Opinion
9-27-1965
CITY OF BAKERSFIELD, a Municipal Corporation, Plaintiff and Respondent, v. Milton MILLER, Individually, and as Trustee of the Hotel Padre Trust, et al., Defendants and Appellants. Milton MILLER, Individually, and as Trustee of the Hotel Padre Trust, et al., Cross-complainants and Appellants, v. CITY OF BAKERSFIELD, a Municipal Corporation, Cross-defendant and Respondent. Civ. 472.
Kenneth W. Hoagland, City Atty., Bakersfield, for respondent.
CITY OF BAKERSFIELD, a Municipal Corporation, Plaintiff and Respondent,
v.
Milton MILLER, Individually, and as Trustee of the Hotel Padre Trust, et al., Defendants and Appellants.
Milton MILLER, Individually, and as Trustee of the Hotel Padre Trust, et al., Cross-complainants and Appellants,
v.
CITY OF BAKERSFIELD, a Municipal Corporation, Cross-defendant and Respondent.
For Opinion on Hearing, see 48 Cal.Rptr. 889, 410 P.2d 393.
Milton Miller, in pro. per.
No appearance for appellant Bakersfield Hotel Co.
Kenneth W. Hoagland, City Atty., Bakersfield, for respondent.
CONLEY, Presiding Justice.
The principal questions to be determined on this appeal are:
1) Whether a municipal corporation, which does not allege in its complaint the existence of a nuisance but relies wholly upon the breach of the criminal provisions of a municipal building ordinance, is entitled to secure injunctive relief to enforce the ordinance?
2) Whether in the circumstances of this case there was a failure on the part of the city to observe due process of law by omitting to hold any formal hearing before posting at appellant's hotel doors signs reading 'Do not enter-Unsafe for Occupancy?'
3) Whether the form of the decree in the case, aside from all other considerations, is so vague and uncertain as to require reversal?
The Hotel Padre located on the main street of the City of Bakersfield is a reminforced concrete and steel building, 8 stories high, built in 1929; admittedly it is a socalled 'fireproof building,' which was constructed before the adoption of the present city ordinance.
The appellant first purchased a minor interest in the hotel building in the year 1945. But in 1954 and 1955, he acquired the balance of the hotel stock for himself and the beneficiaries of a trust. As a factor inducing the major investment, he was influenced by a letter signed by Mr. J. A. Olsson, Chief Building Inspector of Bakersfield, addressed to Robert N. Eddy, the architect employed by the former owner of a majority interest, dated July 31, 1953, which read: 'Dear Mr. Eddy: 'This is to inform you that the structural rehabilitation work, of the subject building, has been accepted by the City Building Department as substantially complete in accordance with the plans and specifications, approved by this office on May 11, 1953. This building is considered safe for occupancy. 'Very truly yours, J. A. Olsson Chief Building Inspector.' (Italics added.)
On the 11th day of May, 1959, the City Council of Bakersfield enacted ordinance No. 1242, New Series, by which they adopted by reference the Uniform Building Code, 1958 edition, prepared by the International Conference of Building Officials at their 35th annual meeting on September 10-13, 1957; volumes 1 and 3, and the appendix thereto were included; the ordinance specified that the words 'Building Official' as used in the code would mean 'the duly appointed and acting Chief Building Inspector of the City of Bakersfield, his duly authorized representatives, or such person as may hereafter be authorized by law to perform the duties now being performed by that official in the City of Bakersfield'; section twelve of the ordiance made it unlawful 'for any person, firm, or corporation to erect, construct, enlarge, alter, repair, move, improve, remove, convert or demolish, equip, use, occupy or maintain any building or structure in the city, or cause the same to be done, contrary to or in violation of any of the provisions of said Uniform Building Code'; the ordinance further provided that anyone violating any of the provisions of the code should be deemed '* * * guilty of a misdemeanor, and * * * of a separate offense for each and every day or portion thereof during which any violation * * * is committed, continued, or permitted, * * *' and prescribed a penalty upon conviction of $500 for each offense, 'or by imprisonment in the County Jail for a period of not more than six (6) months, or by both such find and imprisonment.'
Volume 1 of the Uniform Building Code, 1958 edition, is a printed book containing 364 pages, besides an extensive index; its preface states that the code was compiled from time to time by the Pacific Coast Building Officials Conference, the first edition having been published at the sixth annual business meeting held in Phoenix Arizona, October 18-21, 1927; editions of the code, containing expansive changes, have been published in 1930, 1933, 1937, 1940, 1943, 1946, 1949, 1952, and 1955, besides the edition adopted in ordinance No. 1242, New Series. The oral argument developed that there is also a 1964 edition of the Uniform Building Code and probably others.
Confusion is perhaps increased, rather than diminished, by amended section 17922 of the Health and Safety Code (Stats. 1965, ch. 345, p. ___), which became law on September 17, 1965, and which provides with respect to rules and regulations '* * * adopted, amended, or repealed from time to time' pursuant to this chapter of the State Housing Act: 'The rules and regulations adopted, amended, or repealed from time to time pursuant to this chapter shall include provisions imposing requirements * * * reasonably consistent with recognized and accepted standards contained in the Uniform Housing Code, * * * 1964 edition, the Uniform Building Code, * * * 1964 edition, as adopted by the International Conference of Building Officials, the Uniform Plumbing Code, * * * 1964 edition, as adopted by the Western Plumbing Officials Association, the minimum painting standards for home construction loans adopted by the Federal Housing Administration and the Department of Veterans Affairs, and the National Electrical Code, 1962 edition, as adopted by the National Fire Protection Association. The department shall adopt such other rules and regulations as it deems necessary to carry out the provisions of this part. In promulgating rules and regulations the department shall consider any amendments to the uniform codes referred to in this section. In promulgating rules and regulations the department shall also consider, among other things, geographic, topographic and climatic conditions. 'Local use zone requirements, local fire zones, building setback, side and rear yard requirements, and property line requirements are hereby specifically and entirely reserved to the local jurisdictions notwithstanding any requirements found or set forth in this part.' (Italics show amendments; asterisks show deletions.)
