B. G. JOHNSTON, Respondent, v. BOARD OF SUPERVISORS OF MARIN COUNTY et al., Defendants and Appellants; VITO B. ALIOTO, Intervener and Appellant, 31 Cal. 2d 66

TRAYNOR, J. This action was brought by a resident and taxpayer of Marin County to restrain the members of the board of supervisors of that county from issuing to the Benicia Food Products Company a use permit to construct and operate a fish cannery and reduction plant within an unincorporated part of the county. The plaintiff also sought an injunction against the members of the board to restrain them from adopting an ordinance that allegedly authorized the construction and maintenance of the proposed plant in this area.

Defendants, the members of the board of supervisors, and interveners, Benicia Food Products Company, and Vito B. Alioto, appeal from an order pendente lite enjoining the issuance of the use permit and the enactment of the ordinance. The injunction was issued on the basis of plaintiff’s complaint, the substance of which follows. The Benicia Food Products Company filed an application with the Marin County Planning Commission for a permit to construct and operate a fish cannery and reduction plant in an unincorporated part of Marin County, located about one mile from plaintiff’s residence.

Plaintiff alleges that the operation of the proposed plant in that area would pollute the air with offensive odors and contaminate the waters surrounding plaintiff’s property. Although the proposed site for the plant is in an area zoned for heavy industry, the local zoning ordinance (Ordinance 264 of Marin County) provides that a use permit must be obtained before any fish reduction plant may be constructed or operated in such area. The commission held a hearing on the application for a use permit, and Mrs. Natalie Holly, wife of R. A.

Thompson, a member of the Marin County Board of Supervisors, appeared as attorney for the applicant. After the hearing, the commission voted to deny the application and transmitted its report to the board of supervisors. The report was considered by the board of supervisors at a public meeting, at which Mrs. Holly again represented the applicant.

At this meeting, Supervisor Thompson submitted a proposed ordinance entitled, “An ordinance . . . regulating the establishment, maintenance and operation of reduction plants . . . and repealing all conflicting ordinances and parts of ordinances.” Without submitting the proposed ordinance to the Marin County Planning Commission, the board then voted to adopt it by a vote of three to two. Supervisor Thompson then made a motion that the board reject the report of the planning commission and grant the application of the Benicia Food Products Company for a use permit.

This motion was likewise carried by a vote of three to two. A supervisor voting against the proposed ordinance and against the use permit gave notice immediately after the vote on each measure that under parliamentary rules of order he elected to change his vote, and made motions for reconsideration of each matter at the next meeting. Plaintiff filed the complaint before the next scheduled meeting of the board of supervisors, and the trial court issued a temporary restraining order and an order to show cause why an injunction pendente lite should not be issued.

The ground on which plaintiff sought an injunction against enactment of the proposed ordinance was that the ordinance would be invalid because it was not submitted to the planning commission for a report as required by the provisions of the State Planning Act (Stats. 1929, p. 1811, § 9, as amended; 2 DBering’s Gen. Laws, 1944, Act 5211b) and

section 21, Ordinance 264 of Marin County. The injunction restraining the board of supervisors from issuing the use permit was sought on two grounds: (1) that under the provisions of ordinance 264, such a permit could be granted only on affirmative action of both the planning commission and the board of supervisors; and (2) that Supervisor Thompson was disqualified from participating in any action that the board of supervisors might take with respect to the application for a use permit. The Benicia Food Products Company and Vito B.

Alioto, a part owner of the company, were joined as defendants along with the members of the board of supervisors. The company, Alioto, and Supervisor Thompson, jointly filed a demurrer and an answer. The grounds of the demurrer were that the complaint failed to state facts constituting a cause of action; that the complaint contained a misjoinder of two causes of action; and that two causes of action were not separately stated. The other members of the board of supervisors filed a general demurrer.

