Opinion
McCOMB, J.
This is a judgment roll appeal from a judgment denying a peremptory writ of mandamus and discharging the alternative writ theretofore issued.
Petitioners, registered voters of the County of Marin, on behalf of themselves and others similarly situated sought a writ of mandate to compel the county clerk to certify that a referendum petition had attached to it the requisite number of signatures of registered, qualified electors of the county. The petition as filed contained 6,719 signatures. A minimum of 6,090 was required to qualify it.1 Section 5152 of the Elections Code requires that [452]*452within 10 days from the date of filing the petition the clerk shall examine it, ascertain whether or not it is signed by the requisite number of voters and attach his certificate showing the result of his examination. The clerk’s certificate showed only 5,774 qualified signatures. Petitioners alleged that the clerk had rejected, for reasons unknown to them, 944 signatures of duly registered and qualified voters of the county and that the clerk had wrongfully and unlawfully certified to the board of supervisors that a legally deficient number had signed the petition.
The referendum petition protested the adoption of Ordinance No. 1507, approved by the board of supervisors of Marin County on April 12, 1966. In 1965 the county had by ordinance rezoned 2,200 acres of land to P-C (planned community) and by resolution of the board had adopted a Master Plan for the development of this community to be known as “Marincello.” Under Marin County Code section 22.44.040 the board and the planning commission were required to approve a precise development plan for any land improvement within the planned community. Ordinance No. 1507 approved a precise development plan for the construction of the Tennessee Valley access road into Marincello. The owners and developers were allowed to intervene as defendants in this proceeding. Their answer alleged that there were an additional 934 signatures on the petition which should not have been allowed by the clerk. During the proceeding they raised the objection that this ordinance related only to administrative duties of the board and was not subject to referendum. The parties by stipulation agreed that, pending determination of the validity of the rejected signatures, the court should not determine whether the ordinance was subject to referendum proceedings or whether some of the allowed signatures contained irregularities which would compel their disallowance.
The transcript indicates that the hearings took several weeks; that witnesses were called and examined; that the court ordered the production of all registration cards and that it examined each of the signatures on the petition together with the corresponding signatures on registration cards; that the legal issues were extensively briefed; and that there were frequent colloquies between court and counsel. In its Memorandum and Minute Order of January 11, 1967, the court stated that it considered the first problem which it must consider in reviewing the clerk’s action was whether he had correctly applied the law; the second problem was the question of identification, i.e., was there sufficient similarity between the signature on the petition and that on the registration card to enable the clerk, acting as a reasonable person, to determine that the signer was the registered voter [453]*453in question. The clerk’s judgment in this area of identification must be respected, the court stated, unless it appeared that the clerk rejected a signature for some fancied dissimilarity and “the Court must not seek to make the identification for him. I believe this to be the approach to be taken in this case regardless of whether the pleadings contain particular semantic formulas relating to alleged fraud or arbitrary or capricious action.”
The Memorandum Opinion of April 27, 1967, states that the court grouped the disputed signatures into four general categories, a to d. The “c” group contained 94, each of which had been rejected by the clerk initially for reasons which the court found did not constitute a proper basis for disqualification. At the hearing the clerk testified that he nevertheless would have rejected each of these on the ground that a comparison of the handwriting on the petition with that on the registration affidavit left him unsatisfied that the petition was in fact signed by the voter. He testified that in each case he was convinced because of the handwriting dissimilarity that the signature on the petition was not that of the voter in question. The court examined each of these signatures and stated that there were sufficient similarities so that it would be reasonable to conclude that the same person had signed the petition; and that if the court were checking signatures it would resolve such doubt as did exist in favor of the validity of the signature, if it had the power to substitute its judgment for that of the clerk. It determined that it had no such power, unless the similarities were so great or the dissimilarities so minor as to make the clerk’s rejection unreasonable or arbitrary.