At time of the trial, numerous cities in California had adopted some edition of the Uniform Building Code in much the same way that Bakersfield did. This is a helter-skelter way of passing an ordinance, and certainly it departs radically from the initial American method of enacting a municipal law. The complexity and the varied requirements of modern life doubtless require the adoption of some such method by part-time professional lawmakers, but the existence of this method of conducting municipal affairs, involving the imposition of heavy penalties and the destruction of business enterprises and costly buildings, stresses the necessity that courts give close attention to the thrust of such enactments vis-a-vis the constitutional rights of individuals. The adoption, by simple reference, of a complicated 'code' of several volumes regulating the details of an important branch of our daily affairs endangers the rights of property which constitute part of our basic law. (Agnew v. City of Culver City, 147 Cal.App.2d 144, 154-155, 304 P.2d 788.)
The Constitution of the United States (amends. V and XIV) and the Constitution of California, article I, sections 1 and 14, establish that the ownership of property and the peaceable conduct of business affairs are fundamental rights to be enjoyed by all citizens; the right to maintain a legitimate business is a property right, which cannot be taken away, except under general and well-understood principles such as the police power. In Miller v. Board of Public Works, 195 Cal. 477, 484, 234 P. 381, 383, 38 A.L.R. 1479, it is said: 'The police power of a state is an indispensable prerogative of sovereignty and one that is not to be lightly limited. Indeed, even though at times its operation may seem harsh, the imperative necessity for its existence precludes any limitation upon its exercise save that it be not unreasonably and arbitrarily invoked and applied. Hadacheck v. Sebastian, 239 U.S. 394, 36 Sup.Ct.Rep. 143, 60 L.Ed. 348, Ann.Cas. 1917B, 927; District of Columbia v. Brooke, 214 U.S. 138, 149, 29 Sup.Ct.Rep. 560, 53 L.Ed. 941 [see, also, Rose's U.S. Notes]. It is not, however, illimitable and the marking and measuring of the extent of its exercise and application is determined by a consideration of the question of whether or not any invocation of that power, in any given case, and as applied to existing conditions, is reasonably necessary to promote the public health, safety, morals ([Hannibal etc.] Railroad Co. v. Husen, 95 U.S. 465, 470, 471, 24 L.Ed. 527; [Boston] Beer Co. v. Massachusetts, 97 U.S. 25, 24 LEd. 989), or general welfare of the people of a community. (Chicago, B. & Q. Ry. Co. v. Ill., 200 U.S. 561, 592, 26 Sup.Ct.Rep. 341, 50 L.Ed. 596, 4 Ann.Cas. 1175 [see, also, Rose's U. S. Notes]). 'In short, the police power, as such, is not confined within the narrow circumspection of precedents, resting upon past conditions which do not cover and control present day conditions obviously calling for revised regulations to promote the health, safety, morals, or general welfare of the public; that is to say, as a commonwealth develops politically, economically, and socially, the police power likewise develops, within reason, to meet the changed and changing conditions. What was at one time regarded as an improper exercise of the police power may now, because of changed living conditions, be recognized as a legitimate exercise of that power. This is so because: 'What was a reasonable exercise [of this power] in the days of our fathers may to-day seem so utterly unreasonable as to make it difficult for us to comprehend the existence of conditions that would justify same; what would by our fathers have been rejected as unthinkable is to-day accepted as a most proper and reasonable exercise thereof.' Streich v. Board of Education, 34 S.D. 169, 147 N.W. 779, L.R.A.1915A, 632, Ann.Cas. 1917A, 760. 'In its inception the police power was closely concerned with the preservation of the public peace, safety, morals, and health without specific regard for 'the general welfare.' The increasing complexity of our civilization and institutions later gave rise to cases wherein the promotion of the public welfare was held by the courts to be a legitimate object for the exercise of the police power. As our civic life has developed so has the definition of 'public welfare' until it has been held to embrace regulations 'to promote the economic welfare, public convenience, and general prosperity of the community.' Chicago, B. & Q. R. [Co.] v. Illinois, supra. Thus it is apparent that the police power is not a circumscribed prerogative, but is elastic and, in keeping with the growth of knowledge and the belief in the popular mind of the need for its application, capable of expansion to meet existing conditions of modern life, and thereby keep pace with the social, economic, moral, and intellectual evolution of the human race. In brief, 'there is nothing known to the law that keeps more in step with human progress than does the exercise of this power.' (Streich v. Board of Education, supra), and that power 'may be put forth in aid of what is sanctioned by usage, or held by the prevailing morality or strong and preponderant opinion to be greatly and immediately necessary to the public welfare.''
(See also Zahn v. Board of Public Works, 195 Cal. 497, 234 P. 388; People v. Johnson, 129 Cal.App.2d 1, 277 P.2d 45; City of Los Angeles v. Gage, 127 Cal.App.2d 442, 274 P.2d 34; City of Stockton v. Frisbie & Latta, 93 Cal.App. 277, 270 P. 270; Thille v. Board of Public Works, 82 Cal.App. 187, 255 P. 294.)
The police power does not ipso facto give a right to the state or to a municipal corporation to do anything it pleases. If an attempted law or regulation does not bear a substantial relation to the public health, safety, morals, or general welfare, or is arbitary, or unreasonable, its attempted execution will be stricken down. (State of Washington ex rel. Seattle Title & Trust Co. v. Roberge, 278 U.S. 116, 49 S.Ct. 50, 73 L.Ed. 210; State of Washington ex rel. Oregon R. & Nav. Co. v. Fairchild, 224 U.S. 510, 32 S.Ct. 535, 56 L.Ed. 863; Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303; Ganley v. Claeys, 2 Cal.2d 266, 268-269, 40 P.2d 817; In re Junqua, 10 Cal.App. 602, 605-607, 103 P. 159; Bank of America Nat. Trust & Sav. Ass'n, v. Town of Atherton, 60 Cal.App.2d 268, 140 P.2d 678; Morris v. City of Los Angeles, 116 Cal.App.2d 856, 861, 254 P.2d 935; State v. Wittles, 118 Minn. 364, 136 N.W. 883; 39 Am.Jur., Nuisance, § 13, p. 294; Gunderson v. Anderson, 190 Minn. 245, 251 N.W. 515, 516; 16 C.J.S. Constitutional Law §§ 195-198, pp. 938-973.)
