Appendix — Rahmoeller v. California

f- Office-Supreme Court, U.S,

ot HIS p FJLED

dal © ae re

‘d TORT 7 19865

IN THE

Supreme Court of the United States es

October Term, 1965

No.6-5 3

ERVIN RAHMOELLER,

Petitioner,

VS.

PEOPLE OF THE STATE OF CALIFORNIA.

VOLUME II.

Appendix to Petition for a Writ of Certiorari to the

Superior Court of the State of California, in and

for the County of Los Angeles.

WItiiAMs & WILLIAMS,

612 South Flower Street,

Suite 409,

Los Angeles, Calif. 90017,

Attorneys for Petitioner.

Parker & Son, Inc., Law Printers, Los Angeles. Phone MA. 6-9171.

g

~ Memorandum Opinion and Judgment.

Appellate Department of the*Superior Court of the

State of California for the County of Los Angeles.

People of the State of California, Plaintiff and

Respondent, vs. Gardena Dairy Farms, et al, Defend-

ants, Irvin Rahmoeller (true name Ervin Rahmoeller),

Defendant and Appellant. Superior Court No. CR A

6222. Trial Court No. M 59687. :

Appeal by defendant Ervin Rahmoeller from -judg-

ment of the Municipal Court of the South Bay Judi-

cial District, William B. Keene, Judge. Affirmed. °

For Appellant—Messrs. Ernest George Williams and

James J. Williams.

For Respondent—Evelle J, Younger, District Attor-

ney, Harry Wood, Deputy District Attorney. :

Defendant Rahmoeller appeals from the judgment

pronotinced against him for a violation of Gardena

City Ordinance No. 482 (as adopted November 13,

1958), a misdemeanor, following a conviction by a jury

in a trial by jury.

Rahmoeller is not the owner of the land or buildings

and permanently affixed equipment on the premises

commonly known as 2013 Redondo Beach Boulevard,

in the City of Gardena, which are the premises in

question; he holds a leasehold interest scheduled to ex-

pire April 1, 1967, as a lessee (sub-lessee according to

his brief) of said premises. Both prior and subsequently

to the cutoff date of December 1, 1963, he continu-

ously owned and maintained a herd of approximately

180 cows, on a R-1 portion of an area zoned R-1 and

C-3, which was a nonconforming use until ‘said cut-

off date.

er ee

Defendant was convicted for violating that portion

of the zoning ordinance which provided in Section 2

thereof :

“That from and after December 1, 1963, it shall

be unlawful for any person, partnership or cor-

poration, as principal, agent, employee, or other-

wise, to maintain or cause to be maintained or kept

upon any premises in the City of Gardena, any

bulls, steers, cows, calves or any bovine animal

of any kind.”

The case, therefore, is not one dealing with a violation

of the usual type of criminal ordinance, but one that

comeerns a criminal sanction for the purposes of en-

forcing a zoning ordinance prescribing a five-year pe-

riod of amortization for the termination of a non-

conforming use, A condition of the summary proba-

tion granted: defendant was “all bulls, steers, cows and

bovine animals kept upon the- premises located at 2013

Redondo Beach Boulevard in the City of Gardena, are

to be removed in their entirety on or before, but not

later than, March 1, 1965.” It is distinguishable, there-

fore, from a constitutional attack upon a normal :police

ordinance such as that considered in People v. Amdur

(1954) 123 Cal. App. 2d Supp. 951, cited and relied

upon by the appealing defendant.

The trial court dismissed the action as to dutoatant

Gardena Dairy Farms, a corporation, when it de-

veloped in course of trial that its operations were con-

fimed to the maintenance of a store selling dairy prod-

ucts on the front of the premises in question, and that

the herd was owned and maintained by defendant Rah-

moeller, who had no financial interest in said co-defend-

ant corporation.

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Rahmoeller formally assigns as errors the following:

1. He was prejudiced by the trial court’s forbidding

his introduction of evidence before the jury that the

five-year period of amortization was unreasonable, ar-

bitrary and discriminatory.

