Yribarne v. County of San Bernardino (218 Cal. App. 2d 369, 1963)

CONLEY, J.

The plaintiff, as a taxpayer and property owner within the boundaries of the proposed district, brought suit against the County of San Bernardino and the members of its board of supervisors to restrain them from calling an election or acting further in response to a petition for the organization of the “Big Bear Municipal Water District.’’ In his complaint the plaintiff alleges that the Municipal Water District Act of 1911, hereinafter referred to as the Act (Stats 1911, ch. 671, p. 1290, as amended; Deering’s “Water—Uncodified Acts, ’’ 1962 (Pt. One) Act 5243; West’s Wat. Code Ann.—App., § 20-1 et seq.) is unconstitutional and that the plaintiff would suffer irreparable injury and damage if the defendants should call the election; the points made with respect to its claimed uneonstitutionality are: (1) that “ [I]t authorizes the inclusion of plaintiff’s properties within the proposed district without opportunity for a hearing and determination that it will be benefited thereby,” and (2) that the act involves “. . . an unconstitutional delegation of the legislative power to determine the boundaries of a municipal water district to private persons of unknown identity”; plaintiff invokes the provisions of article I, section 14, of the Constitution of the State of California and the Fourteenth Amendment to the Constitution of the United States.

The court granted a preliminary injunction, which is still in effect, but specifically stated in the order: "This Court is not at this time determining the constitutionality of the Municipal Water District Act of 1911, (Stats. 1911, p. 1290), as amended. ’ ’

Permission was granted for the filing of an answer in intervention by the members of the committee of citizens which activated the preliminary moves looking to the foundation of the new district: Bud Fuller, Karl Agajanian, Fred Schnabel, John Spencer, Chester Jantzen and D. L. Miles.

Before the case came on for hearing, the defendants and interveners made an application for an order that the court determine as the first issue at the trial whether the Municipal Water District Act of 1911, as amended, is constitutional. The court quite properly acceded to the request, for the plaintiff would have no right to a recovery unless he prevailed on that issue; it is not claimed that the proponents have failed to comply with any of the preliminary procedural requirements prescribed by the Act; all that remains to be done is for the Board of Supervisors of San Bernardino County to set a date and make arrangements for the election.

Besides granting the motion to try first the issue of the constitutionality of the Act, the court permitted counsel for the plaintiff, in the guise of an offer of proof, to assure the court that if he were permitted to do so, he could adduce evidence to support all of the factual allegations of the complaint. Counsel for the defendants and interveners also made it clear that they believed that if the case were to be completely tried, the factual issues undetermined by a ruling on the constitutionality of the Act would be resolved in favor of defendants. Actually, these clashing claims as to what the proof might show on the other issues, or the ruling of the trial judge upholding an objection to receiving any evidence, are not essential to the determination of this appeal. If the ruling of the trial court that the Act is constitutional is correct, that will conclude the case; if the Act is unconstitutional the suit will be remanded for trial on all tendered issues.

Over 50 years ago, the California Supreme Court in Henshaw v. Foster, 176 Cal. 507 [169 P. 82], held that the Act is constitutional. It was then under comprehensive attack under both the United States and the California Constitutions, and the decision that it did not offend any provision of either Constitution was flatly adverse to the position here'taken by the appellant. In the intervening lapse of time, the Supreme Court and District Courts of Appeal in numerous instances and without exception have recognized the existence and binding force of the Act, including Marin Mun. Water Dist. v. Chenu, 188 Cal. 734 [207 P. 251]; Jacobsen v. Superior Court, 192 Cal. 319 [219 P. 986, 29 A.L.R. 1399]; Haight v. Marin Mun. Water Dist., 208 Cal. 753 [284 P. 926]; Morrison v. Smith Bros., Inc., 211 Cal. 36 [293 P. 53]; State of California v. Marin Mun. Water Dist., 17 Cal.2d 699 [111 P.2d 651]; County of Marin v. Superior Court of Marin County, 53 Cal.2d 633 [2 Cal.Rptr. 758, 349 P.2d 526]; Wilson v. City of San Bernardino, 186 Cal.App.2d 603 [9 Cal.Rptr. 431]; Hidden Valley Mun. Water Dist. v. Calleguas Mun. Water Dist., 197 Cal.App.2d 411 [17 Cal.Rptr. 416]; City of San Diego v. Otay Mun. Water Dist., 200 Cal.App.2d 672 [19 Cal.Rptr. 595], While all of these cases do not in so many words reaffirm the constitutionality of the Act, their citation of the Henshaw case, supra, assumes that the water districts organized under the Act are constitutional and legally existing.

The holding in the Henshaw case is binding in all strictness upon us as an intermediate appellate court. (Auto Equity Sales, Inc. v. Superior Court, 57 Cal.2d 450, 455 [20 Cal.Rptr. 321, 369 P.2d 937].) And, in fact, we have held in Wilson v. City of San Bernardino, supra, 186 Cal.App.2d, 603, that the Act is constitutional.