In Skalko v. City of Sunnyvale, 14 Cal.2d 213, 215-216, 93 P.2d 93, 94, the Supreme Court said, with respect to the police power: '* * * where the exercise of that power results in consequences which are oppressive and unreasonable, courts do not hesitate to protect the rights of the property owner against the unlawful interference with his property. In other words, the governmental power is not unlimited, and a regulation of the use of property must rest upon a reasonable exercise of the police power. Nectow v. Cambridge, 277 U.S. 183, 48 Sup.Ct. 447, 72 L.Ed. 842. Legislatures may not, under the guise of the police power, impose restrictions that are unnecessary and unreasonable upon the use of private property or the pursuit of useful activities. (State of Washington ex rel. Seattle [Title &] Trust Co. v. Roberge, 278 U.S. 116, 49 Sup.Ct. 50, 73 L.Ed. 210, 86 A.L.R. 654.'
And in Anderson v. Great Republic L. Ins. Co., 41 Cal.App.2d 181, 190, 106 P.2d 75, 80, the applicable general principle is stated as follows: 'Police power can never be used as an excuse for unreasonable, arbitrary action or improper discrimination.'
In Mattei v. Hecke, 99 Cal.App. 747, at page 753, 279 P. 470, at page 472, the same principle is thus treated: In order to justify the state in interposing its authority the interests of the public generally must require such interference and such interposing of authority must be reasonably necessary for the accomplishment of the purpose, and where the police power is exerted to regulate a lawful business it is always a judicial question whether the regulation is a valid exercise of such power. In re Smith, 143 Cal. 368, 77 P. 180. 'If, therefore, a statute purporting to have been enacted to protect the public health, the public morals, or the public safety has no real or substantial relation to those objects, or is a palpable invasion of rights secured by fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution.' In re Dees, 46 Cal.App. 656, 660, 189 P. 1050, 1052.'
Fall River Valley Irrigation Dist. v. Mt. Shasta Power Corp., 202 Cal. 56, 68, 259 P. 444, 449, 56 A.L.R. 264 quotes, with approval, from a foreign jurisdiction, as follows: 'In Stone v. Kendall (Tex.Civ.App.) 268 S.W. 759, the court said: 'Since the right of a citizen to use his property as he chooses, so long as he harms nobody, is an inherent and constitutional right, the police power cannot be invoked to prohibit a particular use of private property, unless such use reasonably endangers or threatens the public health, safety, comfort, or welfare.''
While the mere fact of cost or loss to the owners of a building subject to a building code cannot of itself deprive a municipality of the right to exercise the police power, it nevertheless is a factor which the appropriate court may consider in determining whether a given state of affairs is a nuisance in fact which should be abated. In the case of Adamec v. Post, 273 N.Y. 250, 7 N.E.2d 120, 122-123, 103 A.L.R. 1110, this situation is thus discussed: 'Conformity to such standards may cause additional expense to owners of land and result in increase to owners of thus cause incidental hardship to tenants who have small incomes. Nevertheless the Legislature has power to prohibit the use of land for the errection of buildings, to be used for housing, which provide a accommodations below such standards. The power of the State to place reasonable restrictions upon the use of property for the promotion of the general welfare is no longer subject to challenge and regulations governing the erection or use of buildings as multiple dwellings which are reasonably calculated to safeguard the public health and safety constitute a proper exercise of that power. Cf. Adler v. Deegan, 251 N.Y. 467, 167 N.E. 705. 'This court has said that there is no difference of principle but 'only of circumstance' between a legislative enactment of 'conditions upon complying with which the owner might be permitted to erect a structure within the limits of a city or village or for certain purposes, and the enactment of provisions which would necessitate the alteration of structures already in existence.' In both cases the enactment is an attempted exercise of the police power 'in order to secure the general comfort and health of the public' and in both cases the use of his property by the owner is 'circumscribed and limited, what might otherwise be called his rights are plainly interfered with, and the justification therefor can only be found in this police power.' Health Department of City of New York v. Rector, etc., of Trinity Church,145 N.Y. 32, 45, 39 N.E. 833, 837, 27 L.R.A. 710, 45 Am.St.Rep. 579. 'Difference 'of circumstance' may, nevertheless, be an important factor in determining whether a particular regulation is reasonable. A small additional cost in erecting a new building in conformity with a regulation calculated to 'secure the general comfort and health of the public' even in a matter, perhaps, not of vital importance, may be reasonably justified by the result to be attained, while the cost of alteration of an old building to conform to such a regulation may be too great to be reasonably require for a doubtful or slight public benfit. Then, too, costly alterations may be economically impractical for old buildings, perhaps deteriorated by years of use, perhaps obsolescent, perhaps in neighborhoods no longer suitable for dwellings. In such case a requirement of such alterations may result in discontinuance of the use of such buildings with consequent loss of revenue to the owner of the building, and perhaps hardship to the tenants who must move out and find other quarters, where, in return for better dwellings, they may be compelled to pay higher rents 'These are matters which are primarily the concern of the Legislature and must reasonably affect its judgment as to what differentiation should be made between regulations for the construction of buildings presently to be erected and provisions necessitating alterations in old buildings constructed in accordance with standards formerly approved but now discarded as inadequate. Even so, as the court pointed out in Health Department of City of New York v. Rector, etc., of Trinity Church, supra, 145 N.Y. 32, at page 41, 39 N.E. 833, 836, 27 L.R.A. 710, 45 Am.St.Rep. 579, the discretion of the Legislature is not absolute. 'The improvement or work must in itself be a reasonable, proper and fair exaction when considered with reference to the object to be attained. If the expense to the individual under such circumstances would amount to a very large and unreasonable sum, that fact would be a most material one in deciding whether the method or means adopted for the attainment of the main object were or were not an unreasonable demand upon the individual for the benefit of the public.' In the same case the court quoted with approval from the opinion of Mr. Justice Holmes, speaking for the Supreme Court of Massachusetts in Rideout v. Knox, 148 Mass. 368, 19 N.E. 390, 2 L.R.A. 81, 12 Am.St.Rep 560: 'It may be said that the difference is only one of degree; most differences are when nicely analyzed. At any rate, difference of degree is one of the distinctions by which the right of the legislature to exercise police power is determined. Some small limitations of previously existing rights incident to property may be imposed for the sake of preventing a manifest evil; larger ones could not be except by the exercise of the right of eminent domain.''
