THE PEOPLE ex rel. JOHN AVERNA et al., Appellant, v. CITY OF PALM SPRINGS, Respondent, 51 Cal. 2d 38

SPENCE, J. This is a proceeding in quo warranto to test the validity of the annexation of certain “uninhabited” territory to the city of Palm Springs. Plaintiff’s complaint, which charged the invalidity both generally and specifically, was found insufficient by the trial court and judgment was entered in favor of defendant after a demurrer was sustained without leave to amend. Quo warranto lies to attack a completed annexation proceeding. (American Distilling Co. v.

City Council, Sausalito, 34 Cal.2d 660, 667 [213 P.2d 704, 18 A.L.R.2d 1247].) Under existing law, the complaint is held sufficient if it charges the usurpation of the franchise in general terms. (People v. City of Los Angeles, 133 Cal. 338, 340-341 [65 P. 749].) But if the pleader sets out the specific facts relied on to show the usurpation, he assumes the burden of allegation and proof, and the complaint is subject to general demurrer if those facts do not state a cause of action. (People v.

City of Los Angeles, supra, 133 Cal. 338, 341.) The attorney-general has urged that we revise the existing rules and require specific allegations in all eases where the action is brought on relation of private parties. We have determined, however, that this request should more properly be addressed to the Legislature, and that the rules heretofore established should govern these proceedings.

And since plaintiff does not contend that any additional grounds are available to challenge this annexation, we have concluded that the trial court did not err in denying leave to amend, and that plaintiff’s cause must stand or fall on the basis of the specific grounds alleged. The annexation was conducted pursuant to the “Annexation of Uninhabited Territory Act of 1939.” (Stats. 1939, eh. 297, p. 1567; now Gov. Code, §§ 35300-35326.) That act permits a city to annex “contiguous uninhabited territory” (Gov. Code, § 35302) in proceedings initiated by resolution of the city’s legislative body. (Gov.

Code, § 35310.) The resolution must state the legislative body’s reasons for desiring annexation (Gov. Code, § 35310), describe the boundaries of the territory to be annexed, designate it by an appropriate name, and contain notice of the time and place the legislative body will hear protests against the annexation. (Gov. Code, § 35306.) Copies of the resolution must be published twice in both city and county newspapers of general circulation, and written notice is to be mailed to each landowner in the territory at least twenty days before the first public hearing. (Gov.

Code, § 35311.) Any owner of property within the territory may file written protest at any time before the hour set for hearing objections (Gov. Code, § 35312), and the legislative body must hear and pass upon all protests so made. (Gov. Code, § 35313.) If the owners of one-half of the value of the territory protest, further proceedings shall not be taken. (Gov. Code, § 35313.) But if sufficient valid protests are not made, the legislative body must approve or disapprove the annexation, by ordinance. (Gov.

Code, § 35314.) The annexation is complete when a certified copy of the ordinance is transmitted to the secretary of state and filed by him. (Gov. Code, §§ 35316, 35318.) Plaintiff commenced this action after the annexation proceedings had been completed.

The complaint alleged that the annexation was void because (1) written notice of the annexation proceedings was not given to one owner of land within the territory; (2) the notice and hearing given the other landowners did not satisfy the statutory requirements; (3) protests submitted to the city council deprived it of jurisdiction to annex the territory; and because (4) the annexation is unreasonable; (5) amounts to a fraudulent abuse of the statute; and (6) operates to take property without due process of law.

First: Plaintiff alleges that the Southern Pacific Company, an owner of land in the territory, was not served with written notice of its opportunity to protest the annexation, and contends that this omission deprived the city council of jurisdiction to annex the territory. As previously noted, the statute requires that notice be given by publication and by mail. (Gov. Code, § 35311.) Plaintiff does not allege that the city failed to mail written notice to all other landowners in the annexed territory nor does plaintiff allege that the statutory requirements as to publication of notice were not observed.

Under these circumstances, the failure to allege that the Southern Pacific Company did not acquire knowledge of the contents of the published notice, that it did not appear at the hearing, that it desired to protest, or that its protest, if any, was not in fact considered, renders this claim fatally deficient. (See De Luca v. Board of Supervisors, 134 Cal.App.2d 606, 609-611 [286 P.2d 395].) If it may be said that the language found in In re Central Irrigation District, 117 Cal. 382 [49 P. 354], carries any implication to the contrary, we do not deem it applicable to the situation here.

