County of Colusa v. Strain

Plaintiff County of Colusa and defendant Strain filed an “agreed ease’’ under the provisions of section 1138, Code of Civil Procedure. According to the

The trial court entered a judgment declaring: (1) that the ordinance is constitutional; (2) that a county permit is required without regard to interferences with the drainage or rights of neighboring owners; and (3) that upon application, an injunction would issue to restrain defendant from land leveling without the required permit. From this judgment defendant appeals.

The ordinance in question was adopted in December 1958. Following a statement of purpose, the ordinance requires a permit from the county road commissioner as a prerequisite to land leveling operations upon any land area in one ownership totaling 5 or more acres; or for excavation, dredging or piling which changes the natural course of any channel or waterway. Application for a permit must be accompanied by plans or maps showing beginning and finished elevations, drainage and watercourses, adjacent roads, highways, bridges, culverts and such other data as the road commissioner may require. In the case of land leveling, the maps must depict contours at intervals of 1 foot. A filing fee is imposed. Maps and other drawings “shall be subject to approval by the road commissioner.” The road commissioner shall within 30 days issue a permit, or a conditional permit, or shall deny the permit. The applicant may appeal to the board of supervisors for a review of the road commissioner’s action. Violators are guilty of a misdemeanor, punishable by fine or jail imprisonment or both. The ordinance had additional provisions which will be mentioned at a later point in this opinion.

Code of Civil Procedure section 1138 permits parties

Certainly the parties may not now seek a judicial declaration as to criminality of Mr. Strain’s past conduct, which became the subject of an indecisive criminal trial. (Cf. Orloff v. Metropolitan Trust Co., 17 Cal.2d 484 , 489 [ 110 P.2d 396 ].) It does appear, however, that Strain has additional land which he desires to level. The parties to this action thus seek a judicial declaration which, in advance of actual conduct, will determine whether or not that conduct will render a citizen amenable to criminal punishment under a county ordinance which he asserts to be unconstitutional.

Several California decisions evince a somewhat unreceptive attitude to this type of proceeding. (Brown v. Board of Police Comrs., 58 Cal.App.2d 473 , 479 [ 136 P.2d 617 ]; Hayden Plan v. Friedlander, 97 Cal.App. 12 , 14 [ 275 P. 253 ]; see also Adler v. City Council, 184 Cal.App.2d 763 , 775 [ 7 Cal.Rptr. 805 ].) There is substantial justification for declaratory proceedings to test constitutionality of police power regulations which threaten otherwise legitimate economic activity with the obloquy of criminal prosecution. (Borchard, Declaratory Judgments (2d ed.) pp. 1020-1026; Anderson, Declaratory Judgments (2d ed) pp. 1436-1437, 1471-1476; see Note 12 So.Cal.L.Rev. 319.) Several California decisions have sustained declaratory actions where a going business enterprise is faced with sanctions under a claimed violation of statute or ordinance. (LaFranchi v. City of Santa Rosa, 8 Cal.2d 331 [ 65 P.2d 1301 , 110 A.L.R. 639 ] ; Sandelin v. Collins, 1 Cal.2d 147 [ 33 P.2d 1009 , 93 A.L.R. 956 ]; Blatz Brewing Co. v. Collins, 69 Cal.App.2d 639 [ 160 P.2d 37 ].) It must be clear that the citizen intends to perform the disputed act. (Chas. L. Harney, Inc. v. Contractors’ State License Board, 39 Cal.2d 561 , 564 [ 247 P.2d 913 ].) Alternatively,

The primary contention on appeal is that the ordinance invades a field preempted by state law. Cited as evidences of legislative intent to exclude local regulations such as the present ordinance are Streets and Highways Code sections 720 to 730 and section 1487. The former sections prohibit various encroachments and impairments of state highways, provide for their abatement, and impose criminal penalties on violators. Section 725 in particular prohibits drainage of water from private lands onto state highways resulting in damage to the latter. Section 1487 is a parallel provision protecting county highways against drainage.

“ In determining whether the Legislature intended to occupy a particular field to the exclusion of all local regulation, we may look to the ‘whole purpose and scope of the legislative scheme’. ...” (In re Lane, 58 Cal.2d 99 , 102-103 [ 22 Cal.Rptr. 857 , 372 P.2d 897 ].) The Colusa County ordinance requires a permit for (1) land leveling on 5 acres or more, (2) changing the natural course of any channel or waterway. It applies to the leveling of land which does not border public roads as well as land leveling which creates no exterior changes in drainage. Either because of lack of proximity or because of lack of drainage involvement, a vast amount of land leveling is possible without the slightest danger of increasing the moisture content of public highways. The purpose of the ordinance, then, is much broader than the Streets and Highways Code provisions. The possibility that the ordinance may, on occasion, prevent what the state law prohibits, would result in invalidity only to the limited extent of the duplication. (Markus v. Justice’s Court, 117 Cal.App.2d 391 , 396 [ 255 P.2d 883 ] ; People v. Papayanis, 101 Cal.App.2d Supp. 918 , 922 [ 226 P.2d 91 ].) If flooding does occur, the holder of a county permit cannot regard it as a license to violate state law. In short, the statutes cited by defendant are of considerably narrower purpose and limited scope. They do not disclose nor do they justify an inference of legislative intent to exclude local regulation of land leveling.