The trial court dismissed the action as to the Benicia Food Products Company and Alioto and granted them leave to appear as interveners. They thereupon rested their opposition to the injunction on the demurrer and answer previously filed. The demurrers were overruled, and after hearing on the order to show cause, the trial court issued an injunction pendente lite restraining the members of the board of supervisors “from (

a) issuing or causing to be issued any Use Permit, or any permit, pursuant to the application of said Benicia Food Products Company, filed as set forth in the complaint on file herein before the Planning Commission of the said County of Marin . . ., and (2) from publishing said purported Ordinance likewise referred to in said complaint on file herein, or taking any steps to bring said Ordinance into existence or effect. . . .” Defendants and interveners, hereinafter collectively referred to as defendants, have appealed from this order on the following grounds: (1) the injunction is erroneous in that it restrains the board of supervisors from taking legislative action; (2) the board of supervisors had power to issue the use permit in question after the denial thereof by the planning commission;

(3) Supervisor Thompson was not disqualified from participating in any action with respect to the issuance of the use permit; (4) the injunction is excessive in any event, because it enjoins the construction of a fish cannery as a nuisance. Defendants on appeal have not relied on the alleged misjoinder of causes of action or failure to state two alleged causes of action separately. Those contentions may therefore be regarded as waived. (Title G. & T. Co. v. Fraternal Finance Co., 220 Cal. 362, 363 [30 P.2d 515]; Mayne v. San Diego Electric Ry.

Co., 179 Cal. 173, 179 [175 P. 690].) In any event, if the complaint is deficient in these respects, there is nothing to indicate that defendants were in any way prejudiced thereby. (Cal. Const., art VI, § 4%; Tobin Grocery Co. v. Spry, 204 Cal. 247, 250 [267 P. 694]; cases collected 2 Cal.Jur. 1010, § 601.) The contention that the injunction erroneously restrains legislative action by the board of supervisors is meritorious. The temporary restraining order was issued after action on the proposed ordinance was delayed by the motion for reconsideration.

The temporary injunction pendente lite, by ordering the board of supervisors to refrain from either publishing the ordinance or taking any steps to bring such ordinance into effect, clearly interfered with the legislative action of the legislative body of the county. Regardless of whether the action of the board of supervisors would be valid, such an injunction is not the proper remedy in this case. Plaintiff contends that there is an exception to the general rule or judicial noninterference with the legislative action of a county board of supervisors (Nickersen v.

San Bernardino County, 179 Cal. 518, 522 [177 P. 465]; cases collected 140 A.L.R. 439, 440) when the board is about to adopt an ordinance in excess of its jurisdiction. (See Glide v. Superior Court, 147 Cal. 21, 23 [81 P. 225].) Even if it be assumed that the contemplated action would be in excess of the board’s jurisdiction in this case, any authority that a court might have to enjoin such action is qualified by the requirement that plaintiff show that there is no other adequate remedy for the protection of his rights and that political rights would not be curtailed. (See Harnett v.

County of Sacramento, 195 Cal. 676, 683 [235 P. 445].) Before an injunction would be available to restrain legislative action in this case it would at least be necessary for plaintiff to show that the passage of the ordinance without “any attempt to enforce it would instantly produce irreparable injury.” (6 McQuillan, Municipal Corporations, 731.) Obviously, plaintiff cannot make such a showing, for if the ordinance is illegally enacted, he will have an adequate remedy in his right to seek an injunction restraining its enforcement or restraining anyone from building or operating a fish reduction plant pursuant to it.

The principal issue with respect to the validity of the remainder of the injunction is whether the board of supervisors under Ordinance 264 of Marin County and under the State Planning Act may issue a use permit after the Marin County Planning Commission had denied an application therefor. The property in question was located in a district designated as an “M-2” or heavy industry zone by the master plan of Marin County.

Section 11.19 of the ordinance in question provides that property in “M-2” zones may be used for “All uses not otherwise prohibited by law; provided however, that none of the following uses shall be established in any ‘M-2’ district unless and until a use permit in each case shall first have been secured for such use: . . . Reduction, canning, processing or treatment of fish or of animal products of any kind.”

