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Docket Number

Docket No. 17186.

Attorney(S)

John W. Scanlon, City Attorney, and Robert T. Anderson for Appellants. Rutherford, Jacobs, Cavalero Dietrich, D.R. Jacobs and Mark S. Bray for Respondents.

Judges

DRAPER, J.

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Case Summary

Factual and Procedural Background

This appeal arises from annexation proceedings by the City of Hayward to include territory designated as "Treeview Annex." The annexation was initiated under the Annexation Act of 1913 (Gov. Code, §§ 35100-35158). After a protest hearing an election was called, and prior to the election petitioners filed a petition for writs of mandamus and of review seeking to terminate the annexation. Following trial, the superior court found the annexation proceedings invalid on the ground that substantial, clearly separable and distinguishable portions of the proposed annexation were uninhabited and thus could only be annexed under the Annexation of Uninhabited Territory Act of 1939 (Gov. Code, §§ 35300-35326). The superior court issued a peremptory writ terminating the annexation, and the city council and officers appealed. The Court of Appeal affirmed the judgment.

Legal Issues Presented

Whether proceedings under the Annexation Act of 1913 are void if they seek annexation of a substantial, clearly separable and distinguishable uninhabited portion of the territory proposed for annexation.
Whether the trial court's findings that substantial separable and distinguishable uninhabited areas existed within the proposed annexation (Treeview Annex) are supported by substantial evidence.
Whether Government Code section 35303 (defining "uninhabited" for purposes of the 1939 Act as territory having fewer than twelve registered voters) applies to determine whether territory is uninhabited for purposes of a proceeding under the 1913 Act.
Whether the determination of the extent of the area to be annexed is a nonjusticiable political question or a judicial one when statutory limitations (such as the status of uninhabited territory) are asserted.

Arguments of the Parties

Appellants' Arguments

The extent of the area to be annexed is a political question and not subject to judicial determination; therefore the court should not invalidate the council's choice of annexation boundaries.
The evidence is insufficient to support the trial court's findings that substantial, separate and distinguishable uninhabited areas exist within the proposed annexation; appellate review should reach its own conclusion on the evidence.
Government Code section 35303, which defines uninhabited territory as that having fewer than twelve registered voters, applies only "for purposes of this article" (the 1939 Act) and therefore does not govern proceedings under the 1913 Act; the two acts are separate and section 35303 should not restrict the 1913 Act.
Government Code section 35101 emphasizes that proceedings under article 2 (1913 Act) are governed by article 1 and article 2 alone, supporting the argument that the definitions and procedures of the 1939 Act do not limit the 1913 Act.
Appellants disputed the trial court's factual finding that the land between the Decoto and Newark rights of way was uninhabited; specifically they contended that certain persons (George W. and Edith D. Loorz, and Daniel Riley) should be counted as residents or registered voters within that area.

