The opinion
CARTER, J.
I dissent. In my opinion the judgment should be affirmed without modification. The ordinance adopted on March 16, 1948, was unquestionably void. The majority opinion, in effect, so holds. Then why should not the trial court have so declared and by its judgment direct that it be vacated and set aside? Certainly a void ordinance is not immune from judicial review, and where such an ordinance is adopted in direct defiance of an order of the superior court, that court should have the power to direct that it be set aside and vacated. It seems hypertechnical to me to say that a court may declare that a legislative body has no power or authority to adopt an ordinance, and yet may not declare such ordinance void and direct that it be set aside. By what legerdemain is such a conclusion reached? Here we have an ordinance based not only upon a finding contrary to the undisputed facts before the council, but one adopted in direct violation of an order of the trial court. It is plainly obvious that since the city council had no authority under the statute but to find in accord with the undisputed fact that petitioner’s protest was sufficient, there could be no possible legal basis for the adoption of the annexation ordinance, and certainly no ill result can follow from the mandate of the court that it be set aside. I cannot, therefore, see any basis whatsoever for the holding of this court that the “judgment is modified by striking therefrom the provision commanding the defendant to set aside the ordinance. ’ ’
The majority opinion is written apparently with the thought in mind of avoiding the legal proposition involved in Santa Clara County v. Superior Court, 33 Cal.2d 552 [ 203 P.2d 1 ], as this case is not cited. While factually the cases are different, the same basic legal theory is applicable to both cases, and if the rule of the Santa Clara County case were applied to the case at bar, the judgment here would have to be reversed. The Santa Clara County case held that the court had no jurisdiction to interfere with the legislative process, except to prevent incurring of expense by the legislative body for an unlawful purpose, until such legislative *669 process was completed, and then quo warranto was the only remedy. Hr. Justice Schauer and I dissented in that case, and it is obvious that the majority have now departed from the holding in that case without even mentioning it.
In my opinion the judgment in the case at bar is eminently sound and should be affirmed.
Schauer, J., concurred.