Mallon v. City of Long Beach

TRAYNOR, J.

Plaintiff and plaintiff in intervention appeal from a judgment for defendants entered after defendants’ demurrers to their complaints were sustained without leave to amend. Plaintiffs sought to enjoin defendants from appropriating and expending for general municipal purposes the income derived from the sale of oil and gas produced from the tide and submerged lands granted in trust to the city of Long Beach by the State of California. (Stats. 1911, p. 1304, as amended by Stats. 1925, p. 235, Stats. 1935, p. 793, and Stats. 1951, p. 2443.) The expenditures to which plaintiffs object are purportedly authorized by a duly enacted amendment to the charter of the city of Long Beach, the material parts of which provide:

“The ‘Public Improvement Fund’ is hereby created and established. . . . Money placed therein shall be used exclusively for the payment of costs and expenses for the acquisition; construction, reconstruction, development, operation, repair and maintenance of public improvements and the acquisi*203tion of such lands, rights and property as may be necessary or convenient therefor. . . .
“Within thirty days after the effective date of this section, the City Treasurer shall transfer to the ‘Public Improvement Fund’ fifty per cent of all revenue derived by the City from oil, gas and other hydrocarbons, and fifty per cent of the interest, earnings, income and/or profits from investment of said revenue which is in the ‘Harbor Revenue Fund’ on the date of such transfer. Within said thirty days, he shall also transfer to the ‘Public Improvement Fund’ fifty per cent of all revenue in the ‘Harbor Reserve Fund’ and the ‘Tideland Oil Fund’ on the date of such transfer.
“At least once each calendar month thereafter, the City Treasurer shall transfer to the ‘Public Improvement Fund’ fifty per cent of all revenue derived by the City from oil, gas and other hydrocarbons and placed in the ‘Harbor Revenue Fund, ’ which is not required by this Charter to be transferred from said ‘Harbor Revenue Fund’ to the ‘Harbor Reserve Fund.’ He shall also transfer to the ‘Public Improvement Fund,’ at least once each calendar month thereafter, fifty per cent of all revenue so derived, which is required by this Charter to be transferred to the ‘Harbor Reserve Fund’ and fifty per cent of all revenue, so derived, which is required by this chapter to be placed in the ‘Tideland Oil Fund.’ ” (Charter of the city of Long Beach § 260.8, approved by concurrent resolution of the Legislature [Const., art. XI, § 8], Stats. 1953, p. 3826.)

The Harbor Revenue Fund (Stats. 1931, p. 2807), the Harbor Reserve Fund (Stats. 1949, p. 2857), and the Tideland Oil Fund (Stats. 2d Ex. Sess. 1946, p. 367; Stats. 1949, p. 2857) are depositories of the income derived from the production of oil and gas from the tide and submerged lands granted to the city by the state, except for the income derived from the production of “dry gas” from those lands, which is handled separately and is discussed below. Plaintiffs claim that the transfers authorized by this charter amendment and the expenditures pursuant thereto are unlawful. Defendants contend that the type of expenditures enumerated in the amendment are proper ones for a municipality to make, and that the transfers ordered by the amendment are authorized by chapter 915 of the Statutes of 1951. That statute provides:

“Section 1. It is hereby found and determined: That the City of Long Beach since 1939 has produced and is now producing large quantities of oil, gas and other hydro*204carbon substances from lands conveyed to said city by [the statutes cited above]. That from the revenue derived therefrom, said city has constructed upon said lands, wharves, docks, piers, slips, quays, and other utilities, structures and appliances necessary or convenient for the promotion and accommodation of commerce and navigation, at a cost of approximately thirty-five million dollars ($35,000,000). That said city has available and unexpended approximately seventy-five million dollars ($75,000,000), also derived from said source, for the uses and purposes required by said acts, and is now receiving and will continue to receive for many years approximately twenty-four million dollars ($24,000,000) per annum from said source. That, in addition thereto, said city obtains large quantities of ‘dry gas’ derived from natural gas produced from said lands, which is sold by said city to domestic and other consumers. That by reason of the already large expenditure on such lands for the uses and purposes required by said acts, the large additional sums available and to become available throughout the years for such purposes, the expenditure of more than a total of fifty per centum (50%) of such revenue, received and unexpended and hereafter to become available for such uses and purposes, would be economically impracticable, unwise and unnecessary. That fifty per centum (50%) of all revenue heretofore derived and unexpended, and to be derived, by the City of Long Beach from oil, gas and other hydrocarbon substances, other than ‘dry gas,’ produced from lands conveyed by said acts, is no longer required for navigation, commerce and fisheries, nor for such uses, trusts, conditions and restrictions as are imposed by said acts. That none of the revenue heretofore derived, and to be derived, by said city from ‘ dry gas’ obtained from said lands is any longer required for navigation, commerce and fisheries, nor for such uses, trusts, conditions and restrictions as are imposed by said acts.
“For the purposes of this act, ‘dry gas’ is defined to mean the gas directly produced from wells, which contains one-half of a gallon or less of recoverable gasoline per 1,000 cubic feet, or from which gasoline has been removed by processing.
“See. 2. That fifty per centum (50%) of all revenue heretofore derived and unexpended, and to be derived, by the City of Long Beach from oil, gas and other hydrocarbon substances, other than ‘dry gas,’ produced from lands conveyed by said above-entitled acts is hereby declared to be free from the public trust for navigation, commerce and *205fisheries, and from such uses, trusts, conditions and restrictions as are imposed by any of said above-entitled acts. That all of the revenue heretofore derived, and to be derived, by said city from ‘dr;-' gas,’ obtained from said lands is hereby declared to be free from the public trust for navigation, commerce and fisheries, and from such uses, trusts, conditions and restrictions as are imposed by any of said above-entitled acts.” (Stats. 1951, pp. 2444-2445.)

The tide and submerged lands from which the monies in question are derived were originally owned by the State subject to a trust for purposes of commerce, navigation, and fisheries for the benefit of all the people of the state. (City of Long Beach v. Morse, 31 Cal.2d 254, 262 [188 P.2d 17]; City of Long Beach v. Marshall, 11 Cal.2d 609, 614 [82 P.2d 362]; Boone v. Kingsbury, 206 Cal. 148, 183, 189 [273 P. 797]; City of Long Beach v. Lisenby, 175 Cal. 575, 579 [166 P. 333]; People v. California Fish Co., 166 Cal. 576, 584 [138 P. 79], quoting from Illinois Central R. Co. v. Illinois, 146 U.S. 387, 452-453 [13 S.Ct. 110, 36 L.Ed. 1018].) The Legislature committed the administration of this trust to the city of Long Beach (City of Long Beach v. Lisenby, supra, 175 Cal. 575, 579; and see Pub. Resources Code, § 6875) by conveying the lands involved to the city in fee simple (City of Long Beach v. Marshall, supra, 11 Cal.2d 609, 613) subject to an express trust that they be devoted exclusively to the improvement of commerce, navigation, and fisheries for the benefit of all the people of the state. (Ibid.; Atwood v. Hammond, 4 Cal.2d 31, 37-38 [48 P.2d 20], and cases cited.) The lands granted included the minerals therein, which are also subject to the trust. (City of Long Beach v. Morse, supra, 31 Cal.2d 254, 257-258; City of Long Beach v. Marshall, supra, 11 Cal.2d 609, 614; Trickey v. City of Long Beach, 101 Cal.App.2d 871, 879 [226 P.2d 694].) Before the enactment of the 1951 statute, quoted above, we held that “the proceeds from the sale of oil and gas from the lands in question may not be used for any purposes other than those specified in the trust conveyances under which the [city of Long Beach] claims title to the lands. The Legislature specified purposes relating to the harbor that it deemed beneficial to the state as a whole and did not authorize the city of Long Beach to use the corpus or the income of the trust for strictly local improvements.” (City of Long Beach v. Morse, supra, 31 Cal.2d 254, 262; see also Trickey v. City of Long Beach, supra, 101 Cal.App.2d 871, 880.) *206The transfers and expenditures authorized by the 1953 amendment to the charter of the city of Long Beach are of the same character as those declared unlawful in the Morse case. (See Stats. 2d Ex. Sess. 1946, pp. 366, 367.) The lawfulness of those transfers and expenditures depends, therefore, on the validity and effect of the 1951 statute revoking in part the public trust on the income derived from the lands in question. Thus, the principal issues to be resolved in the present ease are whether the revocation was a valid exercise of the legislative power, whether the revocation operated as a transfer from the state to the city of the monies affected thereby, and, if so, whether such a transfer would offend the constitutional prohibition against gifts of public monies.