The clerk rejected 58 names as duplicates. The Memorandum Opinion indicates that petitioners had testified that they had carefully checked the petition and could not find the claimed duplicates, that the clerk had testified as to the procedures employed by his office to discover duplications, and that it was a question “which side the court believes made the more accurate check.”
Findings of Fact and Conclusions of Law were filed September 5, 1967. The court found that petitioners had conceded at the trial that 474 signatures were properly disallowed; and that the clerk had restored at the trial 238 signatures originally disallowed by him.2 These findings are not chal[454]*454lenged on this appeal. The court found that 233 signatures were properly rejected by the clerk for the following reasons: 58 were duplicates; 94 had handwriting dissimilarities and that there was difference of opinion between the clerk and the court on these, but that the clerk’s rejection thereof was not unreasonable or arbitrary;3 31 had handwriting dissimilarities, and the court agreed with the clerk’s determination; and on 50 “no affidavits of circulation whatsoever attested their validity.” The petition was found to be signed by not more than 6,012 voters. The court found that at all times mentioned the clerk acted in good faith, in an honest, fair and reasonable manner, and in no instance could any of his actions be deemed arbitrary or capricious.
On this appeal petitioners urge that the court erred as a matter of law in deferring to the clerk’s opinion that 94 signatures were not authentic and that 58 signatures were duplicates, and in deferring to his “improper rejection of petitions containing valid signatures because of some alleged defect in the circulator’s affidavit.”
In a judgment roll appeal every presumption is in favor of the validity of the judgment and any condition of facts consistent with its validity will be presumed to have existed rather than one which will defeat it. (Johnson v. Hayes Cal Builders, Inc. (1963) 60 Cal.2d 572, 578 [35 Cal.Rptr. 618, 387 P.2d 394].) The sufficiency of the evidence to support the findings is not open to review. (DeVries v. Brumback (1960) 53 Cal.2d 643, 647-648 [2 Cal.Rptr.
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Opinion
McCOMB, J.
This is a judgment roll appeal from a judgment denying a peremptory writ of mandamus and discharging the alternative writ theretofore issued.
Petitioners, registered voters of the County of Marin, on behalf of themselves and others similarly situated sought a writ of mandate to compel the county clerk to certify that a referendum petition had attached to it the requisite number of signatures of registered, qualified electors of the county. The petition as filed contained 6,719 signatures. A minimum of 6,090 was required to qualify it.1 Section 5152 of the Elections Code requires that [452]*452within 10 days from the date of filing the petition the clerk shall examine it, ascertain whether or not it is signed by the requisite number of voters and attach his certificate showing the result of his examination. The clerk’s certificate showed only 5,774 qualified signatures. Petitioners alleged that the clerk had rejected, for reasons unknown to them, 944 signatures of duly registered and qualified voters of the county and that the clerk had wrongfully and unlawfully certified to the board of supervisors that a legally deficient number had signed the petition.
The referendum petition protested the adoption of Ordinance No. 1507, approved by the board of supervisors of Marin County on April 12, 1966. In 1965 the county had by ordinance rezoned 2,200 acres of land to P-C (planned community) and by resolution of the board had adopted a Master Plan for the development of this community to be known as “Marincello.” Under Marin County Code section 22.44.040 the board and the planning commission were required to approve a precise development plan for any land improvement within the planned community. Ordinance No. 1507 approved a precise development plan for the construction of the Tennessee Valley access road into Marincello. The owners and developers were allowed to intervene as defendants in this proceeding. Their answer alleged that there were an additional 934 signatures on the petition which should not have been allowed by the clerk. During the proceeding they raised the objection that this ordinance related only to administrative duties of the board and was not subject to referendum. The parties by stipulation agreed that, pending determination of the validity of the rejected signatures, the court should not determine whether the ordinance was subject to referendum proceedings or whether some of the allowed signatures contained irregularities which would compel their disallowance.