2. As he was being prosecuted for a public nui-

sanee, the prosecution should have been laid under Pe-

nal Code Section 370 instead of under the ordinance.

3. <A local municipality is acting ultra vires where it

declares an industry operating in conformance with

state regulation and under state supervision a public

nuisance.

4. The prosecution has the burden of proving the

reasonableness of the five-year amortization period as

a part of the corpus delicti of the offense charged

Appellant Rahmoeller first raised the issues of pre-

emption and constitutionality that envelope the grounds

of error assigned by motions to dismiss, prior to the

selection of the jury. The motions were denied.

Aside from appellant’s claim that the ordinance was

invalid as local legislation intruding into areas covered

and preempted by state-wide statutes, the nub of his

grievance is that he was denied a collateral attack on

the constitutionality of the legislative action of the

City Council of the City of Gardena in finding as set

forth in Section 1, inter alia, that the maintenance of

a number of bovine animals within the city limits was

a nuisance and that a five-year period was.a reason-

able amortization period within which to terminate de-

fendant’s nonconforming use of operating a dairy and

maintaining a herd of approximately 180 cows at 2013

Redondo Beach Boulevard, in the City of Gardena.

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Appellant sought to execute his collateral attack by

producing witnesses who would testify before the jury

relative to the questions of whether defendant’s dairy

operation was conducted in a manner to constitute a

nuisance and whether the five-year period of amortiza-

tion was reasonable; and then to have the jury deter-

mine the issue of constitutionality, which the trial judge

forbade.

Assignments of error labelled 2 and 3 above are pred-

icated upon a theory of preemption by the State. These

may~be answered that this action is not a ‘prosecu-

tion for a public nuisance per se. The declaration by

the City Council in Section 1 of the ordisiance that

“the maintenance of animals as aforedescribed (any

numbers of bulls, steers, cows, calves or any bovine

animals within. the city limits) is a public nuisance”

is merely one of those incidental or foundational facts -

upon which -the City Council predicated its legislative

judgment that the five-year period of amortization of

the nonconforming use was reasonable. The mere fact

that nuisance is a factor in the enactment of zoning

ordinances does not convert litigation based on the or-

dinance into one for the abatement of a public nui-

sance. (See: Jones v. City of L.A. (1930) 211 Cal.

304, 316; Livingston Rock and Gravel Co. v. County

of L.A. (1954) 43 Cal.2d 121, 125.)

Provided that it meets the constitutional test of

reasonableness, a municipality can adopt zoning ordi-

nances rendering it impossible to conduct a business or

industry which is not in and of itself a nuisance, where

changing conditions of the community render it neces-

sary or advisable in the interests of health, safety, and

public welfare. (City of L.A. v. Gage (1954) 127 Cal.

Se ee

App.2d 442, 451, 453; Miller v. Bd. of Public Works

(1925) 195 Cal. 477, 487.)

Whether or not a certain use of land constitutes a

public nuisance is only one factor to be weighed in

determining what is a reasonable period for amortizing

a nonconforming use of that land. A rezoning regula-

.tion constitutionally may provide for an immediate ter-

mination of a nonconforming use if a planning com-

mission upon a public hearing, held upon notice, finds

nonconforming use to be “detrimental to the public

health or safety, or so as to be a nuisance” (Livingston

Rock etc. Co. v. County of L.A. (1954), supra, 43

Cal.2d 121, 128. See also: Hadacheck v. Sebastian

(1915) 60 L.ed 348, 356-357 (239 U.S. 394) affirm-

ing Ex parte Hadacheck (1913) 165 Cal. 416.)

The trial judge correctly ruled that reasonableness of

the five-year amortization period was neither a part of

the corpus delictt nor a question for the jury. In Wig-

more on Evidence (3rded.) Vol. IX, Sec. 2555 (d), p.