It is well established that “ [t]he trust in which tide and submerged lands are held does not prevent the state from reclaiming tide and submerged lands from the sea where it can be done without prejudice to the public right of navigation and applying them to other purposes and uses. ’ ’ (Boone v. Kingsbury, supra, 206 Cal. 148, 189; Illinois Central R. Co. v. Illinois, supra, 146 U.S. 387, 452-453; Atwood v. Hammond, supra, 4 Cal.2d 31, 41; Oakland v. Oakland Waterfront Co., 118 Cal. 160, 183-185 [50 P. 277]; People v. California Fish Co., supra, 166 Cal. 576, 585-586; Ward v. Mulford, 32 Cal. 365, 372-373.) This principle has never been judicially applied in this state to the partial revocation of the public trust as to the income derived from the extraction of minerals imbedded in the lands subject to the trust, but the Legislature has devoted such income from tide and submerged lands held by the state to uses unconnected with the purposes of the public trust. (See Stats. 1921, chap. 303, § 19; Pub. Resources Code, § 6816.) Furthermore, we can see no real distinction between reclamation of peripheral lands that become, in the course of harbor development, unusable for purposes of the trust (Atwood v. Hammond, supra, 4 Cal.2d 31, 40-41) and the reclamation of part of the minerals imbedded in the lands subject to the trust that likewise become unnecessary for the purposes of the trust. Such a partial revocation of the trust will in no way impair the public interest in commerce, navigation, and fisheries in Long Beach harbor, and thus the revocation does not conflict with the manifest purposes of sections 2 and 3 of article XV of the Constitution. (See People v. California Fish Co., supra, 166 Cal. 576, 598; Cimpher v. City of Oakland, 162 Cal. 87, 90 [121 P. 374].) Moreover; the Legislature has “found and determined” *207that, to the extent affected by such partial revocation, the income derived from the production of oil and gas from the tide and submerged lands of Long Beach harbor “is no longer required for navigation, commerce and fisheries, nor for such uses, trusts, conditions and restrictions as are imposed by” the statutes granting the said tide and submerged lands in trust. (Stats. 1951, p. 2445.) That determination and finding is conclusive upon this court in the absence of evidence indicating that the abandonment of the public trust will impair the power of succeeding legislatures to protect, improve, and develop the public interest in commerce, navigation, and fisheries. (County of San Diego v. Hammond, 6 Cal.2d 709, 726 [59 P.2d 478, 105 A.L.R. 1155]; Boone v. Kingsbury, supra, 206 Cal. 148, 183; People v. California Fish Co., supra, 166 Cal. 576, 597; Oakland v. Oakland Waterfront Co., supra, 118 Cal. 160, 185.) Plaintiffs’ sole contention on this point, that succeeding generations might have need for the monies thus freed from the trust for development and improvement of the state’s harbors, waterways, and fisheries, is a matter of speculation and is insufficient of itself to overcome the legislative determination. Moreover, since the revocation in question does not contemplate or authorize the alienation of the tide and submerged lands free from the trust, succeeding legislatures can, if they deem it necessary for the purposes of the trust, reestablish the public trust on all the income derived from the production of oil and gas from the lands in question.