Unquestionably, the burden that would be placed upon Mr. Miller by effecting the changes in the Padre Hotel ordered by the city's building inspector would in amount be confiscatory. Mr. Miller, as owner, expressed on the witness stand his view that the reasonable market value of the hotel building at the time of trial was $100,000. The witness Hoerner, an architect and structural engineer who had studied the building, testified that a conservative estimate of the cost of necessary remodeling required by the employees of the city would be $68,129, and that this would cover only the demands made and would not be acceptable as a proper finish of the building from the standpoint of economic utility. He further testified that if the defendants had accepted the alternative of a sprinkling system, its minimum cost would be $54,600; and to restore the economic value of the hotel by new ceilings, relocation of light fixtures and other necessary work, the cost would run to $120,690. Mr. Miller testified that if the transoms in the building were closed it would be necessary to expend $100,000, or more, to install a new airconditioning system rather than to retain the present evaporative type, because the circulation of the air would be reduced to a point where it would be unbearable to occupy the rooms through the summer months. He pointed out that the hotel was losing almost $30,000 a year, and was just about paying taxes and interest charges. The witness, Hoerner, testified that the overall cost of the installation of a central airconditioning system would be $213,000.
With these factors in mind, let us turn to a close analysis of the pleadings. Just what is it that the city is trying to do in this particular case? Is there an allegation of the existence of a nuisance in fact? The answer is positively 'No.' The complaint and answer, the pretrial order, and the findings all demonstrate that the suit is based upon the admitted failure of the defendants to carry out all of the suggested changes made by the city building inspector.
The complaint does not purport to be a suit to abate a nuisance as is contemplated by the sections of the State Housing Law incorporated in the Health & Safety Code. Section 17910 et seq., of the Health & Safety Code provide that if any building is maintained in violation of any provision of the code, '* * * or if a nuisance exists in any building or upon the lot on which it is situated, the enforcement agency shall after 30 days' notice to abate such nuisance institute any appropriate action or proceeding to prevent, restrain, correct, or abate the violation or nuisance' (Health & Saf. Code, § 17980); the appropriate court, namely, the superior court, may respond to the action of an enforcement agency by granting the relief sought in the proceeding, and may make any order for which application is made pursuant to sections 17980 to 17995, inclusive, including temporary relief, and an order to remove the violation or abate the nuisance (§§ 17981, 17982, and 17983, Health & Saf. Code).
The complaint, filed September 1, 1961, relies for an injunction wholly on alleged breaches by the Padre Hotel of provisions contained in the appendix to volume 1 of the 1958 edition of the Uniform Building Code. Paragraphs VII to XII of the complaint allege that the interior stairways of the hotel are not enclosed with walls of not less than one-hour fire resistive construction as required by section 1309(f) of the Uniform Building Code; that the fire escapes on the building do not extend to the ground, nor are they provided with counterbalanced stairs as required by section 1309(h); that the elevator shafts and duct shafts are not enclosed as required by section 1309(k); that the hotel contains transoms and openings other than doors which are not fixed closed and covered with a minimum of three-fourths-inch plywood, as required by section 1309(i); that the building contains a bolier room or heater room in the basement which is not separated from the rest of the building by a four-hour fire resistive occupancy separation as required by section 1309(l); and that the hotel contains doorway exits or changes of direction of corridors that are not marked with well-lighted exit signs in letters at least five inches high, as required by section 1309(j) of the appendix of the Uniform Building Code. The complaint prays that the court determine that the Padre Hotel is an unsafe building, that the defendants be ordered to commence the correction of said violations, within a reasonable time, that the defendants be ordered to vacate the hotel, and to cause all tenants to leave the premises until the violations are corrected. There is no allegation that the building as conducted by the defendants is a nuisance in fact.
The answer admits that the defendants have not conformed with all the requirements of the appendix but denies the other major allegations of the complaint, and it sets up affirmative defenses as follows:
That, contrary to the Constitutions of the United States and of the State of California, the effect of the ordinance adopting the Uniform Building Code will be to deprive the defendants of their property rights without due process of law and the equal protection of the laws; that the ordinance is, therefore, 'oppressively discriminatory and unreasonable as against said answering defendants * * * that it is void and unenforceable; and places an unequal burden upon said defendants and is grossly oppressive, unreasonable and unlawful, and discriminates against said answering defendants * * * in the operation of their hotel business.' It is further alleged in the first special defense that the ordinance discriminates against defendants in favor of the owners of 13 other hotel buildings; that the work on the Padre Hotel demanded of defendants would '* * * require expenditures of such extent as to be confiscatory in effect,' and 'plaintiff is proceeding under an ex post facto law'; that the plaintiff requires closures of stairways upon the property of defendants, which are not in fact necessary for other hotels and rooming houses which would be subject to said ordiance; that there is further an attempt to discriminate in that the classification of hotels and the required construction thereof differ materially and unfairly, and that plaintiff seeks an adjudiciation that the building constitutes a public nuisance without a trial or judicial determination of such fact, and thus is a denial of due process of law; that the ordinance provides for a board of appeals and that there is granted to such board an unconstitutional delegation of legislative and judicial functions to the extent that said board may vary the interpretation of the code, and said ordinance is lacking in specific and clear standards as to building requirements.