Section 20 of the ordinance provides that use permits may be issued for “Any of the uses or purposes for which such permits are required or permitted by the provisions of this ordinance.” This

section also provides that, “Such permits shall be issued under the same procedure as that specified in

Section 19 of this ordinance for the granting of adjustments or variances ...” with certain exceptions relating to the conduct of hearings by the commission.

Section 19 thus contains the procedural provisions applicable to the granting of use permits under

section 11.19 of the ordinance. The first sentence of

section 19 concerns the powers of the board of supervisors and of the commission with respect to adjustments and variances. The power to grant adjustments and variances, within strictly defined limits, is given to the commission in the following terms: ‘ ‘ The Planning Commission, subject to the approval and confirmation of the Board of Supervisors in each case, as hereinafter provided, shall have the power to grant adjustments and variances in any of the provisions of the ordinance. ...” (Italics added.) This is not a procedural provision and therefore is not incorporated by reference into

section 20. It should be noted, however, that the sentence vests “the power to grant adjustments and variances” in the commission, subject to the approval and confirmation of the board of supervisors, and does not reserve any authority in the board of supervisors to grant adjustments and variances. The pertinent procedural provisions of

section 19 are as follows: “Application for any adjustment or variance permissible under the provisions of this

section shall be made to the Planning Commission in the form of a written application for a building permit or for a permit to use the property or premises as set forth in said application. ’ ’ “The Commission shall make its decision on the said application and shall report such decision to the Board of Supervisors. ’ ’ “No permit shall be issued under the provisions of this

section unless and, until a decision of the Planning Commission, as aforesaid, approving the same, is approved and confirmed by the Board of Supervisors. . . . Upon receipts of such report, if the decision of the Planning Commission approved the granting of the application, the Board of Supervisors either shall, by resolution, approve and confirm said decision, whereupon the permit as applied for may issue; or shall refuse to approve and confirm said decision.” (Italics added.)

Section 19 thus expressly provides that no permit shall be granted without the approval of the planning commission. The board of supervisors is given power merely to approve or refuse to approve the decision of the commission approving the application for a permit; the board of supervisors is given no authority over the application should the commission deny it. Since the only procedure for granting use permits is that' specified in

section 19 for variances and adjustments, it follows that the board of supervisors was not authorized by the ordinance to take affirmative action on the application for a use permit in the face of the disapproval thereof by the planning commission. It is contended, however, that the board of supervisors has inherent power to grant a use permit, and that any attempt to confer this power on the planning commission would be an unconstitutional delegation of legislative power to a local administrative board.

The general rule, however, is that even the broader power to authorize a variance from the terms of a zoning ordinance may be granted to an administrative board without violating the principle against the delegation of legislative powers. (Freeman v. Board of Adjustment, 97 Mont. 342, 354 [34 P.2d 534]; State v. Jacksonville, 101 Fla. 1241, 1242 [133 So. 114]; L. & M. Investment Co. v. Cutler, 125 Ohio St. 12, 18 [180 N.E. 379, 86 A.L.R. 707] McCord v.

Ed Bond & Condon Co., 175 Ga. 667 [165 S.E. 590, 591, 86 A.L.R. 703]; cases collected 86 A.L.R. 714.) The action of the planning commission in denying a use permit is wholly administrative. There is no more delegation of legislative authority in this case than is normally involved in vesting administrative officers with authority to grant or deny a permit pursuant to a local ordinance. (See Gaylord v. City of Pasadena, 175 Cal. 433, 436 [166 P. 348]; Gould v. Western Dairy Products, Inc., 12 Cal.App.2d 188, 191 [55 P.2d 274]; see, also, Rubin v.

Board of Directors, 16 Cal.2d 119, 124 [104 P.2d 1041].) The board of supervisors, moreover, had no inherent power to grant the use permit regardless of the terms of the ordinance. It has long been recognized in this state that a county board of supervisors performs administrative as well as legislative functions. (Chinn v. Superior Court, 156 Cal. 478, 481 [105 P. 580].) If the board of supervisors had power to grant a use permit, it was an administrative power for the same reason that the granting of permits is administrative when done by a local board.