The opinion does not contain a similarly detailed, separate exposition of respondents' legal arguments; respondents sought mandamus relief to terminate the annexation and denied factual contentions advanced by appellants as noted above.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Johnson v. City of San Pablo, 132 Cal.App.2d 447 (283 P.2d 57)	The 1913 Act is void as to annexation of substantial uninhabited areas that are clearly separable and distinguishable from inhabited portions; also cited for standard that appellate review asks only whether there is substantial evidence to sustain trial court findings.	The court relied on Johnson as controlling authority for the separability rule and for describing the applicable substantial-evidence standard of review; the court found Johnson supportive and controlling of its conclusion here.
People v. City of Monterey Park, 40 Cal.App. 715 (181 P. 825)	Supports the rule that substantial separable uninhabited areas cannot be annexed under the act applicable to inhabited territory.	Used as supporting authority for the proposition that the 1913 Act cannot validly include substantial separable uninhabited portions.
Capuchino Land Co. v. Board of Trustees, 34 Cal.App. 239 (167 P. 178)	Historical authority (under the 1889 act) holding that substantial uninhabited areas could not be annexed under a statute intended for inhabited territory; supports separability principle.	Cited to show the long-standing recognition of the separability rule and to support the conclusion that the 1913 Act does not apply to substantial uninhabited portions.
Rogers v. Board of Directors, 218 Cal. 221 (22 P.2d 509)	Establishes the exception that parcels of uninhabited land may be included when the annexation area as a whole can fairly be said to be inhabited.	Quoted to emphasize the limited exception to the separability rule: inclusion of uninhabited parcels is permissible only when the overall annexation area is fairly inhabited.
People v. Town of Ontario, 148 Cal. 625 (84 P. 205)	Same principle as Rogers — that small uninhabited parcels may be included if the area as a whole is inhabited.	Used to illustrate the recognized exception to the separability rule; court contrasted that exception with the facts here where uninhabited portions were substantial and separable.
People v. City of Los Angeles, 154 Cal. 220 (97 P. 311)	Recognition that the extent of area to be annexed is generally a political question.	Cited to acknowledge the political nature of boundary selection while holding that such political discretion cannot override statutory limits; the court reaffirmed judicial review where statutory requirements are asserted to be violated.
Peart v. Board of Supervisors, 145 Cal.App.2d 8 (301 P.2d 874)	Also supports the proposition that extent of annexation is a political question.	Cited alongside People v. City of Los Angeles to show that political discretion exists but does not permit transgression of statutory restrictions.
People v. City of Richmond, 141 Cal.App.2d 107 (296 P.2d 351)	Stands for the rule that registration as well as residence must be within the annexation area to count for purposes of the uninhabited-territory test.	The court applied this rule to exclude Mr. and Mrs. Loorz from the count of registered voters in the separable portion because they were registered in the City of Alameda.
People v. City of Long Beach, 155 Cal. 604 (102 P. 664)	Supports that residence for annexation-related questions is a question of fact.	Invoked to justify deferring to the trial court's factual determination on residence when conflicting evidence was presented regarding where persons actually resided.

Court's Reasoning and Analysis

The court's analysis proceeded in several discrete steps grounded in statutory construction, precedent, and the trial court's factual findings:

