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District Court of Appeal, First District, Division 2, California.

PEOPLE by Howser, ex rel. LEVIN v. SANTA CLARA COUNTY et al. (WICKETT, Intervenor).

Civ. 14548.

Decided: September 22, 1950

Campbell, Hayes & Custer and Edwin J. Owens, all of San Jose, for intervenor and appellant. Fred N. Howser, Attorney General, J. B. Peckham, John H. Machado and Peter J. Mancuso, all of San Jose, for plaintiffs and respondents.

The People of the State through its attorney general commenced this action to determine the validity of a charter adopted by the electors of Santa Clara County, and duly approved by the State Legislature. Fred A. Wickett, an interested elector and chairman of the Board of Freeholders, was granted leave to intervene in support of the charter. Judgment went in favor of the applicant and the intervenoe prosecutes this appeal. The county counsel also took an appeal but later, with the cooperation of the Board of Supervisors, he withdrew his appeal.

The attack upon the charter is based on the sole ground that in five numbers of the newspaper publication the language of four sections was transposed (without, however, any change in meaning or text). Briefly the facts are: The Constitution requires ten publications in a newspaper. Ten were made of which five were literally correct. In the remaining five a portion of section 202 relating to requirements of eligibility for election to the Board of Supervisors appeared at the end of section 402, and a portion of section 303 fixing the salary of the County Executive appeared at the end of section 402. It is undisputed that all the provisions of the proposed charter were fully published for the ten times required by the Constitution, the only complaint being that in five of those publications some of the language appeared under the wrong section number—but without any change in the meaning. The legislature presumably considered these imperfections of no importance and, on June 15, 1949, approved the charter as submitted pursuant to the provisions of Art. XI, Sec. 7 1/212 of the Constitution.

There is no dispute as to the facts upon which the judgment is based, and, notwithstanding the lengthy findings which are merely conclusions of law the controlling question is whether the publication substantially complied with the terms of the Constitution. And this is a question of law. If it is necessary to refer to the facts to determine that question we are not limited to the findings of the trial court since they are not based on conflicting evidence or possible inferences. Here the case is like one based on a stipulation of facts and the conclusions of law based on the undisputed facts are open to review. E. J. Stanton & Sons v. County of Los Angeles, 78 Cal.App.2d 181, 193, 177 P.2d 804; In re Estate of Fleming, 31 Cal.2d 514, 523, 190 P.2d 611.

Arguing that the approval of the charter by the legislature forecloses judicial review of the procedural steps leading to the approval appellant cites Taylor v. Cole, 201 Cal. 327, 257 P. 40, holding that such legislative approval was a final and conclusive determination that no material unconstitutional irregularities occurred. The later case of People v. City of San Buenaventura, 213 Cal. 637, 3 P.2d 3, did not follow the Taylor case and did not overrule it. It should be noted that in the San Buenaventura case the city authorities made no attempt to comply with the Constitution and that no publication at all was made. In the later case of Santa Clara County v. Superior Court, 33 Cal.2d 552, 203 P.2d 1, these two cases were discussed in both the majority and the minority opinion and we must conclude that from the failure of the court to overrule either both must still be deemed to the authority. A fair analysis of the two opinions is that when there is a substantial failure to comply with the constitutional requirements which is apparent on the face of the proceedings, the San Buenaventura case, the recital of the legislature is not conclusive, but, where some trivial departure from such requirements occurs, in the Taylor case the city council failed to notify the electors that copies of the prepared charter amendments could be had on application, or when the alleged departure from the strict course is a matter of doubt, or one not prejudicially affecting the rights of the people then the doctrine of substantial compliance clothes the certificate of approval of the legislature with the mantle of a conclusive finding that the proceedings leading to the adoption and approval of the charter conformed with the constitutional requirements. In the Taylor case the Supreme Court specifically held, 201 Cal. page 333, 257 P. page 42, that petitioners were correct in their contention that the act of the legislature in ‘confirming the amendments by resolution, after a consideration thereof, conclusively presupposes that the validity of said election proceedings was examined, proof taken thereon, and findings made that said election was in all respects regular’.

It is apparent that when there has been no compliance with the constitutional requirements and the failure is conceded the approval by the legislature could not possibly rest on the doctrine of substantial compliance. This explains some of the confusion in these decisions which is referred to in the dissenting opinion in the Santa Clara case, 33 Cal.2d 552, 203 P.2d 1. It should be noted however that that case was not fairly presented to the Supreme Court. The dissenting opinion emphasizes the allegation of the complaint reading, 33 Cal.2d page 562, 203 P.2d 7: “that said newspaper failed to publish said proposed charter any greater number than five times before such election; and no such publishing for ten times was made in any such newspaper. * * *” If that allegation were true the Santa Clara case would be squarely within the facts of the San Buenaventura case where no publication was made because if only five publications had been made when the Constitution required ten no question of substantial compliance could arise. If the true facts had been before the court in the Santa Clara case it is fair to assume that there would have been no dissent as the only question then in the case would have been the one of proper remedy.

In the proceeding here the conceded facts are that all ten publications were made, that in five of them there was some transposition of the language of three or four sections without any omissions of or additions to the language proposed by the freeholders. Whether these disputed publications were sufficient to meet the constitutional requirements thus became a question of fact for the legislature and not for the courts. In this respect we are bound by the express rule of the Taylor case.

Here it is pertinent to add in reference to the substantial compliance theory that full notice was given the electors of all the provisions of the proposed charter. The Constitution does not require perfection in publication beyond the element of human error. If this were not so the will of the People could be thwarted in every instance by the carelessness of a printer or compositor in altering the number of a single section. The constitutional section was enacted in the interest of the people as a whole and their rights should not be denied by hypertechnical judicial construction. There is no super human agency supervising the conduct of public officials in the performance of their official duties. Statutes are enacted, both mandatory and directory, which fix the required standards but error occurs, either innocently or by design, and in such cases the courts always seek to preserve the rights of the public as against those of the individual. As in the case of errors occurring in judicial proceedings those which are found nonprejudicial are disregarded. So here the errors in publication complained of could not have prejudiced the voting public in any particular. We conclude that the legislature exercised its proper function when it reached the conclusion that these errors were of no consequence and that the provisions of the Constitution were substantially complied with.

There is no merit in respondent's contention that appellant was without right to intervene. That right was granted in the trial court and the trial was had without objection.

Likewise the contention that the question is moot because steps are being taken to propose a new charter. The proposal may not be submitted to the electors, and if it is the voters may reject it.

We are not impressed with the suggestion of respondent that this appeal should be dismissed because the Board of Supervisors, represented by the county counsel, did not continue with their appeal. If there is any doubt of the right of a citizen and taxpayer to intervene in a case of this character the proceedings here fully dispel that doubt. Indeed in such an instance the intervention would seem to be all the more warranted.

The judgment is reversed with directions to enter judgment in accordance with the prayer of the intervenor.

NOURSE, Presiding Justice.

GOODELL and DOOLING, JJ., concur.

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