When a board of supervisors acts in an administrative capacity, as in granting permits under a zoning ordinance, it is bound by the terms of the ordinance until the ordinance is amended through proper legislative procedure. (See Magruder v. City of Redwood, 203 Cal. 665, 675 [265 P. 806]; Hopkins v.

MacCulloch, 35 Cal.App.2d 442, 452 [95 P.2d 950].) The action of the Marin County Board of Supervisors in attempting to grant a use permit contrary to the terms of the ordinance cannot be considered an amendment to the ordinance, for by its terms and by the terms of the State Planning Act under which it was adopted, any amendments to the master plan must be submitted to the local planning commission. (Ordinance 264, § 21; State Planning Act, § 9.) Defendants invoke the rule of contemporaneous and practical construction of the ordinance to support their contention that the ordinance authorizes the board of supervisors to issue a use permit after the planning commission has determined that it should be denied.

In 1940, over two years after the enactment of the ordinance, the board granted an application for an adjustment after the commission had denied the application. In 1944, some six years after the enactment of the ordinance, the board granted an application for a use permit despite the commission’s denial of the application.

In neither instance was the action of the board of supervisors “made at or near the time of the enactment” of the ordinance. (See 3 Sutherland, Statutory Construction, p. 515.) Moreover, although contemporaneous construction by officials charged with the administration of a statute or ordinance is given great weight, “final responsibility for the

interpretation of the law rests with the courts. ‘At most administrative practice is a weight in -the scale, to be considered but not to be inevitably followed. ’ ” (Whitcomb Hotel v. California Emp. Com., 24 Cal.2d 753, 756-757 [151 P.2d 233, 155 A.L.R. 405], quoting from F. W. Woolworth Co. v. United States, 91 F. 2d 973.) The. rule of contemporaneous construction may not be applied when the wording of the statute or ordinance, as in the present case, clearly calls for a different construction. (California Drive-in Restaurant Ass’n. v.

Clark, 22 Cal.2d 287, 294 [140 P.2d 657, 147 A.L.R. 1028].) Defendants also contend that under the State Planning Act, the Board of Supervisors of Marin County had no authority thus to limit its powers over use permits. It is conceded that the board of supervisors had no authority to pass an ordinance inconsistent with the State Planning Act. Whether or not the board might have had authority pursuant to

article XI,

section 11, of the California Constitution to provide for some form of zoning plan in the absence of a state statute on the subject of county zoning (see Gilgert v. Stockton Port District, 7 Cal.2d 384, 391 [60 P.2d 847]; Wertheimer, Constitutionality of Rural Zoning, 26 Cal. L. Rev. 175, 177), the county board of supervisors could not under this constitutional provision adopt a zoning ordinance conflicting with state legislation on the subject. The question arises, therefore, whether the State Planning Act required a board of supervisors to reserve to itself authority to grant a use permit of the type involved in this case regardless of the decision of the local planning commission.

Section 6.3 of the State Planning Act authorizes the legislative body of a county, in adopting a master plan or part thereof, “to determine upon reasonable and practical means for putting into effect such master plan or part thereof, in order that the same will serve as a pattern and guide for the orderly physical growth and development of such . . . county and as a basis for the efficient expenditure of the funds thereof relating to the subjects of such master plan. Such legislative body may adopt and use such procedure as may be necessary for this purpose.” (Italics added.) This

section clearly authorizes a county board of supervisors to provide in the county zoning ordinance for reasonable and practical means for putting the master plan into effect. The ordinance in question provides that fish reduction plants may be constructed and operated in “M-2” zones only when a use permit therefor is obtained on the approval of an application for such a permit by both the planning commission and the board of supervisors. It could have provided that there should be no fish reduction plants in “M-2” zones; instead, it provides for such plants, if a proper permit is obtained.