The court reaffirmed the established rule (citing Johnson, Capuchino, Monterey Park) that proceedings under the 1913 Act are void if they attempt to annex a substantial area that is uninhabited and is clearly separable and distinguishable from inhabited portions. The court also recognized the limited exception (Rogers; Town of Ontario) permitting inclusion of uninhabited parcels when the annexation area as a whole is fairly inhabited.
The court rejected appellants' contention that the extent of the area to be annexed is an exclusively political question beyond judicial review. While acknowledging the political character of boundary selection, the court held that political discretion cannot extend the scope of the statute; whether uninhabited territory is improperly included is a question for the courts (citing Capuchino).
Concerning the standard of appellate review, the court applied the general substantial-evidence standard: it would determine only whether there was substantial evidence to sustain the trial court's findings (citing Johnson).
The court summarized the trial evidence and findings regarding the physical and human geography of Treeview Annex:
- The annexation area (2,383 acres) was traversed by three north-south railroad rights of way (Decoto and Newark among them), which were raised above surrounding land and constituted visible barriers.
- East of the Decoto rights of way: 396 acres, residential in character (including a tract of more than 600 homes and a golf course) — found to be residential and inhabited; these findings were undisputed.
- Between the Decoto and Newark rights of way: 1,721 acres, predominantly industrial and agricultural, with few roads crossing the Decoto right of way; the parties agreed on nine registered voters and twelve non-registered persons living there, with a dispute over whether three additional persons should be counted as registered voters in that area.
- West of the Newark right of way: 266 acres, marsh and overflow land used for duck hunting and seasonal agriculture — no one lived in that section.
- The court accepted the trial court's findings that the area west of the Decoto rights of way (the middle and western sections combined) differed materially in use and nature from the residential lands east of the Decoto tracks.
The court treated the raised railroad rights of way as a relevant, visible dividing line that could be considered, together with other evidence, to determine separability and distinguishability. It observed that Government Code section 35105 permits contiguous inhabited territory to be annexed as one parcel despite division by a right of way, but emphasized that such barriers may still be considered in assessing separability when one side is found uninhabited.
Quantitatively, the court noted that the areas west of the Decoto tracks (the middle and western sections) constituted a substantial proportion of the whole: 1,721 acres (72.2%) between Decoto and Newark and 266 acres (11.2%) west of Newark, totaling 83.4% of the proposed annexation — clearly "substantial" portions.
On the question whether the middle section (between Decoto and Newark) was "uninhabited" within the meaning of the 1939 Act (Gov. Code, § 35303 defines uninhabited as "less than twelve registered voters reside within it"), the trial court found that Mr. and Mrs. Loorz were not inhabitants for purposes of that definition because they were registered voters in the City of Alameda. The court relied on People v. City of Richmond for the proposition that registration as well as residence must be within the annexation area. The trial court's factual determination on residence was sustained under the deferential standard.
The court addressed appellants' contention that section 35303 applies only "for purposes of this article" (the 1939 Act) and thus should not constrain the operation of the 1913 Act. After reviewing the legislative history and structure, the court concluded the two acts have long been treated as mutually exclusive in operation. It reasoned that a territory cannot be both "inhabited" and "uninhabited" simultaneously and that the statutory scheme demonstrates the Legislature provided distinct procedures for uninhabited territory under the 1939 Act; this exclusivity means substantial uninhabited areas separable from inhabited portions cannot be included in 1913 Act annexations.
The court further relied on section 35006 (as adopted in 1953) showing that the Legislature specifically addressed overlaps between other articles (e.g., article 3 and article 5) but did not provide for overlapping operation between the 1913 and 1939 acts. The court treated the legislative silence as evidence that both acts were not intended to apply to the same territory when the uninhabited-territory criteria are met.
The court contrasted procedural differences between the acts (e.g., protest by owners of a majority of parcels and voter determination under the 1913 Act vs. protest by owners of half the value under the 1939 Act) to support the view that the statutes were not meant to operate concurrently with respect to the same land.
Having found that substantial separable uninhabited areas were properly identified by the trial court and that the 1913 Act was therefore inapplicable to the entire proposed annexation as conducted, the court concluded that the trial court correctly issued the peremptory writ terminating the annexation proceedings.

Holding and Implications

Holding: The Court of Appeal affirmed the superior court's judgment and its issuance of a peremptory writ terminating the Treeview annexation proceedings. The core ruling may be stated as: Affirmed; the annexation proceedings under the 1913 Act were invalid because they sought to include substantial, clearly separable and distinguishable uninhabited territory that could only be annexed under the 1939 Act.

Implications:

Direct effect on the parties: The annexation proceedings conducted under the 1913 Act were terminated by writ of mandate; the city's attempted annexation of the Treeview area is invalidated as conducted.
The court reaffirmed existing precedent limiting the application of the 1913 Act where substantial separable uninhabited portions are included, and it treated Johnson v. City of San Pablo and the other cited authorities as controlling. The opinion does not purport to establish a new rule of law but applies and reiterates established statutory-construction and separability principles to the facts of this annexation.

Disposition: Judgment of the superior court affirmed. (Kaufman, P.J., and Dooling, J., concurred.)

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UNITED STATES PIPE AND FOUNDRY COMPANY (a Corporation) et al., Respondents, v. THE CITY COUNCIL OF THE CITY OF HAYWARD et al., Appellants.

DRAPER, J.

This appeal involves the validity of proceedings by which the city of Hayward sought to annex territory designated as Treeview Annex. The annexation proceedings were commenced under the Annexation Act of 1913 (Gov. Code, §§ 35100-35158). After protest hearing an election was called. Before the election, a petition for writs of mandamus and of review was filed. After trial, the annexation proceedings were found invalid, and peremptory writ of mandate issued, terminating the annexation. Council and city appeal.