The lapse of over 50 years since the Henshaw decision, the specific and comprehensive consideration of all questions of constitutionality contained in that opinion, the subsequent formation and functioning of 48 municipal water districts under its provisions, all lead to the inevitable conclusion that the Act must again be upheld. Stare decisis requires an' affirmance of the judgment.

In People v. Hayne, 83 Cal. 111, 116 [23 P. 1, 17 Am.St.Rep. 217, 7 L.R.A. 348], in upholding the constitutionality of a statute providing for the appointment of court commis-'. sioners, .the Supreme Court said:

“To reverse a construction which must of necessity have been given tp these statutes before or' at the time of the appointment of these commissioners, and which has been acquiesced in for so long a time, and thereby produce such a result as would -follow such reversal, is a thing which ought not to be done by any court, unless there is found the gravest necessity for doing it. If the question of the constitutionality of the act was even doubtful, after such a lapse of time and such a practice under the act, the doubt ought to be resolved in favor of its validity, and the case be left to rest on the doctrine of stare decisis.”

(See also Kleiber v. City & County of San Francisco, 18 Cal.2d 718, 725 [117 P.2d 657]; Miller & Lux v. Enterprise etc. Co., 142 Cal. 208, 215 [75 P. 770, 100 Am.St.Rep. 115]; City of Los Angeles v. Gager, 10 Cal.App. 378, 381 [102 P. 17]; Seale v. Mitchell, 5 Cal. 401.)

We would be fully justified to stop here and affirm the judgment. However, we shall supplement the foregoing observations by a concise discussion of the constitutional questions raised by the appellant.

First, he contends that the Act is unconstitutional because there is no provision made in it for a preliminary determination by the board of supervisors as to whether the real property of the plaintiff will be benefited by its inclusion within the exterior boundaries of the proposed district.

In view of the plenitude of the power of the Legislature, restricted only by the provisions of our state and federal Constitutions, it is not to be wondered that there exists considerable variety in the forms, and methods of creation, of the districts authorized by our laws. Certain types of districts require a pre-election hearing and decision by the supervisors of a county in which the proposed district is to be located as to whether included lands will be benefited. Irrigation districts and reclamation districts are among those which so require; in such circumstances in order tó comply with the basic provisions of the applicable statutes, such preliminary hearings must, of course, be held. (The Wright Act (Stats. 1887, ch. 4, p. 29); In re Madera Irr. Dist., 92 Cal. 296 [28 P. 272, 675, 27 Am.St.Rep. 106, 14 L.R.A. 755]); Fallbrook Irr. Dist. v. Bradley, 164 U.S. 112 [17 S.Ct. 56, 41 L.Ed. 369]; Wat. Code, Reclamation Districts, div. 15.)

Other districts provided for by our laws are limited in function to the making of specific improvements in a given area when the mere inclusion of the land of people living within the proposed district would subject them to the levy of assessments to pay for the work to be undertaken in accordance with benefits actually received by them, This type of organization, generally known as an assessment district, requires as an essential prerequisite to its formation a hearing on the question whether the lands included within its exterior boundaries would be benefited by the formation of the district. (For example, see The Improvement Act of 1911, Sts. & Hy. Code, div. 7; Highway Lighting District Act, Sts. & Hy. Code, div. 14; Storm Drain Maintenance District Act, Deering’s “Water—Uncodified Acts,” 1962 (Pt. One) Act 2208; West’s Wat. Code Ann.—App., § 42-1 et seq.; Pest Abatement District, Health & Saf. Code, div. 3.)

But the Legislature has the rightful power also by general law to authorize the formation of a district such as is proposed here without any hearing preliminary to the election as to whether the land included will be benefited. This type of district has been termed a ■ qaasi-municipal district. It is formed for the purpose of supplying general municipal needs, although these needs may be specific in their delineated character; the creation of this type of district is not for the purpose of making a specific and narrowly limited improvement, but is comparable to the organization of a city; whatever assessments are made are, like taxes, general in nature and based on the valuation of the several parcels of land within the district. Not only does this classification apply to municipal water districts, but to many other districts whose purposes and general powers are defined by statute pursuant to article XI, section 19, of our state Constitution.

The nature of the powers conferred upon municipal and gttcm-municipal corporations and the territory included within such organizations are political questions to be determined in the discretion of the state, subject only to constitutional limitations; the solution of such questions rests with the Legislature.

In Morrison v. Smith Bros., Inc., supra, 211 Cal. 36, at page 44, this type of district is thus characterized by the Supreme Court:

“Thus, from 1911 to date, there has been developed a new type of public corporation, resembling in many respects municipal corporations proper, and radically different in nature "from irrigation and reclamation districts. The case of Henshaw v. Foster, supra [176 Cal. 507] clearly recognized the distinction, holding that such qM