It could have provided that the board of supervisors was free to grant such permits; instead, it requires approval of both the planning commission and the board of supervisors for the construction of any fish reduction plant in “M-2” zones.

Section 20 of the ordinance indicates that this limitation was adopted to prevent the issuance of use permits that might “under the circumstances of the particular case, be detrimental to the health, safety, morals, comfort, convenience, or welfare of persons residing or working in the neighborhood of such use. ...” The requirement of affirmative action by both bodies is certainly a reasonable and practical means of accomplishing this purpose and putting the master plan into effect under

section 6.3 of the State Planning Act. (See, also, § 8 of the State Planning Act.) The procedure set forth in the ordinance is designed to protect interested citizens and property owners. The requirement that the board of supervisors follow this procedure cannot be disregarded on the ground that the board can modify the procedure by amending the ordinance. The State Planning Act prescribes a definite procedure for amending the local planning ordinance.

It provides for public hearings before the local planning commission before adoption of the ordinance and before any amendments may be made to the ordinance after its adoption, as a means of protecting interested citizens and property owners. Before any ordinance is adopted, the local planning commission must hold public hearings at which interested parties may appear. (State Planning Act, § 5.) A proposed plan is then submitted to the local legislative body, which also holds public hearings.

Any change in the proposed ordinance must be submitted to the commission for additional public hearings. (Ibid. § 6.) The board of supervisors does not now have unlimited power to make any change in the ordinance. Substantially the same procedure used in adopting the ordinance must be followed in making changes.

The board has no power to make changes until it has submitted them to the commission for public hearings, where interested parties may appear and present arguments in opposition thereto. (Ibid. § 9.) If the board of supervisors, in an administrative capacity, can ignore the clear provisions of the ordinance, it was idle to prescribe the procedure for amendments. Defendants contend that the Legislature has provided a specific procedure in

section 10 of the state act for the issuance of use permits and that the ordinance in question is inconsistent with that section, which provides: “The body creating such planning commission may, by general or special rule, provide for the reference of any other matter or class of matters to the planning commission before final action thereon by the public body or officer óf said city, county, or city and county, having final authority thereon, with the provision that final action shall not be taken until said planning commission has submitted its report thereon or has had reasonable time, to be fixed in said rule, to submit the report.

The planning commission shall have full power and authority to make such investigations, maps and reports, and recommendations in connection therewith relating to the planning and development of the city, county, or city and county, as it deems desirable, providing the total expenditures of said board shall not exceed the funds available therefor.” (Italics added.) There is nothing in this

section that requires the body creating the planning commission to reserve to itself final authority over such matters as the use permit involved in this case. It provides the procedure to be followed in certain matters when final authority thereon is within the jurisdiction of some body other than the planning commission. The parties disagree as to what matters are referred to by the phrase "Other matters or class of matters.” Defendants contend that it refers to any action with respect to local zoning other than amendments to the master plan provided for in the preceding

section (§9). Plaintiff, on the other hand, construes the phrase as referring to matters affecting zoning that are not otherwise covered in the entire act. Under the latter construction,

section 10 would be applicable if a local officer or board had final jurisdiction over some matter “relating to the planning and development of the . . . county” that was not an integral part of the zoning plan. It would authorize the local legislative body to require such officer or board to refer the matter to the planning commission before taking action. The last sentence in

section 10 lends weight to this construction, for if

section 10 refers to the administration of the basic zoning plan itself, it was unnecessary for the Legislature to provide in this

section that the “commission shall have full power and authority to make such investigations, maps and reports, and recommendations in connection therewith relating to the planning and development of the city, county, or city and county, as it deems desirable. ...” Such powers are conferred on the commission by

section 8 in connection with its duties in “carrying out” the master plan: “The commission, and its members, officers and employees in the performance of their functions, may enter upon any land and make examinations and surveys. ... In general the commission shall have such power as may he necessary to enable it to fulfill its functions and carry out the purposes of this act. ’ ’ Even if it be assumed, however, that defendants' construction is correct,

section 10 would not apply to the use permit involved in this case. By its terms, the

section applies only if final authority over the action referred to is given to some body or officer. There is no provision of either state or local law giving final authority over such use permits to the board of supervisors when the planning commission has decided against their issuance.