The basis of the trial court's action was its determination that substantial and clearly separable and distinguishable portions of the territory proposed for annexation were uninhabited, and thus subject to annexation only under the Annexation of Uninhabited Territory Act of 1939 (Gov. Code, §§ 35300-35326).

[1] A proceeding under the 1913 Act is void if it seeks annexation of a substantial area which is uninhabited and is clearly separable and distinguishable from the inhabited portion of the lands sought to be annexed ( Johnson v. City of San Pablo, 132 Cal.App.2d 447 [ 283 P.2d 57]; People v. City of Monterey Park, 40 Cal.App. 715 [ 181 P. 825]; Capuchino Land Co. v. Board of Trustees, 34 Cal.App. 239 [ 167 P. 178] [the last was under the act of 1889]). [2] Of course, this rule does not bar the inclusion in such a proceeding of parcels of uninhabited land when the annexation area as a whole can fairly be said to be inhabited ( Rogers v. Board of Directors, 218 Cal. 221 [ 22 P.2d 509]; People v. Town of Ontario, 148 Cal. 625 [ 84 P. 205]). Any other construction would wholly negate the use of the 1913 Act in the great majority of cases. However, where the uninhabited area is a substantial portion of the whole, and is separable and distinguishable from the inhabited area, the rule clearly applies.

[3] Appellants argue that "the extent of the area to be annexed is a political question and not a matter for judicial determination." This, of course, is true ( People v. City of Los Angeles, 154 Cal. 220 [ 97 P. 311]; Peart v. Board of Supervisors, 145 Cal.App.2d 8 [ 301 P.2d 874]). But this political discretion cannot extend the scope of the statute. Whether uninhabited territory is improperly included in the annexation is a question for the courts ( Capuchino Land Co. v. Board of Trustees, supra, 34 Cal.App. 239).

[4] Appellants next contend that the evidence is insufficient to support the findings that substantial, separate and distinguishable uninhabited areas exist within the proposed annexation. Appellants suggest that this court must review the evidence and reach its own conclusion thereon, independent of the findings of the trial court. No authority is cited for this contention and it is clear that the general rule applies here. The question before us is whether there is substantial evidence to sustain the findings of the trial court ( Johnson v. City of San Pablo, supra, 132 Cal.App.2d 447, 452). We therefore review the evidence only to determine whether it meets this test.

[5a] Treeview Annex lies southerly of Hayward. Three railroad lines traverse the area in a general north-south direction. Toward the easterly side, closely adjoining lines of the Southern Pacific and Western Pacific are generally parallel. The westernmost of these lines is referred to as the Decoto rights of way. In the western section of the area is another line of the Southern Pacific, here referred to as the Newark right of way. Both rights of way are built upon fill which raises them above the level of the adjoining land. The Decoto rights of way are as much as 25 feet above the lands on either side. The fill for the Newark right of way through portions of this annex is about 50 feet wide at the base and 16 feet at track level, with a ditch below ground level on each side. The surface of this right of way is as much as 8 feet above the land on either side.

East of the Decoto rights of way, the annexation area contains 396 acres. This area includes the Hillview Crest tract of more than 600 homes, together with a golf course.

Between the Decoto and Newark rights of way, the annexation area contains 1,721 acres. This area includes industrial plants of Holly Sugar Corporation, American Pipe and Construction Company and United States Pipe and Foundry Company. Land not occupied by these plants is used principally for agricultural purposes. But few roads cross the Decoto rights of way to connect this area with the easterly portion of the annexed land. The parties agree that 9 registered voters and 12 persons who were not registered voters lived in this area. Appellants contend, and respondents deny, that three others, George W. and Edith D. Loorz and Daniel Riley, were registered voters living within this area.

West of the Newark right of way lie 266 acres. This area contains three ponds maintained by duck hunting clubs. There was testimony that the remaining land in this section is used largely for raising of duck feed or is uncultivated. Some is used for agriculture and pasture, but the land is frequently flooded in the rainy season and is poor land. Only one road, not open to the public, connects this section with the rest of the annex. No one lives in this section.