522, we find that:

“Where a LEGISLATIVE ACT is argued to

be UNCONSTITUTIONAL, and this-is to depend

upon the unreasonableness, or lack of possible rea-

sonableness, of the law in its purpose or operation,

and thus the external facts furnishing the pos-

sible legislative motive or the possible actual effect

must be considered, this. incidental question of

fact is not for the jury, but for the Court. Hence,

no testimony, of experts or others, would be ad-

mitted for the jury.” (Emphasis by italics added.)

Appellant’s counsel in contending that “reasonable-

ness is a question of fact” fails to recognize that this

a a

is not the ordinary question of fact, but is what Jus-

tice Tobriner characterizes as “a constitutional fact”

(Zeitlm ‘v. Arnebergh (1963) 59 Cal.2d 901, 910)

which “is a question of fact mixed with a determina-

tion of law”. And when we speak in the context of

what are the respective functions of judge and jury,

such questions of “constitutional facts” are a ques-

tion of law for the Court and not for the jury.

It has been well established that the question of the

constitutionality of a statute is a question for the court

and not for the jury. (People v. Love (1921) Sup.Ct.

Iil., 131 N.E. 809, 811 (298 Ill. 304, 16 ALR 703);

»\ Sisson v. Buena Vista County (1905) 104 N.W. 454,

458, 461 (128 Iowa 442); and see: Zeitlin v. Arne-

bergh, supra, 59 Cal.2d 901, 908-909; 16 Am.Jur.2d

(Const. Law) Sec. 171, p. 338.) In California it has

been held that the rules uf construction of statutes ap-

ply to the construction of ordinances (Evola v. Wendt

Construction Co. (1959) 170 Cal.App.2d 21, 24) and

that the construction of an ordinance is for the court

and not for the jury (Reid & Sibell v. Gilmore & Ed-

wards Co. (1955) 134 Cal.App.2d 60, 72). It has been

said that “(t)he constitutionality and construction of

a statute are matters of law” (People v. Kaufman

(1920) 49 Cal. App. 570, 572) and Penal Code Sec-

tion 1124 provides that matters of law arising in the

course of a criminal trial are for the court to decide.

Courts in other states have held also that the ques-

tion of the reasonableness of a zoning ordinance within

the framework of judge and jury functions constitutes

a question of law for the court and not for the jury.

(Long v. City of Corpus Christie (1958) Ct. of Civ.

App., Texas, 315 S.W.2d 24, 27, 28, 30; City of Dallas

euhis

v. Rosenthal (1951) Ct. of Civ.App., Texas, 239 S.W.

2d 636, 647; Duggins v. Bd. of County Com’rs. (1956)

293 P.2d 258, 259, 261, 262 (179 Kan. 101); O’Con-

nor v. City of Moscow (1949), Sup.Ct. of Idaho, 202

P.2d 401, 405, (69 Ida. 37).)

The ruling of the trial judge in denying the motions

to dismiss before the offer of any evidence was proper,

in view of the presumption of the validity of legisla-

tive and quasi-judicial actions which requires no ex-

tensive citafions of authority.

Defendant Rahmoeller’s request to have the jury

decide whether his dairy and herd maintenance opera-

tions constituted a nuisance and whether the five-year

period was a reasonable period of amortization, in the

light of the foregoing = ae is not supported by

the law.

This is adequate to affirm the lsias below with-

in the legal framework in which this appeal comes be-

fore us. However, because of gravity of the questions

involved (the welfare of the public in the City of Gar-

dena and the size of the amount claimed to be invested

by defendant), we have proceeded further to satisfy

ourselves that defendant Rahmoeller is not being un-°

fairly deprived of his day in court to have a judicial

determination of his claim of unconstitutionality of the

ordinance on the theory that the five-year period of

amortization was unreasonable.

We have further concluded that the trial judge was

correct in denying the motions to dismiss as a matter

of law upon the Gardena City Attorney calling to his

attention matters of which he is permitted to take judi-

cial notice. This legislation was grounded upon the au-

thority granted the City Council of the City of Gar-

ealiien

dena under Govt. Code Sections 65800 and 65807.