A second affirmative defense is set forth on behalf of Mr. Miller to the effect that the ordinance is unconstitutional and void insofar as it affects the defendants in that the provisions thereof have already been incorporated in the laws of the State of California in such detail as to exclude further action for legislation thereon by plaintiff, such provisions being set out in the Health & Safety Code; that the provisions of state laws are without the intent that they shall be applicable to apartment houses or hotels constructed before the enactment of the applicable provisions of the Health & Safety Code; that the requirement of automatic sprinkler systems in bolier rooms are exclusively controlled by the provisions of the California Health & Safety Code in that the state law provided that sprinkler systems should not be required in basements containing less than 1800 square feet, and that boiler rooms, central heating rooms, and bank vaults were excluded therefrom, and in said respect there is no compartment or room in the Padre Hotel of more than 1800 square feet; it further claimed by reason of the enactment of sections in the Health & Safety Code, that California has passed legislation pertaining to fire protection in hotels and apartments to the exclusion of, and in conflict with, any legislation by plaintiff, and that, therefore, ordinance No. 1242 of Bakersfield is unconstitutional and void by reason of the provisions of article XI, section 11 of the Constitution of California.
A third affirmative defense is that if the ordinance is found to be valid, contrary to appellant's contention, a mandatory injunction as requested by the plaintiff would be inequitable in that it could not properly apply to any floor of the hotel below the second.
The pretrial order does not include as an issue the question whether the hotel constitutes a nuisance in fact; the findings follow in form the allegations of the complaint, saying that owners and managers of the Padre Hotel have failed to comply with the specific provisions of the appendix to the 1958 edition of the Uniform Building Code. The findings continue by holding generally in broad conclusion that there has been no differentiation in connection with the insistence of the local authorities that the ordinance relative to fire safety be obeyed by all persons owning hotels. The conclusions of law are to the same effect; No. 9 of the conclusions of law is 'that the Padre Hotel in the matters complained of in the complaint is a public nuisance.' (Italics added.) Obviously, the allegations of the complaint relative to breaches of the rules contained in the Uniform Building Code appendix are referred to.
The final judgment provides as follows: 'IT IS ORDERED AND ADJUDGED: on its complaint as to all stories above the second floor. '2. Upon compliance with the provisions of the Uniform Building Code respecting the Padre Hotel, or upon cessation of the use and operations of floors three to eight, inclusive, as a hotel or apartment use, the 'Unsafe for Occupancy' signs shall be removed by city. '3. That defendants take nothing on the cross-complaint. '4. Costs of suit to plaintiff.'
The case presents an essential conflict between the rights of individuals as property owners and the necessities of the community by reason of the growth of the state and the increased complexity of daily life. There can be no doubt that the organized community must face the changed conditions of living, and that management must be provided for the diverse and complicated affairs of the community. This is what is attempted by the enactment of ordinances throughout the state setting up the several volumes of the Uniform Building Code. The chief desideratum of such an ordinance obviously is that new buildings in the community should conform to modern methods of construction, and that to a somewhat limited extent old buildings should be remedied in conformity with the latest construction methods. However, there must be due regard, within reasonable limits, for the rights of individuals who have either built or bought older buildings. Repairs made on such buildings should reasonably conform with the latest methods of construction and maintenance, but to require all buildings to meet standards which are decidedly changed from earlier standards would often be to cause a forfeiture of the investment involved and the practical destruction of such older buildings even though they did not constitute a nuisance in fact. There must be a common-sense weighing of the conveniences, and such meticulous requirements for improvement cannot properly be enforced, in the absence of reasonable necessity, so as virtually to rob the owners of their property. (Matter of Stoltenberg, 165 Cal. 789, 792-794, 134 P. 971.) The Uniform Building Code itself shows the clash of these differing requirements as applied to permits for new construction, and to the continuance of old buildings. In Markwalder v. Leonhard, 152 Cal.App.2d 254, 258, 313 P.2d 200, 203, it is said: 'It has been held as a general rule that building code provisions are not retroactive.'
(See also Schumann v. C. R. Reichel Engineering Co., 187 Cal.App.2d 309, 314, 9 Cal.Rptr. 486.) The main portion of the code purports to apply to all buildings in the city, irrespective of whether they have conformed with all previous building laws at the time they were constructed. In the appendix, however, it is stated that the requirements apply only to old buildings.
In the Uniform Building Code, it is said that failure to observe the standards set up in the code would constitute the buildings public nuisances. However, the mere statement in a city's building ordinance that some condition is a nuisance does not necessarily make it a nuisance as a matter of law, binding on the courts.
It is true generally that a legislature or the council of a municipality (37 Am.Jur., Municipal Corporations, § 292, pp. 933-934) may prescribe what is a nuisance (66 C.J.S. Nuisances § 7, p. 736, et seq.; People v. Lim, 18 Cal.2d 872, 118 P.2d 472; People v. K. Hovden Co., 215 Cal. 54, 8 P.2d 481). But a legislative body cannot create a nuisance by fiat, if it is not a nuisance in fact.
Conducting a hotel in a 'fireproof building' is not a nuisance per se; but, of course, such a building may become a nuisance in fact by reason of its locality, surroundings, dilapidation, or the manner in which it is operated. As to such things '* * * a municipal corporation has no power conclusively to declare them to be nuisances, but can only declare such of them to be nuisances as are so factually, because general authority to define and abate nuisances does not empower a municipality to declare that to be a nuisance which is not a nuisance in fact, or which is not a nuisance per se and does not come within the common-law or a statutory definition of a nuisance.' (37 Am.Jur., Municipal Corporations, § 293, pp. 936-937.)
In discussing an ordinance of the City and County of San Francisco relative to the burial of dead persons, which recites that such burials, within the City and County of San Francisco, are '* * * dangerous to life and detrimental to public health,' the Supreme Court had the following to say in Laurel Hill Cemetery v. City and County of San Francisco, 152 Cal. 464, 470-471, 93 P. 70, 72, 27 L.R.A.,N.S., 260: 'Such ordinances must, of course, bear a rational relation to the object sought to be attained. They may not be arbitrary or unreasonable. The exercise of the police power cannot be made a mere cloak for the arbitrary interference with or suppression of a lawful business. Holden v. Hardy, 169 U.S. 366, 18 Sup.Ct. 383, 42 L.Ed. 780. In re Smith, 143 Cal. 368, 77 Pac. 180. 'The Legislature may not, under the guise of protecting the public interests, arbitrarily interfere with private business, or impose unusual and unnecessary restrictions upon lawful occupations. In other words, its determination as to what is a proper exercise of its police powers is not final or conclusive, but is subject to the supervision of the courts.' Lawton v. Steele, 152 U.S. 133, 14 Sup.Ct. 499, 38 L.Ed. 385.'