Section 10 does not state that the body creating the commission must provide for reference to the planning commission of any matter involving the administration of county zoning before final action thereon is taken by the body creating the planning commission. In order to read the

section as if it contained such a provision it would be necessary to ignore the words “public body or officer . . . having final authority thereon.” The

section obviously applies to action taken by any local public body or officer, and it applies to a board of supervisors only if that body is the one having final authority over the matter involved. Moreover, it is circular reasoning to conclude that this

section gives final authority over any matter to any officer or board, for until the question of the final authority of that body is determined, the question of the applicabiliy of

section 10 remains undetermined. Defendants rely on a dictum in Hopkins v. MacGulloch, 35 Cal.App.2d 442, 450 [95 P.2d 950], involving the effect of

section 10 on the power of a planning commission over nonconforming use permits: “Prom an

interpretation of . . .

section 10, supra, when construed with the ordinance adopted pursuant thereof, it appears to us that the planning commission created ly the ordinance was more or less an advisory body. . . .” (Italics added.) The permit involved in that case was of the nonconforming type under which a property owner might be allowed to continue a use prohibited by the master plan, a different type of permit from that involved in the present case. The ordinance there involved reserved to the city council the power to grant a nonconforming use permit by unanimous vote when the planning commission decided against the applicant. Since final authority was thus expressly given the city council, the reference to

section 10 of the State Planning Act was unnecessary. Whether or not this dictum that a nonconforming use permit is “other matter or class of matters” within the meaning of

section 10 is correct, the

section has no application to a provision for use permits adopted as a method of administering the zoning plan, when there is no provision giving final authority over such permits to some local body or officer. Not only is no provision of the State Planning Act inconsistent with

section 19 of the ordinance in question, but authority for that

section is contained in

section 6.3 of the state act. The second ground on which the injunction was sought is that the action of the board of supervisors, even if authorized by law is invalid because of the disqualification of a member who cast the deciding vote. Since the board in any event was without authority to grant the use permit, it is unnecessary to decide whether the supervisor in question was disqualified. Plaintiff alleged in his complaint that the operation of the proposed plant would be offensive and would interfere with the proper use of his property.

Defendants contend that the injunction is excessive on the ground that these allegations were designed to show a basis for injunctive relief regardless of whether or not the interveners obtained a valid use permit. It is contended that the trial court enjoined the operation of the plant on the ground that it would be a nuisance even if authorized under the zoning regulations. Although plaintiff has argued on appeal that such relief would be proper, there is nothing in the injunction to indicate that the trial court based its order on this ground.

Even if the allegations with respect to the offensive nature of the proposed plant can be construed as allegations of a nuisance, they also form the basis of plaintiff’s right to injunctive relief against the board of supervisors to prevent the issuance of a use permit contrary to the terms of the ordinance. The interveners were dismissed a.s defendants and appear only as interveners. There is, therefore, no basis for the contention that they were enjoined from operating the proposed plant under a valid permit, for they are not directly enjoined from doing anything.

Since the board of supervisors could not legally grant interveners application for a use permit, it is immaterial whether or not the interveners could be enjoined from operating under a valid permit. (For a collection of conflicting authorities on this question see note 166 A.L.R. 659; see, also, Civ. Code, § 3482; Norton v. City of Pomona, 5 Cal.2d 54, 60 [53 P.2d 952].) The order granting the injunction pendente lite is affirmed insofar as it restrains the members of the Board of Supervisors of Marin County from attempting to grant a use permit after negative action by the Marin County Planning Commission.

That part of the order purporting to restrain the members of the board of supervisors from taking any action to amend the local zoning ordinance is reversed. Gibson, C. J., Edmonds, J., Spence, J., concurred.