Daily v. City of Pomona

ASHBURN, J. Appeal from judgment directing issuance of peremptory writ of mandate requiring appellant City of Pomona and its officers to terminate all proceedings for annexation to said city of inhabited territory designated as “Brea Canyon Addition.’’

The proceeding was initiated by resolution of January 3, 1961, which was followed by resolution 61-47 passed on March 6, 1961, fixing a time and place for protests by property owners. As later amended this resolution fixed June 5, 1961, at 8 p. m. as the time for hearing protests. Section 35120, Government Code, as it then stood, read in pertinent part as follows: “At any time not later than the hour set for hearing objections to the election, any owner of property within the territory may make a written protest against the election. If at the time set for hearing objections to the election, there are insufficient protests to terminate further proceedings, supplemental protests may be filed within 10 days thereafter. The protest shall state the name of the owner of the property affected and the street address or other description of the property sufficient to identify it on the last equalized assessment roll. ... As used in this article, ‘owner’ means the owner as shown on the last equalized assessment roll, or the person or persons entitled to be shown as owner on the current assessment roll who shall be deemed the owner, or where such land is subject to a recorded written agreement to buy, the purchaser under such agreement to buy shall be deemed the owner. ...” (Stats. 1959, ch. 1867, p. 4425.) Section 35121 then provided: “At the time set for hearing protests, or to which the hearing may have been continued, the city legislative body shall hear and pass upon all protests so made. If it finds that protest is made by the owners of one-half of the value of the territory proposed to be annexed as shown by the [639]last equalized assessment roll, or if protest is made by public and private owners equal to one-half of the value of the territory, further proceedings shall not be taken. ...” (Id. pp. 4425-4426.)

The said meeting for hearing protests was held at the specified time but prior thereto written protests had been filed by owners of more than half of the value of territory within said annexation as shown by the last equalized assessment roll of Los Angeles County; they represented over 66 per cent of the assessed value of the said territory. The hearing was continued to June 12, 1961, and then further continued to June 19, 1961. At the meeting on the 19th two property owners in the annexation area who had previously filed protests undertook to withdraw the same and the city council purported to permit such withdrawals and to determine that such withdrawals resulted in the total protests amounting to less than half of the value of the territory within the annexation area. The council then adopted a motion terminating the protest hearing and overruling protests; also introduced was Ordinance No. 1747 calling a special election pertaining to said annexation; it was adopted at the council meeting of June 26, 1961. On August 14, 1961, Weldon J. Daily, respondent herein, filed a petition in the superior court seeking a writ of mandate requiring discontinuance of said annexation proceedings. Issuance of same having been ordered by the judgment entered below, this appeal followed.