The next question is whether the revocation effected by the 1951 statute operates to transfer the monies involved to the state, as the plaintiff in intervention contends, or whether it operates as a transfer of those monies to the city of Long Beach, as defendants contend. In an early ease concerning title to former pueblo lands, which the state held subject to a public trust for “municipal purposes,” this court said that “ [t]hrough such repeal [of the act by which the administration of the trust was transferred to the city of Monterey] the entire property held for public use—which would include the public lands—would revert to the state, and no limitation being imposed upon the legislature under the constitution of 1849* in that respect, could be then disposed of in any manner it saw fit.” (City of Monterey v. Jacks, 139 Cal. *208542, 555-556 [73 P. 436], affirmed in 203 U.S. 360 [27 S.Ct. 67, 51 L.Ed. 220]; see also San Francisco v. Canavan, 42 Cal. 541, 554-556; Hart v. Burnett, 15 Cal. 530, 624.) In an early Kentucky case, concerning a grant of public lands for school purposes, similar reasoning was employed: “the legislature granted this land to the persons named in the trust for a certain purpose, and the title of the commonwealth did not pass from it to the grantees, except for that purpose; and, when the object of the trust became extinct, the title reverted to the commonwealth as a matter of law. . . . The reversion of title in such a case is ... in consequence of the failure of the purpose for which it was granted.” (Kennedy v. McElroy, 92 Ky. 72 [17 S.W. 202, 22 S.W. 442, 443].) The reasoning in these cases is the same as that governing private trusts in which, in the absence of an express provision to the contrary, a revocation of the trust results in a reversion of the trust property to the settlor. (Civ. Code, § 2280; see 3 Scott on Trusts (1939), § 345.3.) That this reasoning applies to the trust on which the tide and submerged lands in question were conveyed to the city of Long Beach is indicated by the language in City of Long Beach v. Morse, supra, 31 Cal.2d 254, 257, that the “city is a trustee and as such 1 assumes the same burdens and is subject to the same regulations that appertain to other trustees of such trusts.’ [Citation.]” Defendants’ reliance on the statement in City of Long Beach v. Marshall, 11 Cal.2d 609 [82 P.2d 362], that the lands were granted to the city in fee simple, is therefore ill founded. It was clearly recognized in that case that the city’s title in fee simple was subject to the public trust (11 Cal.2d at 613; and see City of Long Beach v. Morse, supra, 31 Cal.2d 254, 259), and the problem of the effect of a revocation of the trust was not then before the court. Moreover, trustees normally hold title to the corpus of the trust in fee simple, but only for the purpose of carrying out the objects of the trust. (See City of Long Beach v. Morse, supra, 31 Cal.2d 254, 258.) When the trust is terminated, the corpus does not become the individual property of the trustee; it reverts to the settlor.

Defendants also contend that the dictum in Atwood v. Hammond, 4 Cal.2d 31, 44 [48 P.2d 20], that “the state could not by unilateral action divest the city of its title, nor annex a different use to this eighteen acre parcel [of reclaimed tidelands], ’ ’ established the rule that although the state can terminate the public trust over such lands, the termination *209of the trust results, not in a reversion to the state as grantor, but in the ownership by the city of an absolute title to the lands originally conveyed to it in trust. This contention is based on the assumption that, pursuant to a conveyance to it from the state of lands subject to a public trust, the city acquires property or. contractual rights that are beyond the power of the Legislature to alter. Even if a conveyance, such as the one to the city of Long Beach in the present case, from the state to a municipal corporation is considered as a contract between the city and the state or as creating property interests in the city, the state acting through the Legislature has the power to alter contractual or property rights acquired by the municipal corporation from the state for governmental purposes. (County of Alameda v. Janssen, 16 Cal.2d 276, 284 [106 P.2d 11, 130 A.L.R. 1141]; Railroad Com. v. Los Angeles R. Corp., 280 U.S. 145, 156 [50 S.Ct. 71, 74 L.Ed. 234]; Trenton v. New Jersey, 262 U.S. 182, 188, 191-192 [43 S.Ct. 534, 67 L.Ed. 937, 29 A.L.R. 1471]; Pawhuska v. Pawhuska Oil & Gas Co., 250 U.S. 394, 398-399 [39 S.Ct. 526, 63 L.Ed. 1054]; Hunter v. Pittsburgh. 207 U.S. 161, 178-179 [28 S.Ct. 40, 52 L.Ed. 151] and eases cited: New Orleans v. New Orleans Water Works Co., 142 U.S. 79, 91 [12 S.Ct. 142, 35 L.Ed. 943]; see also Brooklyn & Richmond Ferry Co. v. United States, 167 F.2d 330, 333; Schulz, “The Effect of the Contract Clause and the Fourteenth Amendment Upon the Power of the States to Control Municipal Corporations,” 36 Mich.L.Rev. 385, 387-398, 408.) A municipal corporation has no privileges or immunities under the United States Constitution that it can invoke against the will of the state (Williams v. Mayor & City Council of Baltimore, 289 U.S. 36, 40 [53 S.Ct. 431, 77 L.Ed. 1015]), and under the California Constitution a freeholder city, such as the city of Long Beach, is exempt from legislative control only as to “municipal affairs.” (Const., art. XI, § 6; Eastlick v. City of Los Angeles, 29 Cal.2d 661, 665 [177 P.2d 558, 170 A.L.R. 225] and eases cited.) It is clear in the present case that any interest of the city of Long Beach in the tidelands was acquired not as a “municipal affair,” but subject to a public trust to develop its harbor and navigation facilities for the benefit of the entire state, and was therefore subject to the control of the Legislature. (City of Monterey v. Jacks, supra, 139 Cal. 542, 555-556.)

