Rushton v. Lelander

115 P. 56, 15 Cal. App. 448, 1911 Cal. App. LEXIS 368

• Court: California Court of Appeal
• Decided: February 20, 1911
• Docket: Civ. No. 929.
• Status: Published

Opinion

ALLEN, P. J.

Appeal from a judgment discharging an alternative writ of mandamus, and for costs expended.

The petition, the basis for the issuance of the alternative writ, discloses that' the freeholders’ charter of Los Angeles city contains certain provisions with reference to the initiative and referendum; the first thereof having reference to the initiative is found in section 198a, which provides: “The signatures to the petition need not all be appended to one paper, but each signer shall add to his signature his place of residence, giving the street and number. One of the signers of each such paper shall make oath before an officer competent to administer oaths, that the statements therein made are true, and that each signature to the paper appended is the genuine signature of the person whose name purports to be thereunto subscribed. Within ten days from the date of filing such petition the city clerk shall examine and from the great register ascertain whether or not said petition is signed by the requisite number of qualified electors, . . . and he shall attach to said petition his certificate showing the result of said examination. If, by the clerk’s certificate, the petition is shown to be insufficient, it may be amended within ten days from the date of such certificate. The clerk shall, within ten days after such amendment, make like examination of the amended petition, and if his certificate shall show the same to be insufficient, it shall be returned to the person filing the same, without prejudice, however, to the filing of a new petition to the same effect.”

Another provision of the charter, section 198b, is with reference to the referendum. This provides, with reference to the character of ordinances under consideration: “No ordinance passed by the city council . . . shall go into effect before thirty days from the time of its final passage and its approval by the mayor, and if during said thirty days a petition signed by electors of the city equal in number to at least seven per cent of the entire vote cast for all candidates for mayor at the last preceding general election at which a mayor was elected, protesting against the passage of such ordinance, be presented to the council, the same shall thereupon be suspended from going into operation, and it shall be the duty of the council to reconsider such ordinance, and if the same is not entirely repealed, the council shall submit the ordinance, as is provided in section 198a of this charter, to the vote of the electors of the city. . . . Said petition shall be in all respects in accordance with the provisions of said section 198a, except as to the percentage of signers, and be examined and certified by the clerk in all respects as is therein provided. ’ ’

Further, that on April 22, 1910, a certain ordinance, having theretofore been passed by the city council, was approved by the mayor. That on May 20, 1910, plaintiff and others filed with the defendant city clerk of Los Angeles certain separate papers, the aggregate thereof constituting a petition, protesting against the passage of such ordinance; that such petition in the aggregate contained the percentage of electors required by section 198b, but the separate papers, or many of them, so filed as a petition, were not verified by one of the signers of such separate paper; that by reason thereof the clerk, on May 26, 1910, certified to the council the insufficiency of the petition. Thereafter, and after the lapse of more than thirty days from the approval of the ordinance, plaintiffs and others who had originally signed said papers, asked to amend the same by adding thereto the name of the party verifying each separate paper, so as to make such party a petitioner in the separate paper so by him verified. This was denied, and thereafter, on June 4, 1910, plaintiffs presented to the clerk other papers containing the names of electors, each of which papers was verified by a signer thereof; but upon examination the clerk found that these signatures were in duplicate, that many of the persons verifying what was termed the “amended papers” were signers upon the original papers on file constituting the first petition, and for that reason the clerk declared the amended petition insufficient. Plaintiffs, therefore, pray for a writ of mandate directing the city clerk to allow the persons who filed written demands therefor to amend said petition by signing their names, streets and num bers to the body thereof, and that the clerk be forthwith required to compare the names annexed to all the petitions filed with him with the great register of Los Angeles county, to ascertain whether or not said petition is signed by the requisite number of qualified electors, and if so found sufficient, that he submit same to the city council without delay.

The proper construction to be given section 198b, and with reference to that portion thereof which provides, “said petition shall be in all respects in accordance with the provisions of said section 198a, . . . and be examined and certified by the clerk in all respects as is therein provided,” presents the question for determination upon this appeal. It is insisted by appellants that this last-quoted portion of section 198b authorizes the amendment of a petition under that section in the manner and to the extent provided by section 198a. We are of opinion that such was not the intent of the framers of the charter, or of the electors who adopted the same; that the words “said petition shall be in all respects,” etc., “and be examined and certified,” etc., refer solely to the original petition provided for by section 198a, and refer solely to the form, substance and certification of such original petition; that it is obvious that that portion of section 198a permitting amendments after thirty days cannot and does not apply to a petition which seeks to invoke the referendum. This is apparent from the provision of the section generally, to the effect that the ordinance passed shall not go into effect before thirty days, and that thirty days is the time given within which the electors shall file their protests, and upon the filing of which protests in the manner and form prescribed, and in no other, event, is the ordinance suspended from operation beyond the thirty days. It is plain that if the requisite petition constituting the protests be not filed within thirty days, the ordinance becomes effective, and being so effective, the referendum no longer applies to it, and if the elector desires relief from its operation, such relief must be worked out through the initiative section before referred to by a repeal of such ordinance, brought about by the manner therein provided. Otherwise, an insignificant number of voters might present a protest to the passage of an ordinance on the twenty-ninth day after its approval, and the insufficient character thereof being apparent, they could then file other and addi tional protests, each of which would have to be examined and certified, and if finally found insufficient, they should be returned to the protestante, without prejudice to the filing of a new petition to the same effect. In other words, by these obstructive methods a small minority of the electors might prevent an ordinance from becoming operative for a long period of time after the expiration of the time provided by the charter when the same should become operative. The same reasons do not apply to the initiative; that provides for the inauguration of new and independent legislation. No rights are affected, and no steps required to be taken until a petition of the requisite kind and character is on^- file. Interested parties might indulge in petitions without number, amend without limitation, commence and recommence proceedings under section 198a, without disturbing public affairs in the least. But such would not be the effect were the clause with reference to amendment to be construed as applying to the referendum. It is certainly beyond question that the original petition filed in this instance was not in the manner and form prescribed by the charter. Each separate paper was not verified by one of the signers thereof, which being true, it was of no effect as a protest under this section' of the charter. The demand to amend is a tacit admission of the insufficiency of the original; otherwise, no reason suggests itself why a sufficient paper should be amended, or that a court should by its order compel consent thereto. There being, then, on file no protest or petition as by the charter provided, at the expiration of thirty days from the approval of the ordinance, the ordinance became effective and operative, and no amendment and no steps of any kind or character thereafter taken by the electors, under section 198b, could disturb the operative character of this ordinance so in effect. We think the court below properly determined that the original petition was insufficient, and that the clerk was warranted in so certifying. Being so insufficient, the ordinance taking effect thirty days after its approval, the clerk had no duty to perform in connection with so-called amendments of original petitions thereafter filed with reference to such ordinance, and that the ordinance having taken effect within the time provided by the charter, no authority or jurisdiction reposed in the city coun cil to order an election under section 198b through which the electors might annul the operative ordinance.

Judgment affirmed.

James, J., and Shaw, J., concurred.