Zoning of the area east of the Decoto rights of way is residential. The golf course is allowed in an R-1 zone with a use permit, and is supplemental to the residential use of the area. The bulk of the area to the west is differently zoned. It includes substantial heavy industrial plants, together with farm lands. The plant areas are zoned for industrial use. Most of the remainder is in a "U" zone which permits uses which are only slightly restricted. Its only residences, aside from that of the caretaker for a water works, are farm homes or agricultural labor camps. In appearance, as shown by photographs in evidence, as well as in use, it is distinguishable from the lands east of the Decoto rights of way.

The trial court found the area east of the Decoto rights of way to be residential and inhabited. These findings are not disputed. The area between the Decoto and Newark rights of way was found to be predominantly agricultural and industrial in use. The land west of the Newark right of way was found to be marsh and overflow land, predominantly used as a duck-hunting area. These findings are sustained by the evidence. Additionally, it was found that the entire area west of the Decoto rights of way, considered as a unit, differed materially in use and nature from that to the east.

[6] One element of the factors of separability and distinguishability, as indicated by the decisions cited above, appears to be a dividing line clear enough to constitute a basis for distinguishing with reasonable clarity and certainty between the inhabited and uninhabited areas of the annexation territory. Such lines exist here in the railroad rights of way. Appellant quotes Government Code, section 35105: "Contiguous inhabited territory may be annexed as one parcel although divided by a road, stream, or other natural or artificial barrier or right of way." Concededly, the railroad rights of way do not, of themselves, bar inclusion of lands on both sides in a single annexation. [7] However, these raised rights of way, constituting visible barriers between sections of the proposed annexation, can be considered with all the other evidence upon the issues of separability and distinguishability. They were so considered in Johnson v. City of San Pablo, supra, 132 Cal.App.2d 447, and in Capuchino Land Co. v. Board of Trustees, supra, 34 Cal.App. 239. Further, the code section refers only to contiguous inhabited territory. [5b] Here, the finding is that the area on one side of the right of way was uninhabited. These rights of way divide the annexation area into three sections, and the principal line, that of the Decoto rights of way, can be regarded as dividing the whole area into two portions.

There can be little question that the areas found to be separable and distinguishable are also substantial portions of the whole. The entire annexation area consists of 2,383 acres. The area between the Decoto and Newark rights of way contains 1,721 acres, or 72.2 per cent of the whole, while 266 acres, 11.2 per cent of the whole, lie west of the Newark tracks. Combined, the areas west of the Decoto tracks constitute 83.4 per cent of the total proposed annexation.

Appellants also attack the finding and conclusion that the land between the Decoto and Newark rights of way was uninhabited. [8, 9] Under the 1939 Act, territory is deemed uninhabited if "less than twelve registered voters reside within it" (Gov. Code, § 35303). The trial court found Mr. and Mrs. Loorz not to be inhabitants within this definition. On and for some time before the date here critical, they had occupied a home on his father's land within the annexation area. They were registered voters in the city of Alameda. Registration, as well as residence, must be within the annexation area to meet the code requirements ( People v. City of Richmond, 141 Cal.App.2d 107 [ 296 P.2d 351]). Thus, Mr. and Mrs. Loorz are not to be counted in determining whether the area is inhabited. There was evidence that they stayed rather frequently at the Alameda address, kept many of their possessions there, and used that address for vehicle registration, drivers' licenses, and Mr. Loorz' draft registration. Whether they resided in the area was a question of fact ( People v. City of Richmond, supra; People v. City of Long Beach, 155 Cal. 604 [ 102 P. 664]). The trial court's finding upon conflicting evidence must be sustained. It is unnecessary for us to consider the questions raised as to the residence of Mr. Riley, whose property was divided by the boundary line of the proposed annexation. Even if he were held to reside in the area, there still would be fewer than 12 residents in this separable portion of the annexation area.

