entitled “An act to provide for the organization, incorporation, and government of municipal corporations,” approved March 13, 1883. The petition complied with the act as to the number of

bona fide

residents within the boundaries of the proposed city, and also with respect to the number and character of the signers thereof. The board of supervisors granted the prayer of the petitioners and called for an election to be held on December 22, 1905, at which election a majority voted “for incorporation,” and the personal defendants were elected trustees of said proposed city; whereupon the board declared that the said city of Wilmington was duly organized and it is exercising corporate functions as such city.

The appellant does not object to the regularity of the proceedings leading to the alleged incorporation of said city, and does not attack the validity of the incorporation,1 except on this one ground,—namely, that most of the territory embraced in the petition was inclosed in a previously organized municipal corporation called the Town of Wilmington, and that the territory not embraced in such previously organized corporation does not contain five hundred residents—which number of residents is required by the act. It is therefore contended by appellant that the proceedings under which respondents are claiming to be a city are void, because there cannot be at the same time within the same territory two distinct municipal corporations exercising conflicting powers^ and because the Municipal Corporation Act expressly applies only to territory “not incorporated as a municipal corporation.” In support of this proposition the complaint avers that on February 20,

People Ex Rel. McConnell v. City of Wilmington

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Synopsis

HENSHAW, J.

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