It is further said in 37 American Jurisprudence, Municipal Corporations, section 293, at pages 937-938: 'There has been a tendency in municipal councils to imagine that by declaring a certain use of property to be a public nuisance all discussion is foreclosed, and by virtue of such declaration, the power of the municipality to suppress such use is unquestionable. Such a notion, however, rests upon a failure to distinguish between the different classes of subjects which may under some conditions fall within the category of nuisances.'
In Village of Des Plaines v. Poyer, 123 Ill. 348, 14 N.E. 677, it is pointed out that even though a municipality is given the power under a general act to declare what shall be a nuisance, it cannot declare a thing to be a nuisance which is not such in fact.
In Olson v. City of Platteville, 213 Wis. 344, 251 N.W. 245, 249, 91 A.L.R. 308, it was held that a court could not issue an injunction to uphold an ordinance of a city with regard to a moving picture theater when it was not in fact a nuisance; the opinion states: 'The cases relied upon by respondents, where the question of the right to an injunction by public authorities to enforce ordinances was involved, require the establishment of the element of nuisance as a necessary adjunct to the granting of such relief. This rule is appreciated by the learned counsel for the respondent, for he argues vigorously in support of the conclusion of the trial court that the building is within the fire limits of the city of Platteville, and by reason of its construction and present condition, its operation as a theater in violation of law is a nuisance. But it does not have the character of a nuisance per se. In President, etc., of Village of Waupun v. Moore, 34 Wis. 450, 17 Am.Rep. 446, an ordinance prohibited the erection of wooden buildings within certain specified limits and imposed a penalty for its violation. In denying the injunction it was there held that, because the building was not a nuisance, equity would not lend its aid to enforce by injunction the ordinances of a municipal corporation. The general rule is that unless an act is shown to be a nuisance per se, an injunction to aid in the enforcement of a city ordinance will not issue. In City of Janesville v. Carpenter, 77 Wis. 288, 46 N.W. 128, 8 L.R.A. 808, 20 Am.St.Rep. 123, in an action brought by the city to restrain the erection of a building in violation of a city ordinance, an injunction was also denied. The court there followed the same rule laid down in the Waupun Case. In Holzbauer v. Ritter, 184 Wis. 35, 198 N.W. 852, 853, where the principle was discussed, the court, in distinguishing the Waupun and Janesville Cases from the facts in that case, said: 'We do not think that these decisions go farther than to hold that a municipal corporation may not seek equitable relief to enforce its own ordinances. They have a perfectly adequate remedy at law by bringing actions to enforce the penalties prescribed.''
(See People ex rel. Friend v. City of Chicago, 261 Ill. 16, 103 N.E. 609, 49 L.R.A.,N.S., 438.)
The foregoing cases stand for the proposition that the mere fact that a thing is done in violation of the terms of a municipal building ordinance does not make it a nuisance per se. (39 Am.Jur., Nuisances, § 11, p. 292.) Whether a condition or thing, which may or may not be a nuisance, is in fact a nuisance, if controverted, must be settled in the appropriate court as one of fact. (39 Am.Jur., Nuisances, § 11, p. 291, note 13; Jezowski v. City of Reno, 71 Nev. 233, 286 P.2d 257, 52 A.L.R.2d 1127; 62 A.L.R.2d 123.)
In the treatment of the subject 'Nuisances' in 39 American Jurisprudence, section 13 at pages 294 and 295, the law relative to that subject in the light to constitutional principles is thus set forth: 'Limitations on Power; Judicial Review.--The power of the legislature over nuisances is subject to constitutional limitations. It is confined to the prohibition or regulation of those acts which injure or otherwise interfere with the rights of others. It cannot be made a cloak for confiscation or for withdrawing property from the protection of the law. The legislature has no power arbitrarily or capriciously to declare any or every act a nuisance, and cannot enlarge its power over property or pursuits by declaring them nuisances; nor can it by mere declaration make that a nuisance which is not so in fact and thereby destroy or prevent a lawful use of property. But statutes of this kind are not within the constitutional inhibition against impairing contract obligations, since parties who contract with respect to matters within the police power of the state do so subject to the exercise of that power whenever the legislature chooses to exercise it. The abatement of a nuisance is not a cruel and unusual punishment, and it is not essential that the legislative body prior to acting give a hearing on the matter. 'The action of the legislature in this regard is subject to review by the courts. What is a nuisance and whether the designation of a particular subject as a nuisance is within the legislative power are judicial questions. But a good deal must be left to the discretion of the legislature, and if the object to be accomplished is conducive to the public interests, it may exercise a large liberty of choice in the means employed, and only in extreme cases will the courts go behind the legislative determination. The legislature, however, usurps judicial power when it declares an act a nuisance when it is not so, and commands the court to enjoin it without proof that it will cause any injury or danger.'
(See also People v. Jones, 329 Ill.App. 503, 69 N.E.2d 522; City of Houston v. Lurie, 148 Tex. 391, 224 S.W.2d 871, 14 A.L.R.2d 61; Vermont Salvage Corp. v. Village of St. Johnsbury, 113 Vt. 341, 34 A.2d 188; 78 A.L.R.2d 1317, 1328; Smith v. Costello, 77 Idaho 205, 290 P.2d 742, 56 A.L.R.2d 1020.)
