Opinion
Civ. No. 321.
January 11, 1908.
APPEAL from a judgment of the Superior Court of Los Angeles County. N. P. Conrey, Judge.
The facts are stated in the opinion of the court.
James C. Rives, E. A. Meserve, Bicknell, Gibson, Trask, Dunn Crutcher, and Edward E. Bacon, for Appellants.
Hunsaker Britt, and James S. Bennett, for Respondent.
Appeal from a judgment of the superior court of Los Angeles county.
The board of supervisors of Los Angeles county, under the provisions of an act of the legislature approved March 13, 1883 (Stats. 1883, p. 93), upon the hearing of a petition signed by the requisite number of residents of the locality affected, and after determining that all preliminary notices had been given and election held as required by such act, made its order directing that all of the territory embraced within certain boundaries set out in said order "is a duly incorporated municipal corporation of the sixth class, under the name and style of the 'City of Wilmington.' " Petitioner, a resident and taxpayer of Los Angeles county and the owner of real property within said city, filed his petition in the superior court of Los Angeles county, alleging want of jurisdiction in the board of supervisors to order such incorporation, and praying said court for a writ of review, and that upon the hearing thereof said order be annulled. The superior court upon the hearing vacated and set aside said order of incorporation. From this judgment the defendants appeal.
The vital question involved upon this appeal, and the one upon which the judgment of the lower court was based, relates to the constitutionality of the act of the legislature passed in 1887 [Stats. 1887, p. 108], repealing a former act of February 20, 1872 [Stats. 1872, p. 108], entitled: "An Act to incorporate the town of Wilmington," as well as a certain act amendatory thereof. It is petitioner's contention that under the constitution the legislature could not repeal an act creating a municipality in existence at the date of the constitution, as such instrument guaranteed to municipal corporations organized theretofore the right of continuing their existence and of saving their form of government. Our supreme court in People ex rel. McConnell v. City of Wilmington, 151 Cal. 649, [ 91 P. 524], has determined that the guaranty referred to extends only to such municipalities as were organized before the adoption of the constitution and does not prevent legislation where the corporation, although previously created, has failed to organize as such. The matter of organization previous to the adoption of the constitution, then, became a fact to be heard and determined by the board of supervisors upon a hearing of the petition for incorporation. It had jurisdiction to hear and determine this question. If, as a fact, the town of Wilmington had not organized under the act of 1872, the act of 1887 became operative and the territory embraced within the petition was subject to the order of the board with reference to incorporation. Respondent's contention is that the action of the board of supervisors upon such hearing was judicial; upon that assumption the intendments in favor of the regularity of the judgment of such board, nothing to the contrary appearing, will presuppose the taking of testimony with reference to such previous organization. In our opinion, the board of supervisors was not without jurisdiction, and, so far as disclosed by the record, its order creating the municipality was warranted.
The judgment of the superior court is reversed.
Shaw, J., and Taggart, J., concurred.