The transcript indicates that the hearings took several weeks; that witnesses were called and examined; that the court ordered the production of all registration cards and that it examined each of the signatures on the petition together with the corresponding signatures on registration cards; that the legal issues were extensively briefed; and that there were frequent colloquies between court and counsel. In its Memorandum and Minute Order of January 11, 1967, the court stated that it considered the first problem which it must consider in reviewing the clerk’s action was whether he had correctly applied the law; the second problem was the question of identification, i.e., was there sufficient similarity between the signature on the petition and that on the registration card to enable the clerk, acting as a reasonable person, to determine that the signer was the registered voter [453]*453in question. The clerk’s judgment in this area of identification must be respected, the court stated, unless it appeared that the clerk rejected a signature for some fancied dissimilarity and “the Court must not seek to make the identification for him. I believe this to be the approach to be taken in this case regardless of whether the pleadings contain particular semantic formulas relating to alleged fraud or arbitrary or capricious action.”
The Memorandum Opinion of April 27, 1967, states that the court grouped the disputed signatures into four general categories, a to d. The “c” group contained 94, each of which had been rejected by the clerk initially for reasons which the court found did not constitute a proper basis for disqualification. At the hearing the clerk testified that he nevertheless would have rejected each of these on the ground that a comparison of the handwriting on the petition with that on the registration affidavit left him unsatisfied that the petition was in fact signed by the voter. He testified that in each case he was convinced because of the handwriting dissimilarity that the signature on the petition was not that of the voter in question. The court examined each of these signatures and stated that there were sufficient similarities so that it would be reasonable to conclude that the same person had signed the petition; and that if the court were checking signatures it would resolve such doubt as did exist in favor of the validity of the signature, if it had the power to substitute its judgment for that of the clerk. It determined that it had no such power, unless the similarities were so great or the dissimilarities so minor as to make the clerk’s rejection unreasonable or arbitrary.
The clerk rejected 58 names as duplicates. The Memorandum Opinion indicates that petitioners had testified that they had carefully checked the petition and could not find the claimed duplicates, that the clerk had testified as to the procedures employed by his office to discover duplications, and that it was a question “which side the court believes made the more accurate check.”
Findings of Fact and Conclusions of Law were filed September 5, 1967. The court found that petitioners had conceded at the trial that 474 signatures were properly disallowed; and that the clerk had restored at the trial 238 signatures originally disallowed by him.2 These findings are not chal[454]*454lenged on this appeal. The court found that 233 signatures were properly rejected by the clerk for the following reasons: 58 were duplicates; 94 had handwriting dissimilarities and that there was difference of opinion between the clerk and the court on these, but that the clerk’s rejection thereof was not unreasonable or arbitrary;3 31 had handwriting dissimilarities, and the court agreed with the clerk’s determination; and on 50 “no affidavits of circulation whatsoever attested their validity.” The petition was found to be signed by not more than 6,012 voters. The court found that at all times mentioned the clerk acted in good faith, in an honest, fair and reasonable manner, and in no instance could any of his actions be deemed arbitrary or capricious.
On this appeal petitioners urge that the court erred as a matter of law in deferring to the clerk’s opinion that 94 signatures were not authentic and that 58 signatures were duplicates, and in deferring to his “improper rejection of petitions containing valid signatures because of some alleged defect in the circulator’s affidavit.”
In a judgment roll appeal every presumption is in favor of the validity of the judgment and any condition of facts consistent with its validity will be presumed to have existed rather than one which will defeat it. (Johnson v. Hayes Cal Builders, Inc. (1963) 60 Cal.2d 572, 578 [35 Cal.Rptr. 618, 387 P.2d 394].) The sufficiency of the evidence to support the findings is not open to review. (DeVries v. Brumback (1960) 53 Cal.2d 643, 647-648 [2 Cal.Rptr. 764, 349 P.2d 532].) It must therefore be presumed that the evidence was sufficient to support the findings that as to the 94 signatures in the “c” group the similarities were not so great, and the dissimilarities were not so minor as to make the clerk’s rejection unreasonable or arbitrary; that 58 signatures were duplicates; and that there were no affidavits of circulation whatsoever attesting the validity of 50 signatures. Affidavits of circulation are required (Elec. Code, § 3701; former Cal. Const., art. IV, § 1).
