This is an appeal from a judgment dismissing a petition for writ of mandate after the trial court sustained a general demurrer thereto without leave to amend.
The petition was filed April 28, 1970, by Leonard O'Keefe, Helen Hagedorn and Ernest Hagedorn.
The petition contained four causes of action. In the first cause of action petitioners alleged: they were residents of the county and of the Sanitation District; the Hagedorns owned real property in the district, while O'Keefe owned no real property within the county; the Sanitation District is located entirely within the boundaries of the county, and does not contain any territory which is located in a city or in another sanitation district; the members of the county board of supervisors are elected from supervisorial districts throughout the county, and they also serve as the board of directors of the Sanitation District; the districts of four of the supervisors are not within the boundaries of the Sanitation District, and the district of the fifth supervisor is only partially within the Sanitation District; the population of the district is approximately 10 percent of the population of the county; the residents of the Sanitation District are not allowed to vote for the directors of the district, but "only for one seat on the County Board of Supervisors."
In the second cause of action it was alleged: the board of directors of the Sanitation District approved an assessment bond to provide funds for a sewerage collection facility within the district; the bonds were approved pursuant to the Municipal Improvement Act of 1913 (Sts. & Hy. Code, § 10000 et seq.) and the Improvement Bond Act of 1915 (Sts. & Hy. Code, § 8500 et seq.), which do not provide that the matter be submitted to the voters, but only that written protests to the proposed improvement or assessment may be filed by property owners at a hearing on the improvement; petitioner O'Keefe was denied the right to protest because he did not own real property within the district; defendants planned to sell assessment bonds in the amount of $3,010,869.07 on April 29, 1970, and thereafter to proceed with the improvement project, "in violation of the constitutional rights of petitioners."
In the third cause of action petitioners alleged: on October 3, 1967 a
In the fourth cause of action it was alleged: on January 26, 1970 the five individual defendants, acting as the county supervisors, loaned $110,000 of the county general fund to the Sanitation District for the purpose of paying for engineering reports concerning the assessment bonds; said loan was illegal "as a conflict of interest," in that defendants acted as the county supervisors in making the loan and as the directors of the Sanitation District in accepting and spending the funds.
On the basis of these allegations, petitioners sought a writ of mandate commanding defendants: (1) to reapportion the Sanitation District; (2) to halt the sale of the assessment bonds and "all proceedings" relating thereto; (3) to return the $250,000 to the general obligation bond fund, and use such sum for the purposes voted upon; (4) to repay to the county general fund the $110,000 loaned to the Sanitation District; and (5) to resign either as county supervisors or as directors of the Sanitation District.
On April 29, 1970, the trial court issued an order to show cause why a peremptory writ of mandate should not issue (Code Civ. Proc., § 1088). The matter was heard on May 1st and submitted for decision. On that same date a demurrer was filed
On May 18, 1970, the court sustained the demurrers without leave to amend on the grounds that none of the causes of action stated facts sufficient
Petitioner O'Keefe appeals from the judgment. (Code Civ. Proc., § 904.1 subd. (a); Berri v. Superior Court (1955) 43 Cal.2d 856, 860 [279 P.2d 8]; Rudolph v. Fulton (1960) 178 Cal.App.2d 339, 343 [2 Cal.Rptr. 807].) He contends the trial court "committed reversible error" in sustaining the demurrers without leave to amend. Accordingly, we must determine (1) whether any of the counts in the petition stated facts sufficient to constitute a cause of action (Code Civ. Proc., § 430, subd. 6); and (2) if no causes of action were stated, whether the trial court abused its discretion in denying leave to amend (Code Civ. Proc., § 472c).
First Cause of Action
Appellant contends this procedure violates the "one man, one vote" principle, as applied to the election of local officials in Hadley v. Junior College District (1970) 397 U.S. 50, 56 [25 L.Ed.2d 45, 50-51, 90 S.Ct. 791]: "[A]s a general rule, whenever a state or local government decides to select persons by popular election to perform governmental functions, the Equal Protection Clause of the Fourteenth Amendment requires that each qualified voter must be given an equal opportunity to participate in that election, and when members of an elected body are chosen from separate districts, each district must be established on a basis that will insure, as far as is practicable, that equal numbers of voters can vote for proportionally equal numbers of officials."
The board of directors of a county sanitation district is not elected. Rather, the members of such board are designated in Health and Safety
Since the board of directors is not chosen by election, the "one man, one vote" principle is not applicable to compel reapportionment of the board. (Sailors v. Kent Board of Education (1967) 387 U.S. 105 [18 L.Ed.2d 650, 87 S.Ct. 1549].) Appellant argues that the principle nevertheless is applicable under the facts alleged, because the county board of supervisors is elected
In Sailors, the United States Supreme Court held there was no constitutional infirmity in a system whereby the members of a county board of education were chosen, not by the electors of the county, but by delegates from local school boards who were elected by popular vote of the residents of the local school district. The court first determined that the county board of education performed substantially administrative functions which, while important, "are not legislative in the classical sense." (387 U.S. at p. 110 [18 L.Ed.2d at pp. 654-655].) The court then concluded (387 U.S. at p. 111 [18 L.Ed.2d at p. 655]): "At least as respects nonlegislative officers, a State can appoint local officials or elect them or combine the elective and appointive systems as was done here.... Since the choice of members of the county school board did not involve an election and since none was required for these nonlegislative offices, the principle of `one man, one vote' has no relevancy."