In that case the statute provided for but one form of notice, which was notice by publication, and the published notice was held to be fatally defective. Here there was merely a failure to give notice to a single landowner by one of two specified methods. Furthermore, it should be noted that the decision in the Central Irrigation District case has been strictly limited in its application to its precise facts. (See People v. City of Montebello, 192 Cal. 489, 493 [221 P. 207].) Second: Plaintiff claims that none of the landowners were afforded the kind of notice or right of hearing required by the.act.

This contention is based on the city’s refusal to entertain either oral protests or written protests not tendered until after the hearing had commenced. Since the notice of hearing specified that the council would hear and determine “all written protests filed with the City Council prior to the hour” set for hearing, no complaint can be made of its adequacy if the city was justified in rejecting all protests not submitted in the form and at the time specified. The statutory language is clear.

Section 35312 of the Government Code provides: “At any time before the hour set for hearing objections, any owner of property within the territory may file written protest. ...” (Emphasis added.) Plaintiff seeks to give a permissive reading to this section, relying on the word “may.” But the

section means exactly what it says—only written protests filed before the hour set for hearing need be considered. The

section is permissive only to the extent that no one is required to file a protest. Any other construction would render meaningless the limiting words in the next succeeding section, which requires “the legislative body . . . [to] hear and pass upon all protests so made.” (Emphasis added; Gov. Code, § 35313.) The language in Foth v. City of Long Beach, 125 Cal.App.2d 520, 528 [270 P.2d 868], is not inconsistent with this position, since the issue in that case was whether certain protests had been prematurely signed.

Third: Plaintiff asserts that even without the oral and tardy written protests, there were sufficient valid protests to bar further proceedings. At the time of the hearing, the applicable code

section provided in part: “If protest is made by the owners of one-half of the value of the territory as shown by the last equalized assessment roll, or if protest is made by public and private owners equal to one-half of the value of the territory proposed to be annexed as determined by the legislative body, further proceedings shall not be taken.” (Emphasis added; Gov. Code, § 35313.) In 1955, after this annexation was completed, the Legislature amended this

section by adding, “As used in this article, ‘value of the territory’ means the value of the land and improvements thereon.” (Stats. 1955, ch. 1948, §5, p. 3580.) Plaintiff contends that the city erred in its determination that written protests filed prior to the hearing represented less than “one-half of the value of the territory.” Plaintiff concedes that the city’s determination was correct if the city was entitled to consider the value of both land and improvements in determining the sufficiency of protests.

But plaintiff contends that before the 1955 amendment, “value of the territory” meant value of the land exclusive of improvements, and that this definition must govern these proceedings. Plaintiff points to

section 35305 of the Government Code as an indication that land values only are to be considered. That

section provides: “Upon receiving a written petition requesting annexation . . . signed by the owners of not less than one-fourth of the land in the territory by area, and by assessed value . . . , the legislative body shall, without delay, pass a resolution giving notice of the proposed annexation.” The

section does not support plaintiff’s position. “ Land” means “the solid material of the earth” (Civ. Code, § 659), and its value does not include the value of improvements thereon. (See Krouser v. County of San Bernardino, 29 Cal. 2d 766 [178 P.2d 441].) “Value of the territory” has not been so interpreted. (See American Distilling Co. v. City Council, Sausalito, supra, 34 Cal.2d 660, 665 [213 P.2d 704, 18 A.L.R 2d 1247].) Both

section 35305 and

section 35313 were first enacted as part of the “Annexation of Uninhabited Territory Act of 1939” (Stats. 1939, ch. 297, §§ 3, 6, p. 1568) and were added to the Government Code with only minor changes in 1949. (Stats. 1949, ch. 79, pp. 125-126.) Since the Legislature has consistently required the petitions to be signed by owners of not less than one-fourth of the “land ... by assessed value” (Gov. Code, § 35305), and has at the same time required that annexation proceedings be terminated i£ protest is made by owners of one-half of the “value of the territory as shown by the last equalized assessment roll” (Gov.

Code, § 35313), it does not appear that the two tests were intended to be equivalents. We therefore conclude that the 1955 amendment was merely declaratory of existing law, and that the city council did not err in making its determination on the basis of the value of both land and improvements. Fourth: Plaintiff contends that the annexation is void because it is unreasonable. Plaintiff admits that the annexation violates no express statutory limitation restricting the shape, extent or character that annexed territory may take.