As applied to the present case, we draw the following conclusions from the applicable law:
(A) The mere statement in a municipal building ordinance that any breach of enumerated safety condition is a nuisance is not binding upon the courts;
(B) The superior court in the county where the alleged condition exists is the proper forum to determine whether an alleged nuisance per accidens is a nuisance in fact (Civ.Code, §§ 3479, 3480; Pen.Code, § 370);
(C) The court must not, independently of a determination of whether the alleged improper condition is in fact a nuisance, attempt to enforce by injunction the provisions of a city's building ordinance, which denounce certain described conditions as criminal offenses. In this latter situation, it is improper, generally speaking, for a city to attempt to enforce the criminal provisions of an ordinance of the type here involved through an injunction in the absence of an allegation and proof of the existence of a nuisance in fact. All of the situations that are forbidden in the ordinance purportedly constitute breaches of the criminal law, and presumably they may be prosecuted as such. In Monterey Club v. Superior Court, 48 Cal.App.2d 131, 146-147, 119 P.2d 349, it is pointed out that, as said in the earlier Supreme Court case of People v. Lim, supra, 18 Cal.2d 872, 879, 118 P.2d 472, 476: "Where the legislature has felt that the summary power of equity was required to control activity contrary to public policy, it has enacted statutes specifying that such activity constitutes a public nuisance which may be enjoined in an action brought on behalf of the state * * * '* * * but it is not the province of the courts to ordain such jurisdiction for themselves."'
In the Monterey Club opinion at page 146, 119 P.2d page 357, the following is stated: 'A court of equity will not undertake to enforce the criminal law. Weis v. Superior Court, 30 Cal.App. 730, 159 P. 464; People v. Seccombe, 103 Cal.App. 306, 312, 313, 284 P. 725. And the reason for such a rule under our form of government is clear, because as pointed out by the Supreme Court in the Lim case, supra, an individual accused of crime by way of prohibition or injunction would not only be required to prove his own innocence, but as well would be deprived of the right of trial by jury, the protection of the presumption of innocence and the doctrine of reasonable doubt; and in the final analysis, upon an order to show cause would be forced to become a witness against himself.'
It was not alleged in the complaint in this action that the maintenance of the Padre Hotel constituted a public nuisance; the basic allegations were to the effect that certain requirements of the ordinance containing criminal sanctions were not observed. The two California cases chiefly relied upon by respondent both involve public nuisances in fact. (Knapp v. City of Newport Beach, 186 Cal.App.2d 669, 9 Cal.Rptr. 90; Perepletchikoff v. City of Los Angeles, 174 Cal.App.2d 697, 345 P.2d 261.)
The City of Bakersfield had a right to pass the ordinance in question and to enforce it with respect to the issuance of permits for the construction of new buildings; it also has the right to seek to enforce the rules contained in the ordinance by criminal proceedings, if they have been disobeyed. But it has no right, in the absence of allegations and proof of a nuisance in fact, to get an injunction to close the hotel business or destroy the property in question, in whole or in part. (Civ.Code, § 3369, subd. 1; People v. Brophy, 49 Cal.App.2d 15, 120 P.2d 946; People v. Seccombe, 103 Cal.App. 306, 284 P. 725; Herald v. Glendale Lodge No. 1289, 46 Cal.App. 325, 189 P. 329; Nathan H. Schur, Inc. v. City of Santa Monica, 47 Cal.2d 11, 300 P.2d 831; Perrin v. Mountain View Mausoleum Ass'n, 206 Cal. 669, 275 P. 787; International etc. Workers v. Landowitz, 20 Cal.2d 418, 126 P.2d 609; Sullivan v. San Francisco Gas etc. Co., 148 Cal. 368, 83 P. 156, 3 L.R.A.,N.S., 401.)
It is obvious, also, that upon the hearing of a case to abate a nuisance in fact the court would have to determine whether the subject matter which the city sought to cover in the ordinance has been, in fact, taken under the exclusive control of the state. The provision of law (Health & Saf.Code, § 17951) permitting a municipality to enact building laws which impose restrictions which are equal to, or greater than, those adopted by the state, would necessarily present a question of law for the trial court to determine, namely, whether there was any right on the part of the municipality to legislate with respect to the particular subject under investigation. The state has greatly extended the area within which it purports to control building laws through title 8, sections 16216-17926, of the California Administrative Code, which cover a great area, and which may make inapplicable certain provisions of the Uniform Building Code as adopted by the Bakersfield ordinance.
In the cross-complaint filed by leave of court, the appellant attacked the action of the city in posting on the hotel premises, without a previous formal hearing, a notice that the hotel was unsafe for occupancy and directing the public to keep out of the building. The essential question on this phase of the case is whether the city's administrative officers, under the circumstances shown by the record, had the right, without a previous formal hearing, so to designate the entire premises.
Section 203(a) of the 1958 Uniform Building Code declares: 'All buildings or structures which are structurally unsafe or not provided with adequate egress, or which constitute a fire hazard, or are otherwise dangerous to human life, or which in relation to existing use constitute a hazard to safety or health, or public welfare, * * * as specified in this Code or any other effective ordinance, are, for the purpose of this Section, unsafe buildings.'
The section goes on to state that such an 'unsafe' building is a public nuisance, that all such buildings shall be abated with, or without, a public trial and that the appropriate city building official may place 'DO NOT ENTER--UNSAFE TO OCCUPY' signs on the entrance doors to any such building.
The appellant correctly points out that if, in a case like this, the city administrative officers can determine for themselves the questions involved without a formal hearing, then, through whim or caprice, or honest but mistaken zeal, they can force almost any hotel or apartment owner out of business.
We agree with the position of the appellant that the Fourteenth Amendment to the United States Constitution requires, as a normal preliminary to the posting of such signs in the circumstances developed by the present record, a hearing and a consequent finding on the evidence that the premises are in fact unsafe.
As is said in Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, an opportunity for hearing is one of the essential elements of due process. It cannot be said that an extreme emergency existed in the present case, such as would under the heading of 'urgent necessity' permit the omission of a proper hearing in the circumstances.
Morris Plan Co. v. State of California, 73 Cal.App.2d 415, 420, 166 P.2d 627, 629, holds: 'The due process clause in its procedural sense is a guarantee that before one may be deprived of property, a hearing must be had before a judicial or quasi-judicial body according to established rules of law.'
In 11 California Jurisprudence, Second Edition, Constitutional Law, section 313, page 788, this principle is thus stated: 'To constitute due process, a legal proceeding must give the parties adequate means of asserting their rights. To this end, due process requires that a tribunal that assumes to determine the rights of parties shall have jurisdiction over the parties and over the subject matter of the proceeding, and that the parties shall be given notice and an opportunity for hearing, before any order or judgment in the proceedings can be made by which they will be deprived of life, liberty, or property.'