The powers of a county sanitation district are defined in Health and Safety Code section 4738 et seq. (art. 4 of the County Sanitation District Act, Health & Saf. Code, § 4700 et seq.), and include: (1) the power to acquire and dispose of property (§§ 4740, 4743); (2) the power to construct and complete sewage collection, treatment and disposal works (§ 4741); (3) the power to issue bonds (§ 4746); (4) the power to levy taxes to meet the obligations evidenced by its bonds, "to maintain the works
Thus, although a county sanitation district has a limited power to adopt ordinances, its functions are primarily administrative, or executive, rather than legislative.
Appellant further contends section 4730 is unconstitutional because it denies the residents of the district a republican form of government as guaranteed by article IV, section 4, of the United States Constitution.
The general demurrer to the first cause of action was properly sustained because it does not state facts sufficient to constitute a cause of action
Second Cause of Action
Respondents contend the demurrer to the second cause of action was properly sustained because that cause was barred by the statute of limitation
Appellant argues that section 10400 is not applicable because it relates to an action contesting the validity of an assessment, whereas, appellant avers, in his second cause of action he is contesting the validity of the bonds. However, his pleaded attack is based only upon his claim that the assessment was invalid because he was not permitted to protest it. The bonds were issued to represent and be secured by the assessments made to pay the cost of the improvement (Sts. & Hy. Code, § 8570); and the bonds or the
In considering the sufficiency of the petition as against the demurrer, the trial court was not restricted to matters appearing on the face of the petition, but was entitled to read into it any matter which could be considered under the principle of judicial notice. (Code Civ. Proc., §§ 430, 431.5; Weil v. Barthel (1955) 45 Cal.2d 835, 837 [291 P.2d 30]; Saltares v. Kristovich (1970) 6 Cal.App.3d 504, 510 [85 Cal.Rptr. 866]; Colvig v. RKO General, Inc. (1965) 232 Cal.App.2d 56, 63 [42 Cal.Rptr. 473]; Agostini v. Strycula (1965) 231 Cal.App.2d 804, 806 [42 Cal.Rptr. 314].) In the demurrer, respondents alleged that the second cause of action was barred by section 10400, and requested that the court take judicial notice of "Resolution 70-72 of the Board of Supervisors of the County of San Luis Obispo, dated February 9, 1970, confirming the assessment...."
Such a resolution is a matter of which a court may take judicial notice. (Evid. Code, § 452, subd. (b) and comment thereto by Assembly Committee on Judiciary; Evid. Code, § 200; Jordan v. County of Los Angeles (1968) 267 Cal.App.2d 794, 798 [73 Cal.Rptr. 516].) Here, the trial court was required to take judicial notice because respondents requested it, gave appellant sufficient notice of the request and furnished the court with sufficient information to enable it to take judicial notice.
Resolution No. 70-72 of the County of San Luis Obispo, Atascadero Assessment District No. 1, is entitled "Resolution Confirming Assessment and Ordering Proposed Improvement to Be Made; Providing for Notice of Recording of Assessment; and Designating the San Luis Obispo County Treasurer to Collect and Receive Money." In this resolution, adopted February 9, 1970, the board confirmed the assessment, adopted the report of the county hydraulic engineer (Sts. & Hy. Code, §§ 10203, 10204) and ordered the improvement to be made.
Since the assessment was levied by adoption of this resolution and the petition was filed more than 30 days thereafter, the general demurrer to the second cause of action was properly sustained because it was barred by section 10400.
Third Cause of Action
Money derived from the sale of bonds authorized by the electors for a specific purpose must be applied exclusively to such purpose; they cannot be diverted or used for another purpose. (Health & Saf. Code, §§ 4792, 4793; Uhl v. Badarracco (1926) 199 Cal. 270, 284 [248 P. 917]; California Highway Com. v. Ballard (1926) 77 Cal.App. 404, 413 [247 P. 527]; 2 Ops.Cal.Atty.Gen. 260 (1943).) Therefore, a cause of action was stated, and the demurrer to the third cause of action should have been overruled.
Neither party has discussed whether plaintiff has alleged facts giving him standing to compel repayment of the transferred funds; we therefore do not consider that on this appeal. If, after remand, it should appear that the third cause of action is not moot, as respondent claims, plaintiff may wish to amend his complaint and the court may consider its sufficiency as amended.
Fourth Cause of Action
In this cause of action it was alleged: respondents loaned $110,000 of the county general fund to the Sanitation District to pay for the preparation of reports relating to the assessment bonds; the loan was "illegal and void as a conflict of interest," in that respondents acted as the county board of supervisors in making the loan and as the board of directors of the Sanitation District in accepting and spending the funds. Demand was made for immediate repayment of the loan to the county general fund.
In his opening brief, appellant concedes "The fourth cause of action is now moot in that the loan complained of has been repaid by the Atascadero County Sanitation District." Under such circumstance we see no reason to give consideration to that count.
Did The Trial Court Abuse Its Discretion in Denying Leave To Amend?
Since the third count stated facts sufficient to constitute a cause of action, or might be amended so to state, the judgment dismissing the petition must be reversed. (See Steiner v. Rowley (1950) 35 Cal.2d 713 [221 P.2d 9].)
The judgment is reversed with directions to overrule the demurrer as to the third cause of action, only, and allow respondents time in which to answer. Each side is to bear its own costs of appeal.
Files, P.J., and Jefferson, J., concurred.
A petition for a rehearing was denied December 17, 1971, and appellant's petition for a hearing by the Supreme Court was denied January 26, 1972.
At the hearing on the order to show cause, held May 1st, counsel for respondents argued that the action was barred by section 10400, and requested that the court take judicial notice of Resolution No. 70-72, stating that it could be found "in the files of the District."