Since the defendant has no interest in the permanent

structures and improvements which normally call for

an extended period of amortization and his interest is

only that of a lessee (or sublessee as his counsel terms

him in his brief), the court noting only what is con-

tained in the four corners of Ordinance No. 482 could

quite properly have concluded that the ordinance was

valid as a matter of law in light of such ‘cases as:

City of L.A. v. Gage (1954), supra, 127 Cal.App.2d

442 (five-year amortization of a wholesale and retail

plumbing business held constitutional), In re Hadacheck

(1913), supra, 165 Cal. 416, aff’d. Hadacheck v. Sebas-

tian (1915), supra, 239 U.S.394, 60 L.ed. 348 (ordi-

nance prohibiting a pre-existing brickmaking business

following a finding that it was a nuisance upheld) ;

Livingston Rock etc. Co. v. County of L.A. (1954),

supra, 43 Cal.2d 121-°(immediate termination upon

planning commission hearing on notice that operation

was a nuisance held constitutional where plant cost of

$18,000.00 and $80,000.00 worth of mixer trucks were

involved); Spurgeon v. Bd. of Com’rs. (1957) 317

P.2d 798, 806 (181 Kan. 1008) (2-year amortization

for removal of automobile wrecking business held rea-

sonable; building and fixtures worth $18,000.00 and

moving expenses $4,500.00) ; Standard: Oil Co. v. City

of Tallahassee (1950) CCA 5th, 183 F.2d 411, cert.

den. 340 U.S. 892 (10-year amortization of gasoline

service station upheld); City of Seattle v. Martin

(1959) Sup.Ct. Wash., 342 P.2d 602 (54 W.2d 541)

(1-year period to discontinue usé of a lot for repair

of construction equipment upheld); and State ex rel.

Dema Realty Co. v. McDonald (1929) 121 So. 613,

616, 617 (168 La. 172), cert. den. 280 U.S. 556 (1-

22:

year period to terminate nonconforming use of, small

drug store upheld). And the court probably noted that

actually 6 years, 2 months, and 5 days had elapsed

from the date of adoption of the ordinance to the date

of trial.

The trial judge by judicial notice could have noted

that the findings of “nuisance” and “reasonableness”

of the five-year period in Section 1 of the ordinance

were well supported. He could have taken judicial no-

tice of the records of the City Planning Commission

disclosing consideration of the issues defendant seeks

to raise again. These records are kept pursuant to the

* mandate of the law. (Watson v. Los Altos School Dis-

trict (1957) 149 Cal.App.2d 768, 772-773; Govt. Code

Sec. 65402; Gardena Municipal Code Sec. 10-1.07).

The public records of the City Council concerning the

passage of this ordinance, including the many complaints

from inhabitants of Gardena on file therein, are also

subject to judicial notice. The trial court was entitled

to take judicial notice of what is general knowledge

within the limits of its territorial jurisdiction (People

v. Tossetti (1930) 107 Cal.App. 7, 10); of the in-

crease in population (Jn re Simpson (1923) 62 Cal.

App. 549, 555; People v. Spring Valley Co. (1952)

109 Cal.App.2d*656, 663); of such things as the need

for redevelopment (Redevelopment Agency v. Hayes

(1954) 122 Cal.App.2d 777, 806); and that the coun-

cilmen had personal knowledge of the physical condi-

tion of the premises concerned and the neighborhood

characteristics, which constituted independent evidence

in support of their findings (Siller v. Bd. of Super-

visors (1962) 58 Cal.2d 479, 484). Even if the trial

court did not in fact take judicial notice of the things

—1e—

or items noted above, this court upon review can do

so and give proper effect to such facts subject to judi-

cial notice. (Tahaferro v. County of Contra Costa

(1960) 182 Cal.App.2d 587, 592; People v. Tossetts

(1930), supra, 107 Cal.App. 7, 13.)