But the annexation is said to be void because it is unreasonable in several particulars. In this regard it is alleged that the topography of the annexed land makes it impossible of urban development, that its size is out of all proportion to the city’s needs, that part of the territory is included in a national forest, and that the land will not benefit by inclusion within the city. A mere citation of the many cases stating that the wisdom or expediency of particular annexations" is not a judicial question (People v. City of Riverside, 70 Cal. 461, 463 [9 P. 662, 11 P. 759] ; Johnson v.

City of San Pablo, 132 Cal.App.2d 447, 457 [283 P.2d 57] ; People v. Town of Corte Madera, 115 Cal.App.2d 32, 47 [251 P.2d 988] ; City of Burlingame v. County of San Mateo, 90 Cal.App.2d 705, 711 [203 P.2d 807]) ; that the courts can go no further than to see that the existing law is observed (People v. City of Riverside, supra; Rafferty v. City of Covina, 133 Cal.App.2d 745, 753 [285 P.2d 94] ; Johnson v. City of San Pablo, supra; People v. Town of Corte Madera, supra; Potter v. City Council, 102 Cal.App. 2d 141, 145-146 [227 P.2d 25] ; City of Burlingame v.

County of San Mateo, supra); and that, subject only to express statutory limitations, the permissible shape, character or extent of the territory annexed is a political question (People v. City of Los Angeles, 154 Cal. 220, 224-225 [97 P. 311] ; People v. Town of Corte Madera, supra, at pp. 46-47; see also Rogers v. Board of Directors of Pasadena, 218 Cal. 221, 223 [22 P.2d 509]; People v. Town of Loyalton, 147 Cal. 774, 777-778 [82 P. 620]), is sufficient to show that plaintiff’s position has no support in the law of this state.

Moreover, the Legislature, not unmindful of the peculiar annexations attempted hy some cities (e.g., City of Burlingame v. County of San Mateo, supra, 90 Cal.App.2d 705 .[a horseshoe shaped territory 100 feet wide, 14,950 feet long, and enclosing 730 acres of unincorporated territory]), has made no attempt to state a general rule governing the shape, character or extent of territory that may be annexed; rather, its efforts have been confined to curbing particular abuses of the annexation acts. (See, e.g., Gov.

Code, §§ 35002.5, 35326.) By this treatment of the problem, the Legislature has manifested an intent that the courts should continue to treat these questions as political in nature, and that an annexation should not be declared invalid unless some express statutory provision has been violated. It follows that plaintiff’s attempt to establish this annexation as unreasonable does not state a cause of action. Fifth: Plaintiff claims that the annexation is void as a fraudulent atuse of the authority conferred hy statute.

It has been indicated that the courts have, and in appropriate cases will exercise, the power to set aside a purported annexation where there has been a fraudulent abuse of the statute. (City of Anaheim v. City of Fullerton, 102 Cal.App. 2d 395 [227 P.2d 494]; People v. City of Monterey Park, 40 Cal.App. 715 [181 P. 825], See also Rogers v. Board of Directors of Pasadena, supra, 218 Cal. 221, 223; People v. City of Los Angeles, supra, 154 Cal. 220, 224; Johnson v. City of San Pablo, supra, 132 Cal.App.2d 447, 456-457; People v.

Town of Corte Madera, supra, 115 Cal.App.2d 32,44.) But plaintiff’s complaint does not present such a case. The allegation of fraudulent abuse is based in large part on the identical facts used as a predicate for the charge of unreasonableness. Since there was no violation or evasion of any statutory provision relating to the determination of the land to be annexed, plaintiff’s allegations in that regard do not establish a fraudulent abuse of the statute.

The assertion that the city council assigned a false reason for annexing the territory and the indefinite allegation that the real reason was to subject the land to municipal taxes are conclusionary and, in any event, add nothing to the complaint. The motives of the city council cannot be inquired into so long as it proceeded according to established law. (Johnson v. City of San Pablo, supra, 132 Cal.App.2d 447, 457; People v. Town of Corte Madera, supra, 115 Cal.App.2d 32, 47; City of Burlingame v.

County of San Mateo, supra, 90 Cal.App.2d 705,711.) Sixth: Plaintiff contends that the annexation will operate to take property without due process of law. There is no merit in this contention. No one has a vested right to he either included or excluded from a local governmental unit (Peart v. Board of Supervisors, 145 Cal.App.2d 8, 11 [301 P.2d 874]), and the fixing of territorial boundaries of a municipal corporation will not ordinarily constitute an invasion of federal constitutional rights. (Hunter v. City of Pittsburgh, 207 U. S. 161, 178-179 [28 S.Ct. 40, 52 L.Ed. 151]; Forsyth v.