Moreover, the construction of the 1951 statute for which defendants contend would result in its unconstitutionality. *210If the statutory revocation operates as a transfer of the monies affected thereby to the city of Long Beach, such a transfer would be a gift of public monies in violation of section 31 of article IV of the Constitution.* Defendants argue that the development of the harbor without -expense to the state was sufficient consideration for the original grant of the lands in trust, and that, the grant having thus been made, the state had nothing more of value to convey and the 1951 statue merely released certain conditions and restrictions on the original grant. Although the question of gift has never been directly discussed in any of the cases, it is clear that grants in trust of tide and submerged lands to municipal corporations have been made in furtherance of the interest of the entire state in the development of its harbors and thus such grants do not violate the constitutional prohibition against gifts. (See City of Long Beach v. Morse, supra, 31 Cal.2d 254, 262; Miller v. Stockburger, 12 Cal.2d 440, 444 [85 P.2d 132]; Atwood v. Hammond, supra, 4 Cal.2d 31, 45; Oakland v. Oakland Waterfront Co., supra, 118 Cal. 160, 189; City of Newport Beach v. Hager, 39 Cal.App.2d 23, 29 [102 P.2d 438].) Defendants contend, however, that the transfer to the city of the monies released from the trust by the 1951 statute would not violate the constitutional prohibition against gifts because the state had nothing of value to convey and the city received nothing of value by reason of that statute. There is no merit in this contention. If, as defendants contend, the city is entitled to those monies, it is entitled to them by reason of the statute. If defendants’ interpretation of the statute is the correct one, the city now has available for general municipal expenditures millions of dollars that were not available to it before the enactment of the 1951 statute. (City of Long Beach v. Morse, supra, 31 Cal.2d 254, 262.) There being no benefit to all the people of the state from such a transfer, it would be a gift of public monies and thus prohibited by the Constitution.

County of Los Angeles v. Southern Calif. Tel. Co., 32 Cal.2d 378 [196 P.2d 773], on which defendants rely, is not inconsistent with this conclusion. That ease involved the validity of franchises acquired under the provisions of section 536 of the Civil Code. In holding that such franchises are not gifts within the meaning of section 31 of article IV, we *211said that “the state is assured of a continuing benefit in return for the privileges granted under section 536. . . . The company must not only construct a telephone system but it must render service, and if it fails to do so the franchise terminates. Thus the state receives a benefit during the life of the franchise, since in order to retain it the company must continue to serve the public . . .

11 Since the offer of a franchise in section 536, when accepted, results in a binding agreement supported by a valid consideration, there is no gift within the meaning of the constitutional prohibitions.” (32 Cal.2d at 388.)

