McMahon

*291 Opinion

Linda McMahon, as Director of the Department of Social Services, Gray Davis, as Controller of the State of California, and the State of California (collectively, the State), appeal from a preliminary injunction granted the Board of Supervisors of Butte County (the County). The parties’ dispute involves the State’s power to require the County to contribute local funds to a state-mandated program. The trial court determined that two constitutional provisions gave the County a reasonable probability of prevailing on its claim for state funding. The court also found that the balance of hardships favored the County. Accordingly, the court’s preliminary injunction ordered the State to fund the entire nonfederal share of the aid to families with dependent children (AFDC) grants-in-aid program in Butte County.

We shall conclude that the trial court erred by finding that the County would probably prevail on its claim. Neither the two constitutional theories considered post, nor the “home rule” and “impossibility” theories tendered here, support a preliminary injunction. Accordingly, we shall reverse.

Background

California has elected to participate in the AFDC program, a…

I concur in parts I, II, III, and the general factual summary set forth in the majority opinion. However, I respectfully disagree with the analysis of the facts and law in part IV in the context of the doctrine of impossibility of performance and will dissent from that part of the opinion.

“The law never requires impossibilities.” (Civ. Code, § 3531.) Impossibility means not only strict impossibility but also impracticability because of extreme and unreasonable difficulty, expense, injury, or loss involved. (Oos ten v. Hay Haulers etc. Union (1955) 45 Cal.2d 784, 788 [ 291 P.2d 17 ].) Consistent with this maxim, the law recognizes exceptions to statutory requirements for impossibility of performance. (People v. Lake County (1867) 33 Cal. 487, 492 [impossibility of performance renders mandatory statutory duty directory only]; County of San Diego v. Milotz (1953) 119 Cal.App.2d Supp. 871, 883-884 [ 260 P.2d 282 ]; see 73 Am.Jur.2d, Statutes, § 15, p. 278 [“[W]here strict compliance with the terms of a statute is impossible, compliance as near as can be has been permitted on the principle that the law does not require impossibilities.”].) More to the point in this case, “it is very…

Alan Lieberman, Lucy Quacinella, Mark Greenberg and Richard A. Rothschild for Intervener and Respondent.

OPINION

DAVIS, J.

Linda McMahon, as Director of the Department of Social Services, Gray Davis, as Controller of the State of California, and the State of California (collectively, the State), appeal from a preliminary injunction granted the Board of Supervisors of Butte County (the County). The parties' dispute involves the State's power to require the County to contribute local funds to a state-mandated program. The trial court determined that two constitutional provisions gave the County a reasonable probability of prevailing on its claim for state funding. The court also found that the balance of hardships favored the County. Accordingly, the court's preliminary injunction ordered the State to fund the entire nonfederal share of the aid to families with dependent children (AFDC) grants-in-aid program in Butte County.

We shall conclude that the trial court erred by finding that the County would probably prevail on its claim. Neither the two constitutional theories considered post, nor the "home rule" and "impossibility" theories tendered here, support a preliminary…