California Constitution, article IV, section 1, prior to its repeal and reenactment on November 8, 1966 (now art. IV, § 25)3
4 reserved to the [455]*455people the power of the initiative and the referendum and specifically reserved such powers to the electors of each county “to be exercised under such procedure as may be provided by law.” This section was declared to be self-executing, “but legislation may be enacted to facilitate its operation, but in no way limiting or restricting either the provisions of this section or the powers herein reserved.” It requires that each section of a petition have attached to it the affidavit of the person soliciting signatures to the same, stating his own qualifications, and stating that all of the signatures to the attached section were made in his presence, and that to the best of his knowledge and belief each such signature is the genuine signature of the person whose name it purports to be, and no other affidavit thereto shall be required. The affidavit must be verified. The petitions so verified “shall be prima facie evidence that the signatures thereon are genuine and that the persons signing the same are qualified electors. Unless and until it be otherwise proven upon official investigation, it shall be presumed that the petition presented contains the signatures of the requisite number of qualified electors.”
Facilitating legislation has been enacted by the Legislature, the provisions for initiative and referendum in county elections being provided in section 3700 et seq. of the Elections Code. Section 3701 requires that each signer of a petition add to his signature his place of residence; provides that the signatures need not all be appended to one paper; requires that each separate paper have attached an affidavit made by a voter of the county stating that he circulated that particular paper and saw written the signatures appended to it and that according to his best information and belief each such signature is the genuine signature of the person whose name it purports to be and that the signer is a voter of the county. Section 3707 requires the county clerk to examine the petition within 10 days from date of filing and from the records of registration ascertain whether or not the petition is signed by the requisite number of voters. He must attach his certificate showing the result of his examination. Provision is made for the filing of a supplemental petition, bearing additional signatures, if the clerk’s certificate shows that the original petition has insufficient signatures, and this supplemental petition must be examined by the clerk within 10 days after it is filed, and he must certify the results of his examination. If the petition is found to be sufficient he must submit it to the board of supervisors at its next regular meeting.
These duties are ministerial but they are not mechanical. They involved more than a computation of the number of signatures. Some [456]*456judgment on the part of the clerk is required. Each signature on the petition must be handwritten and he must compare this handwriting with that on the registration affidavit to determine if it is the handwriting of the voter. He must use his eyesight and critical faculties to determine whether sufficient similarities exist for him to certify that this is a valid signature. If he certifies that the petition contains the requisite number of valid signatures, the board of supervisors must submit the ordinance, without alteration, to the voters at the next general election (Elec. Code, § 3711). His petition is therefore prima facie correct. It is not conclusive, however, and may be challenged and reviewed by a court in mandamus proceedings. (Ley v. Dominguez (1931) 212 Cal. 587 [299 P. 713].)
We turn, then, to a consideration of whether errors of law occurred in the mandamus proceedings which require reversal by this court.
Questions; First. Did the court err in accepting the clerk’s determination that these 94 signatures were invalid?