Against these judicially noticed facts buttressing the

findings of the City Council, the evidence proffered

by the defendant at most could only have created a

conflict in the evidence (assuming arguendo that a

municipal court is a proper forum for reviewing the

validity of legislative action adopting a zoning ordi-

nance; it certainly has no jurisdiction to issue an in-

junction pertinent to this case or extraordinary writs

mentioned above (C.C.P. Sec. 89)) in face of the well-

established law that a person attacking the reasonable-

ness of a zoning ordinance has the burden of proving

his claim (National Advertising Co. v. County of Mon-

terey (1962) 211 Cal.App.2d 375, 381; City of L.A.

v. Gage (1954), supra, 127 Cal.App.2d 442, 450) and

that where “the reasonableness of the ordinance is fair-

ly debatable, the legislative determination will not be

disturbed” by the courts. (Hamer v. Town of Ross

(1963) 59 Cal.2d 776, 783; Consolidated Rock etc.

_ Products Co. v.. City of L.A. (1962) 57 Cal.2d 515

522-523; Anderson v. City Council (1964) 229 Cal.

App.2d 79, 91, and Wilkins v. City of San Bernardino

(1946) 29 €al.2d 332, 338-339.)

Further in this case the Gardena Dairy Farms was

notified by letter from the Gardena City Attorney dated

March 29, 1963, and delivered March 30, 1963, that

bovine animals had to be removed from the premises

at 2013 Redondo Beach Blvd., by December 1, 1963,

by terms of Ordinance No. 482. Thereafter, the Gar-

=|

dena Dairy Farms through its attorneys requested an

extension of the amortization period beyond December -

1, 1963. The City Council held a hearing, upon notice,

to act upon the application for extension at which de-

fendant Rahmoeller was present in person and with

counsel (the same counsel as that for Gardena Dairy

Farms), and then denied the application. Defendant Rah-

moeller further received a written notice of this denial

of extension on November 30, 1963, from the Gardena

City Attorney; and the letter notice further reiterated

notice to remove the “cows, cattle and other bovine

animals .. . by midnight, December 1, 1963”.

Following this adverse decision of the City Council

and notice of its action, defendant Rahmoeller failed to

take any steps (as his counsel on oral argument ad-

mitted) open to him on direct appeal or review, where-

by he could have obtained a judicial ruling on the issues

now sought to be raised by him, by mandamus (Siller

v. Board of Supervisors (1962), supra, 58 Cal.2d 479),

by certiorari (Livingston Rock etc. Co. v. County of

£.A. (1954), supra, 43 Cal.2d 121, 128), by injunction

(Metcalf v. County of L.A. (1944) 24 Cal.2d 267), or

by declaratory relief (Consolidated Rock etc. Co. v.

City of L.A. (1962), supra, 57 Cal.2d 515) if the action

of the City Council is considered legislative action.

On the other hand, if the denial of extension is deemed

a quasi-judicial action then according to Fascination,

Inc. v. Hoover (1952) 39 Cal.2d 260, 265 and Jenner v.

City Council (1958), 164 Cal.App.2d 490, 499-500,

defendant is barred from introducing at a judicial re-

view hearing evidence not presented to the quasi-ju-

dicial body.

<

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But in any event, defendant Rahmoeller took no

‘action until the criminal complaint in this action was

filed against him on August 24, 1964; eight months

and six days later. Even at that late date, if he were ~

sincere in his belief of unconstitutionality, he could

have sought judicial review and relief by a writ of pro-

hibition in the superior court with a direct line of ap-

peal to the highest court of this state (Alves v. Jus-

tice Court (1957) 148 Cal.App.2d 419), but for reasons

best known to him and his counsel he chose not to do so.

It has been held in other states that where one fails

to take an available direct aj from a denial of an

extension of the period of a nonconforming use, he

cannot raise the issue of constitutionality of a zoning —

ordinance by collateral attack in a criminal misdemeanor

action in a court of limited jurisdiction. (Jannella .v.