In People v. Broad, 216 Cal. 1, 3, 12 P.2d 941, 942, it is said: 'Even where, as here, the statute declares that a forfeiture takes place at the time of the commission of the offense, such forfeiture is not fully and completely operative and effective, and the title of the state is not perfected until there has been a judicial determination. That judicial determination cannot be in an action in which the owner is not a party.'
And on pages 4 and 5, 12 P.2d pages 942, 943, the discussion is thus enlarged: 'A common-law or judicial forfeiture does not operate or take effect until by a proper judgment in a suit instituted for that purpose the rights of the state or government have been established. But in the case of a statutory or legislative forfeiture the forfeiture takes place on the commission of the offense. But, after the commission of the offense resulting in the forfeiture, the title of the state is inchoate or incomplete until such time as there is a judicial determination of the forfeiture. Neither the Legislature nor the courts can dispense with the constitutional requirement of a notice and hearing. 25 Cor.Jur. 1175, § 65 et seq. The only important difference between the two types of forfeiture is that in the case of the common-law or judicial forfeiture the rights of the state date from the judicial determination; while in the case of a legislative or statutory forfeiture the rights of the state, after such judicial determination, date back to the time of the offense, and cuts off even the rights of a bona fide purchaser. 'The point that a judicial determination is necessary in the case of a statutory or legislative forfeiture is well settled, both by the decisions of this court and by the decisions of the United States Supreme Court. In United States v. Stowell, 133 U.S. 1, at page 17, 10 Sup.Ct.Rep. 244, 33 L.Ed. 555, it is stated: 'By the settled doctrine of this court, whenever a statute enacts that upon the commission of a certain act specific property used in or connected with that act shall be forfeited, the forfeiture takes effect immediately upon the commission of the act; the right to the property then vests in the United States, although their title is not perfected until judicial condemnation; the forfeiture constitutes a statutory transfer of the right to the United States at the time the offense is committed; and the condemnation, when obtained, relates back to that time, and avoids all intermediate sales and alienations, even to purchasers in good faith.' In Traffic Truck Sales Co. v. Justice's Court, 192 Cal. 377, at page 383, 220 P. 306, it is stated: 'When a forfeiture of property is made absolute by statute the forfeiture must be deemed to attach at the moment the offense is committed. [Citations.] The adjudicated cases establish the rule beyond all doubt that the forfeiture becomes absolute on the commission of the prohibited acts, and that the title from that moment vests in the state. [Citation.] In case a prosecution of the offender ensues, and a decree of condemnation follows in a court of competent jurisdiction the decree relates back to the date of the wrongful acts alleged and proved at the trial or in the hearing of the cause. [Citation.] But the law requires proceedings to be instituted for the purpose of ascertaining the facts of the forfeiture [citation], and the inchoate title of the state to the goods forfeited is not fully consummated until after judicial condemnation has been had. [Citations.]''
While it is true that there are instances when overpowering urgency necessitates this type of rapid action by building officials, without a hearing, there should normally be a formal hearing where, as here, the building officials have delayed action for over ten years.
If it is alleged that the questioned building is, in fact, a nuisance which should be abated, the necessary judicial hearing for authorization to post the premises could take place in such a suit on an application for a preliminary injunction. At the very least, in the situation developed by the evidence, the city officials should not have acted as they did without a formal hearing on notice at which the hotel owners should have had the opportunity to attempt to meet the charges, to cross-examine witnesses, and to put on a case.
But, if section 203 of the ordinance is left wholly in the hands of city officers to enforce without a proper preliminary hearing, it delegates to administrative action the exercise of judicial, or semi-judicial, functions without the protection inherent in constitutional safeguards. The decree in the case should have so held.
Entirely apart from the foregoing considerations, the appellant correctly points out that the final judgment is so vague, uncertain, and indefinite as to offend the principles of pleading and practice applicable to the injunctive process (27 Cal.Jur.2d, Injunctions, § 81, pp. 205-207.) The conclusion 'That plaintiff recover judgment on its complaint as to all stories above the second floor' is an indeterminate order. The pleadings and evidence in the case show that the appendix to the building code provides for the doing of certain things but that the administrative officers of the city have directed something else as an allegedly valid alternative, namely, the installation of sprinklers in all rooms, closets, hallways and the absement of the hotel. The judgment departs from the prayer of the complaint, which requests that the defendants be directed to install certain improvements and that they be given time to do so. The vague and uncertain form of the final judgment, in and of itself, would be sufficient to require the reversal of the decree and the conduct of further proceedings in the case, if other elements in the suit had been proper.
The remedy on appeal, however, must be broader than any mere reformation of the formal judgment, for it appears that the City of Bakersfield has attempted to utilize the injunctive process to enforce the criminal provisions of building ordinance No. 1242, New Series, in a suit which does not claim the existence of a nuisance.
The motion of appellant to augment the record by the inclusion of his affidavit, dated August 14, 1964, on motion for a new trial, including the photographs attached as exhibits, is granted. The only question involved was whether the appellant had a right to move for a new trial because his counsel previously had made a similar motion which was denied after the filing of the first judgment on June 30, 1964. However, after the arguments on the first motion for a new trial, the court made an order that 'the Findings of Fact and Conclusions of Law and Judgment are Amended * * *,' and a second judgment was thereafter filed on July 23, 1964. As a result, it was proper for Mr. Miller after the retirement of his counsel to file a notice of intention to move for a new trial as he did on July 24, 1964. (Code Civ.Proc., § 662; Neff v. Ernst, 48 Cal.2d 628, 634, 311 P.2d 849.)
While appellant Miller's notice of appeal was filed August 24, 1964, he incorrectly states that he appeals from the judgment of June 30, 1964; in spite of Neff v. Ernst, supra, his notice was filed after the second judgment was filed on July 23, 1964, and under the rule of Collins v. City & County of S. F., 112 Cal.App.2d 719, 247 P.2d 362, will necessarily be construed to be an appeal from the second judgment.
The judgment is reversed.
STONE, J., concurs.
RALPH M. BROWN, J., not participating. --------------- * Assigned by Chairman of the Judicial Council.