Appellants argue that Government Code, section 35303, supra, which defines uninhabited territory as that having less than 12 registered voters, has no application to this proceeding because it specifically applies "For purposes of this article." This section appears in article 5 (the Annexation of Uninhabited Territory Act of 1939). Thus, say appellants, it can have no application to proceedings under the 1913 Act, which is found in article 2. They say that originally the Uninhabited Territory Act could not apply if there were even one resident in the annexation area. Thus, the argument runs, the purpose of section 35303 was to broaden the application of the Uninhabited Territory Act, without in any way restricting application of the 1913 Act. Appellants also rely upon section 35101, which is a part of article 2 (the 1913 Act). This provides that "When any proceedings for annexation . . . are commenced pursuant to this article, the provisions of Article 1 of this chapter and of this article alone apply." This, they say, emphasizes that section 35303, in article 5, cannot restrict the operation of the 1913 Act.

We cannot accept this contention. For many years, the mutual exclusiveness of the two acts has been recognized. The Act of 1913 stems from that of 1889 (Stats. 1889, p. 358). The present provisions of the 1939 Act are adapted in large part from the Act of 1899 (Stats. 1899, p. 37). The Act of 1889, like the present statute, did not in terms require that an area be inhabited to be subject to annexation under its provisions. Nevertheless, it was held as early as 1917 that substantial uninhabited areas could not be annexed under the 1889 Act ( Capuchino Land Co. v. Board of Trustees, supra, 34 Cal.App. 239). It is apparent that a given territory cannot be both inhabited and uninhabited at the same time. [10] Thus, statutory provision for a distinct procedure for annexation of uninhabited territory excludes inhabited territory from operation of the same statute. It is this clear exclusion which has given rise to the rule that substantial uninhabited areas which are severable and distinguishable from the inhabited portions of an annexation area cannot be included in an attempted annexation of inhabited territory. [11] The limitation of section 35303 to the "purposes of this article" makes it no less a limitation upon the 1913 Act. [12] The suggestion that section 35101 leaves the 1913 act applicable to territory which is "uninhabited" within the definition of the 1939 Act is equally unsound. Under that section, articles 1 and 2 are specifically applicable. Included in article 1 is section 35006, which, as adopted in 1953 and in effect at the critical date here, provided that "When uninhabited territory . . . is annexed, proceedings may be had under Article 3 or Article 5 of this chapter." Thus, the very section upon which appellants rely does not exclude, but specifically refers to, section 35303, as a part of article 5.

In another respect, section 35006 tends to refute appellants' contention. It is significant that the Legislature deemed it necessary to provide specifically for the overlapping operation of article 3 (annexation of territory owned by a city or contiguous school district) and the 1939 Act, yet wholly failed to provide for such operation of the 1913 and 1939 Acts. We find it difficult to conclude that the Legislature intended to make both acts applicable to territory having from 1 to 11 inhabitants, as appellants argue. In the light of the legislative abstention from including such provision when adding section 35006 in 1953, it would be judicial legislation for us now to insert such language in the guise of construction.

The two acts differ substantially in their application. The 1913 Act provides for effective protest by owners of a majority of parcels within the area, and for determination whether to annex by vote of the qualified electors in the area. Under the 1939 Act, protest by owners of half the value of the territory terminates the proceedings. [13] Obviously, the two acts differ substantially, and are not intended to apply to the same territory at the same time. In the case at bar, protestants owned more than half the value and area of the uninhabited territories, but fewer than half of the parcels in the entire annexation area.

Appellants concede that the decision in Johnson v. City of San Pablo, supra, 132 Cal.App.2d 447, is implicitly contrary to their argument. They suggest that the point is not specifically discussed in that opinion, and thus is but "assumption" upon that issue. In the light of the above discussion, and the decisions in People v. City of Monterey Park, supra, 40 Cal.App. 715, and Capuchino Land Co. v. Board of Trustees, supra, 34 Cal.App. 239, we consider the conclusion in the Johnson case to be sound and controlling.

Judgment affirmed.

Kaufman, P.J., and Dooling, J., concurred.

U.S. PIPE FOUNDRY CO. v. CITY COUNCIL