No. Where the signature on the petition is obviously spurious and is not that of the voter as shown by the registration affidavit, the clerk may and must reject it. He has no discretion to certify a spurious signature. Where there are dissimilarities which are so minor as to make the clerk’s rejection of the signature an unreasonable or arbitrary act, the court may not accept the clerk’s determination. Where, as here, the dissimilarities are not so minor and the similarities are not so great that only one conclusion can be made as to the validity or invalidity of the signature, and where the court finds that in acting upon these dissimilarities and other indicia the clerk was not acting unreasonably or arbitrarily in finding them spurious, the court must accept the clerk’s determination. This view of the law does not conflict with the provisions of former section 1, of article IV of the California Constitution that a referendum petition, when verified by the affidavit of the circulator, is prima facie evidence that the signatures thereon are genuine and that the persons signing the same are qualified electors. Thereafter the clerk must make his determination of the genuineness thereof. He is limited in his comparison of the signatures and may not go outside the registration affidavit to determine this. (Ley v. Dominguez, supra, 212 Cal. 587, 596; see Ratio v. Board of Trustees (1925) 75 Cal.App. 724, 726 [243 P. 466]; see Schaaf v. Beattie (1968) 265 Cal.App.2d 904, 910 [72 Cal.Rptr. 79], hearing denied by this court Nov. 20, 1968, as to limitations on clerk’s determination of residence qualifications.) The court in mandamus proceedings may review his certification. Where it finds that the clerk has acted reasonably and has not acted arbitrarily or fraudulently, it must accept his determination.
[457]*457
Second. Did the court err in not allowing the petitioners to produce evidence that the 94 signatures were in fact genuine?
No. The exercise of jurisdiction in mandamus rests to a considerable extent in the wise discretion of the court. (Fawkes v. City of Burbank (1922) 188 Cal. 399, 401 [205 P. 675].) The control of the proceedings rested in its discretion. The minute order of March 14, 1967, indicates that petitioners submitted their cause, and then stated they would present an offer of proof in writing. Minute order of March 21 shows motion by defendant county for judgment; the court’s statement that it was ready to grant the motion but felt that it should grant petitioners a chance to present their offer of proof; that offer of proof was made; and that petitioners requested permission to reopen the cause to allow them to call in all of the 94 persons in the “c” group. The motion was denied on objection by defendant. The court gave petitioners 10 days to further research the authorities, the matter to be submitted at the end of 10 days. There is nothing in the record to show that the court erred in denying the motion to reopen or rejecting the offer of proof.
Petitioners urged before the trial court and on appeal that they had been misled by the trial court into believing that it had approved the 94 signatures, and that the court had reversed its earlier ruling on signature authenticity only after they had rested their case. These contentions are reviewed by the court in its memorandum opinion of April 27, 1967. The court stated therein that throughout the proceedings it had ruled that the clerk’s judgment in the area of identification must be upheld, even though the court if acting independently might have found the signatures valid, and that the court could not make the determination for the clerk unless it found that he had acted fraudulently or arbitrarily. There is nothing in the record before us to indicate that the parties did not have every opportunity to litigate their objections to the clerk’s certificate.
Third. Is the ordinance in question subject to referendum proceedings?
Yes. The ordinance was pleaded in full in the petition for writ of mandate. The power of referendum may be invoked only with respect to matters which are strictly legislative in character (Johnston v. City of Claremont (1958) 49 Cal.2d 826, 834 [323 P.2d 71]). It may not be invoked with regard to those matters which are strictly executive or administrative. (Housing Authority v. Superior Court (1950) 35 Cal.2d 550, 557 [219 P.2d 457].) This type of ordinance has generally been held to be legislative. (See Hopping v. Council of City of Richmond (1915) 170 Cal. 605, 613-614 [150 P. 977].) The original ordinance authorized the establishment of “Marincello” as a planned community. The referendum was sought against a subsequent ordinance for the construction of [458]*458an access road. Intervenors argue that this ordinance was passed merely for the purpose of giving effect to the previously declared legislative policy and was administrative, not legislative. Roadways are of sufficient public interest and concern to weight the scales in favor of construing this ordinance as being legislative and to be well within the referendum powers reserved by the people.
It is not necessary to here decide whether the court should have heard intervenors’ objections to signatures which had been allowed by the clerk. That issue was removed from the trial by stipulation, not to be heard unless the petition was found to have sufficient signatures to validate it. It was not so found.
Judgment affirmed.
Burke, J., Draper, J.,
Assigned by the Chairman of the Judicial Council.