Next, without citation of authority or discussion of principle, counsel for defendant argue that the ordinance unreasonably delegates to the county road commissioner arbitrary authority to grant or deny permits. It is elementary, of course, that a legislative body may delegate to an administrative officer discretion to carry out a declared policy according to a prescribed test or standard. (Franchise Tax Board v. Superior Court, 36 Cal.2d 538 , 548 [ 225 P.2d 905 ].) The ordinance does not repose unlimited or arbitrary powers in the county road commissioner. Section V requires that the application and plans be reviewed 11 to insure that the proposed work will not result in violating existing laws, will not jeopardize public or private property or improvements and will not endanger the public health, safety, convenience and general welfare.” Under section VI, an application contemplating changes in natural watercourses must provide for the maintenance of natural runoff to neighboring properties.

The standards guiding the road commissioner are sufficiently definite. He does not possess uncontrolled discretion. The ordinance does not violate constitutional inhibitions against unlimited delegations of authority. (In re Petersen, 51 Cal.2d 177 , 184-186 [ 331 P.2d 24 ]; Butterworth v. Boyd, 12 Cal.2d 140 , 148-149 [ 82 P.2d 434 , 126 A.L.R. 838 ].)

Section IV of the ordinance provides that maps and drawings submitted by the applicant “shall be subject to approval by the Road Commissioner.” Construed in relation to the entire enactment, this clause simply requires that maps and drawings shall adequately furnish the information specified by the ordinance. It does not permit arbitrary rejection.

It is urged that the ordinance unconstitutionally discriminates against owners of parcels of 5 acres or more, that owners of small parcels may also create damage by earth moving. Legislative classification is, of course, quite permissible

Finally, counsel for defendant contend that the ordinance is “unduly oppressive” and refer to “strangling invasions of the rights and liberties of the individual in this nation by all levels of government.” Epithets are no substitute for intelligent argument fortified by precedent. Apparently counsel are attempting to urge the notion that the objective of the ordinance is not one which may legitimately be sought under the county’s police power; or, in the alternative, that its regulatory provisions bear no reasonable relation to its objective. (See Allied Properties, Inc. v. Department of Alcoholic Beverage Control, supra, 53 Cal.2d at p. 146.)

Section I of the ordinance sets out the following declaration: “The Board of Supervisors does hereby find that certain regulations governing the levelling of land, the obstruction of natural drainage; and the control of irrigation and drainage water resulting therefrom are necessary for the protection of roads, highways, and other public properties and improvements pertaining to public health, safety, convenience and general welfare. ’ ’

The quoted provision is hardly a model of clarity. Expressing an initial purpose to protect public roads and public works, its language then expands to embrace sweeping notions of health, safety, convenience and general welfare; without, however, indicating whether these latter terms are limited to

Certainly the county may act to prevent shifting of soil or changes in drainage which encroach upon or adversely affect public improvements and utility lines. As we have noted, the ordinance may in some instances constitute an attempt to superimpose itself upon state laws protecting public highways; nevertheless, its possible invalidity in those situations does not result in invalidity in other situations. The permit requirement is much wider in scope, extending to leveling and earthmoving operations which do not affect public improvements. Aside from protection of public works, the ordinance has the apparent objective of guarding neighboring landowners against harmful effects of drainage changes.

Counties and cities have power to adopt police regulations to prevent nuisances, not only those which have been declared such but also those which may be anticipated. (In re Mathews, 191 Cal. 35 , 38-39 [ 214 P. 981 ]; Odd Fellows’ Cemetery Assn. v. City & County of San Francisco, 140 Cal. 226 , 232 [ 73 P. 987 ] ; In re Jones, 56 Cal.App.2d 658 , 663 [ 133 P.2d 418 ].) In several cases it has been said that a landowner may level his land for agricultural purposes, but he has the duty to make adequate provision for the natural flow of drainage waters, if any. (People v. Stowell, 139 Cal.App.2d 728 , 733 [ 294 P.2d 474 ]; Turner v. Hopper, 83 Cal.App.2d 215

The objectives being proper, we see no invalidity in the means by which the ordinance seeks to accomplish it. Defendant Strain seems troubled by the rather elaborate and perhaps expensive collection of data demanded upon application for a permit. Oppressive and confiscatory demands would be of interest. To say that the board of supervisors might have imposed less burdensome demands is to review the wisdom of the ordinance, a matter outside judicial scope.

The ordinance being valid, the land leveler is not privileged to make his own prediction as to the likelihood of harmful exterior effects. A permit is required without regard to anticipated drainage or harmful effects upon neighboring property.

We concur in all respects with the declarations of the judgment entered by the trial court, which is affirmed.

Pierce, P. J., and Schottky, J., concurred.

A petition for a rehearing was denied May 21, 1963, and appellant’s petition for a hearing by the Supreme Court was denied June 19, 1963.