Johnson (1948) Sup.Ct. of N.J. 56 A.2d 894, 896 (136

N.J. Law 514), aff’d. 61 A.2d 237 (137 N.J. Law

659), appeal dismissed 336 U.S. 932, 69 S.Ct. 749,

93 L.ed. 1092; and see: Commonwealth v. DeBaldo

(1951) 82 A.2d 578, 580-581 (169 Pa. Super. 363);

cf. Laque v. State (1955) 113 A.2d 893, 897 (207 Md.

242) cert. den. 350 U.S. 863, 76 S.Ct. 105, 110 L.ed.

765.) There are good policy reasons behind such a rule

which appears to have some recognition in California.

(See Zeitlin v. Arnebergh (1963), supra, 59 Cal.2d 901,

907.) Where the welfare of a large number of people

are affected and the amounts of property and invest-

ment involved exceed greatly the jurisdiction of the trial

court, it would appear to be good public policy to have

eo

ais

the issue of constitutionality of a zoning sbticomst

litigated in a court of general jurisdiction with a direct

line of appeal to the highest court of the state.

Some of the same policy considerations are probably

behind another rule that pertains to the various civil

remedies which were open to the defendant, and that is

that in civil proceedings, the general rule is that the

question of the constitutionality of a statute or an ordi-

nance must be raised at the earliest possible moment,

or else it is deemed waived, (Jenner v. City Council

(1958), supra, 164 Cal.App.2d 490, 498; Preston’ v.

Mumictpal Court (1961) 188 Cal.App.2d 76, 82; Hershey

v. Reclamation District sed, 200 Cal. 590, 564; 11

Cal: Jur.2d 404.) -

The City Council records further reflect that an at-

torney, Sidney Bleifeld, representing both the Gardena

Dairy Farms and the Meadow Park Dairies presented

defendant’s side of the case before the City Planning

Commission on August 19, 1958, and then appeared

before the City Council of the City of Gardena on Octo-

ber 14, 1958, when it was conducting a hearing with ref-

erence to the adoption of the five-year amortization

period. The records reflect that he stated in part at that

time:

. with reférence to the proposed Ordinance pfo-

Mouncing the ‘death sentence’, a period of five

years 1s more reasonable than the original three

years proposed. However, the existing leases on

the two dairies should be taken into consideration,

which in one instance is for eight years. . . .”

(Emphasis added.)

onion

From this it may be inferred that the Gardena Dairy

Farms had bargained for and obtained a five-year per-

iod in lieu of the three-year period originally proposed,

amd having received this five-year reprieve they ac-

cepted its benefits and took no further action towards

a judicial determination. One who accepts the benefits

of a statute, even if it be unconstitutional, is estopped

from later questioning its constitutionality (Higbie v.

County of L.A. (1941) 47 Cal.App.2d 281, 289; Hershey

v. Reclamation District (1927), supra, 200 Cal. 550,

564; 11 Cal. Jur.2d 405; and see: County of Sacramento

vw. City of Sacramento (1946) 75 Cal.App.2d 436, 447-

449), which in this case defendant sought to do by col-

lateral attack in a court of limited jurisdiction 6 years,

2 months and 5 days after the adoption of the ordi-

mance and under which it received sanctuary for five

years. It will be approximately six years and nine

months when the judgment of this court becomes final.

Defendant Rahmoeller made no representation that he

did not have notice of the proceedings leading to the

adoption of the ordinance in questiom nor of its con-

tents which were published in the Gardena Valley News

as was required by Govt. Code Section 50021.

We conclude, therefore, that defendant Rahmoeller

has not been unfairly deprived of his day in court in

which to litigate the issues of constitutionality and

reasonableness of the amortization provisions of Ordi-

‘mance 482 the City of Gardena, and its section 2 under

which he was convicted. The economic detriment to the

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—15--

defendant is regrettable but it is the usual concomitant

with almost every exercise of the police power as ap-

pellate courts have reiterated in their opinions ever since

zoning law litigation has become common.

The judgment is affirmed.

Dated July 22, 1965.

Aiso, Presiding Judge

We concur:

Faries, Judge

Breitenbach, Judge ~~