Hammond, 166 U.S. 506, 518 [17 S.Ct. 665, 41 L.Ed. 1095]; Kelly v. City of Pittsburgh, 104 U. S. 78, 80-81 [26 L.Ed. 658].) But plaintiff contends that neither the land nor its owners will be benefited “by inclusion within . . . the city” nor will the land or landowners receive “any of the benefits customarily resulting to property and property owners” within a municipality; and that the burden of municipal taxes, which is certain to follow the annexation, will amount to a taking of property without due process of law. Plaintiff relies on Myles Salt Co. v.

Iberia Drainage Dist., 239 U.S. 478 [36 S.Ct. 204, 60 L.Ed. 392]. In that case the plaintiff challenged the validity of a tax imposed by a special taxing district to finance the construction and maintenance of a drainage system. It was held that plaintiff’s land could not be taxed since it would not be benefited by the proposed improvements. That ease is readily distinguishable and the rule enunciated is not applicable here. (Morton Salt Co. v. City of South Hutchinson, 177 F.2d 889, 891-892; State ex rel. Pan American Production Co. v.

Texas City,-Tex.- [303 S.W.2d 780, 783], appeal dismissed per curiam, 355 U.S. 603 [78 S.Ct. 533, 2 L.Ed.2d 523].) Special taxing districts can confer but one readily ascertainable benefit peculiarly advantageous to the property within the district and if it does not accrue to particular land, an assessment of that land to finance the improvements amounts to a taking of property without due process of law.

But the rule is otherwise with respect to municipal corporations whose advantages are general and varied, including “the legally presumed intangible benefits resulting from the privilege of being part of an organized community.” (Morton Salt Co. v. City of South Hutchinson, supra, 177 F.2d at p. 889.) Since the burden which plaintiff anticipates is that of a general ad valorem property tax imposed to support the local government, it is not necessary that any special benefit accrue to the land by reason of the annexation. (City of Santa Rosa v. Coulter, 58 Cal. 537; see also Town of Dixon v.

Mayes, 72 Cal. 166,168 [13 P. 471].) The validity of such a tax does not depend on the receipt of some special benefit as distinguished from the general benefit to the community. (Memphis & Charleston Ry. Co. v. Pace, 282 U.S. 241, 246, 249 [51 S.Ct. 108, 75 L.Ed. 315, 72 A.L.R 1096] ; St. Louis & S. W. Ry. Co. v. Nattin, 277 U.S. 157, 159 [48 S.Ct. 438, 72 L.Ed. 830]; Morton Salt Co. v. City of South Hutchinson, supra, 177 F.2d 889, 891-892.) “ [I]t is constitutionally sufficient if the taxes are uniform and are for public purposes in which the whole city has an interest.” (Morton Salt Co. v.

City of South Hutchinson, supra, 177 F.2d 889, 891.) Thus the performance of such ordinary municipal services as police and fire protection within the existing boundaries of the city (see Kelly v. City of Pittsburgh, supra, 104 U.S. 78, 82) together with the prospect that the city, consistent with its own interests and declared intent, will extend those services to the annexed territory, will justify the imposition of taxes and will be sufficient to satisfy the due process clauses of the state (Anaheim Sugar Co. v. County of Orange, 181 Cal. 212, 217 [183 P. 809]; City of Santa Rosa v.

Coulter, 58 Cal. 537) and federal constitutions. (Kelly v. City of Pittsburgh, supra, 104 U.S. 78, 82; Anaheim Sugar Co. v. County of Orange, supra; see also Bailey v.

Collector of Manasquan, 53 N.J.L. 162, 163-166 [20 A. 772].) Since plaintiff’s specific allegations do not establish the invalidity of the annexation, it is unnecessary to consider the effect of the “First Validating Act of 1955” (Stats. 1955, eh. 11, p. 454) which purported to validate “all acts and proceedings heretofore taken by any public body under any law, or under color of any law, for the annexation or inclusion of territory into any such public body. ...” (Stats. 1955, eh. 11, § 4, p. 456.) The judgment is affirmed. Gibson, C. J., Shenk, J., Traynor, J., and McComb, J., concurred.