It is suggested, however, that the expenditures purportedly authorized by section 260.8 of the charter of the city of Long Beach are expenditures for public purposes and thus that a transfer of the funds in question from the state to the city would not be a gift within the meaning of section 31 of article IV of the Constitution. There is no merit to this contention. That section of the Constitution specifically forbids the making of a gift of public monies or thing of value to any municipal corporation, and all lawful expenditures of such corporations are necessarily for public purposes. Moreover, as we said in City of Oakland v. Garrison, 194 Cal. 298, 304 [228 P. 433], in reference to the appropriation of county funds for the improvement of a city street, “It is not sufficient, therefore, that the appropriation here in question be for a public purpose. It must also be for a purpose which is of interest and benefit generally to the people of the county of Alameda. The question, then, is whether the improvement of this particular street within the city of Oakland is a matter of such general county interest that the county funds may properly be expended therein.” Applying that principle to the present case, we cannot hold that the construction and establishment by the city of Long Beach of storm drains, a city incinerator, a public library, public hospitals, public parks, a fire alarm system, off-street parking facilities, city streets and highways, and other expenditures that have been authorized to be made from the “Public Improvement Fund,” are of such general state-wide interest that state funds could properly be expended thereon. Such expenditures are for purely “municipal affairs” within the meaning of section 6 of article XI of the Constitution. (See City of Grass Valley v. Walkinshaw, 34 Cal.2d 595, 599 [212 P.2d 894] [sewer]; Jardine v. City of Pasadena, 199 Cal. 64, 68 [248 P. 225, 48 A.L.R. 509] [isola*212tion hospital]; Stege v. City of Richmond, 194 Cal. 305, 312 [228 P. 461] [city streets]; City of Pasadena v. Paine, 126 Cal.App.2d 93, 98 [271 P.2d 577] [city library] ■ Alexander v. Mitchell, 119 Cal.App.2d 816, 826-827 [260 P.2d 261] [off-street parking facilities]; Perez v. City of San Jose, 107 Cal.App.2d 562, 566 [237 P.2d 548] [city highways]; Beard v. City & County of San Francisco, 79 Cal.App.2d 753, 755 [180 P.2d 744] [public hospital]; Armas v. City of Oakland, 135 Cal.App. 411, 420 [27 P.2d 666, 28 P.2d 422] [fire protection].) Moreover, they are normal expenditures for a municipal corporation to make, and to hold that a grant of public monies from the state to defray such expenditures is not a gift within the meaning of section 31 of article IV of the Constitution would render meaningless the express prohibition therein against gifts to “municipal corporations.” We conclude, therefore, that in view of the intendments in favor of the constitutionality of a statute (Jersey Maid Milk Products Co. v. Brock, 13 Cal.2d 620, 636 [91 P.2d 577], and cases cited), we must adopt the construction of the 1951 statute indicated by City of Monterey v. Jacks, supra, 139 Cal. 542, 555-556, and we hold that the partial revocation of the trust effected by that statute necessarily results in a reversion to the state of the monies thus released from the trust, and the city holds those funds upon a resulting trust for the state. It is, therefore, unnecessary to consider plaintiffs’ other constitutional objections to the construction of the statute urged by defendants.

It remains only to consider the intervening plaintiff’s contention that the provision in the 1951 statute, 1 ‘ [t] hat all of the revenue heretofore derived, or to be derived, by said city from ‘dry gas,’ obtained from said lands is hereby declared to be free from the public trust. ...” [italics added], is an unconstitutional attempt to validate the past unlawful .expenditure of such funds for general municipal purposes. (Const., art. IV, §25 [16], [18].) It was held in Trickey v. City of Long Beach, 101 Cal.App.2d 871 [226 P.2d 694], that the income derived from the production of “dry gas” from the tide and submerged lands granted to the city was subject to the public trust for commerce, navigation, and fisheries, and that the expenditure of that income for general municipal purposes was unlawful. It follows from the conclusion reached above that as a result of the 1951 statute the city holds all of the funds “heretofore derived, or to be derived” from the production of “dry gas” from *213the lands in question subject to a resulting trust in favor of the state.

The judgment is reversed.

Gibson, C. J., Edmonds, J., and Carter, J., concurred.

The prohibition on “the making of any gift, of any public money or thing of value” (Const., art. IV, § 31) was not added to the Constitution until 1879.

“See. 31. The Legislature shall have no power ... to make any gift or authorize the making of any gift, of any public money or thing of value to any individual, municipal or other corporation whatever. . . .”