SAN FRANCISCO FIRE FIGHTERS LOCAL 798 INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS AFL CIO v. BOARD OF SUPERVISORS OF CITY AND COUNTY OF SAN FRANCISCO

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Court of Appeal, First District, Division 1, California.

SAN FRANCISCO FIRE FIGHTERS, LOCAL 798, INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, AFL-CIO, Plaintiff and Appellant, v. BOARD OF SUPERVISORS OF the CITY AND COUNTY OF SAN FRANCISCO et al., Defendants and Respondents.

The PEOPLE ex rel. George EVANKOVICH et al., Plaintiffs and Appellants, v. CITY AND COUNTY OF SAN FRANCISCO, Defendant and Respondent.

Civ. 38823, 40705.

Decided: December 14, 1977

Davis, Cowell & Bowe, Philip Paul Bowe, Duane W. Reno, San Francisco, for plaintiff/appellant S. F. Fire Fighters, Local 798. Evelle J. Younger, Atty. Gen., Clayton P. Roche, Deputy Atty. Gen., San Francisco, Neyhart & Anderson, John L. Anderson, Jerome M. Garchik, San Francisco, Brundage, Beeson & Pappy, Stephen H. Naiman, Los Angeles, for plaintiff/appellant The People ex rel. Evankovich. Thomas M. O'Connor, City Atty., George E. Baglin, Burk E. Delventhal, Deputy City Attys., San Francisco, for defendants/respondents.

These two actions were separately commenced in the superior court for the purpose of obtaining judicial declarations that an election, by which the voters of the City and County of San Francisco (hereafter “City”) purported to amend the City's charter, was void and without legal effect. In proceedings of the nature of general demurrers to the complaints, the superior court in each action concluded that no cause of action had been, or could be, stated, and accordingly entered judgments of dismissal.

The plaintiffs of the respective actions have appealed from the judgments. Since the issues are substantially the same we have consolidated the two appeals for hearing and determination.

Certain long-established basic principles are apposite to our consideration of the appeals.

An “election must be held valid unless plainly illegal.” (Rideout v. City of Los Angeles, 185 Cal. 426, 430, 197 P. 74, 75; see also In re East Bay etc. Water Bonds of 1925, 196 Cal. 725, 744, 239 P. 38; People v. Prewett, 124 Cal. 7, 10, 56 P. 619; Willburn v. Wixson, 37 Cal.App.3d 730, 736, 112 Cal.Rptr. 620; Menlo Park City School Dist. v. Tormey, 218 Cal.App.2d 76, 80, 32 Cal.Rptr. 82.)

“The courts are reluctant to defeat a fair expression of popular will in an election and will not do so unless required by the plain mandate of the law.” (Veterans' Finance Com. of 1943 v. Betts, 55 Cal.2d 397, 401, 11 Cal.Rptr. 103, 105, 359 P.2d 471, 473; City of Coronado v. San Diego Unified Port Dist., 227 Cal.App.2d 455, 468, 38 Cal.Rptr. 834.)

“It is the general rule that any errors or defects claimed to exist in a notice of election will not invalidate the election unless there is some showing that the electors were in fact misled by such defects.” (Veterans' Finance Com. of 1943 v. Betts, supra, 55 Cal.2d 397, 401, 111 Cal.Rptr. 103, 105, 359 P.2d 471, 473.)

It is firmly held that an election will not be set aside because the officials in control of it “have failed to strictly comply with the law, where it appears that no harm was done thereby, . . .” (Hayes v. Kirkwood, 136 Cal. 396, 402, 69 P. 30, 32; see also In re East Bay etc. Water Bonds of 1925, supra, 196 Cal. 725, 744, 239 P. 38; Kenworthy v. Mast, 141 Cal. 268, 271, 74 P. 841; Willburn v. Wixson, supra, 37 Cal.App.3d 730, 736-737, 112 Cal.Rptr. 620; Dennen v. Jastro, 23 Cal.App. 264, 267, 137 P. 1069.)

And “every reasonable presumption and interpretation is to be indulged in favor of the right of the people to exercise the elective process.” (Hedlund v. Davis, 47 Cal.2d 75, 81, 301 P.2d 843, 847.)

From the complaints, and from such public records as the superior court was asked to judicially notice, the following factual context appears.

In August 1975, plaintiff San Francisco Fire Fighters, Local 798, International Association of Fire Fighters, AFL-CIO called an illegal strike1 of its fire fighter members employed by the City. The strike was joined by others, including the uniformed members, generally, of the City's police department.

Pursuant to the state's Constitution, article XI, section 3 (see fn. 4, post ), and Government Code section 34459 which implements that constitutional provision,2 the City's governing body, its board of supervisors, on its own motion, thereafter submitted proposals for amendment of the City's charter to its electors at an election to be held November 4, 1975. The proposals were designated ballot propositions B, O, P and Q.

Proposition B would repeal the City's charter section 8.403, which related to certain of the City's “craft” wage and salary setting procedures.

Proposition O would add section 8.345 to the City's charter. It provided for the dismissal of fire fighters and policemen who strike.

Proposition P would amend section 8.405 of the charter to provide that the City's fire fighters' and policemen's wages shall equal the average paid for similar services by other California cities with populations of 350,000 or more.

Proposition Q would amend the City's charter section 8.452 by limiting a fire fighter's continuous working period to 14 hours.

The four propositions were adopted by the City's voters at the November 4, 1975, election. It is as to those charter amendments that the instant actions' plaintiffs (hereafter, for convenience, the Unions) seek to have the election declared void and of no legal effect.

I. The first issue presented for our consideration is phrased in this manner: “Whether a cause of action was stated by the allegations of the complaint(s) that the Board of Supervisors failed to comply with the procedural requirements of Sections 3504.5 and 3505 of the Government Code prior to submitting to the electorate proposed amendments to the San Francisco Charter which change wages, hours, and other terms and conditions of municipal employment.”

Sections 3504.5 and 3505 are part of the Meyers-Milias-Brown Act which is codified as part 7, division 4, chapter 10 (entitled “Local Public Employee Organizations”) and as sections 3500-3510, of the Government Code.

It provides, inter alia, that “public employees shall have the right to form, join, and participate in the activities of employee organizations of their own choosing for the purpose of representation on all matters of employer-employee relations.” (Gov.Code, s 3502.) It also requires that the public employer “shall give reasonable written notice to (the) employee organization affected of any ordinance, rule, resolution, or regulation directly relating to matters” with the employee organization's scope of representation, and give the “employee organization the opportunity to meet with” representatives of the public employer. (Gov.Code, s 3504.5.) It then provides that such public employer representatives and the employee organization “shall meet and confer in good faith” in respect of such matters. (Gov.Code, s 3505.) (The emphasis of this paragraph has been supplied by us.)

It is now firmly held that the Meyers-Milias-Brown Act is binding, not only on “general law” cities, but also on “charter” cities such as the City of San Francisco.

But the Unions contend that the City's charter amendment election was void by reason of the board of supervisors' failure to “give reasonable written notice” to, and “meet and confer in good faith” with, the Unions as required by the Meyers-Milias-Brown Act, in relation to the proposed charter amendments.3

We find the contention invalid, and for the several following reasons.

At the threshold of our immediate inquiry it is proper to note that the City's electorate had the absolute and untrammelled right to legislate, by way of amendment to the City's charter by popular vote, in respect of the subject matter of propositions B, O, P and Q. The Unions make no contrary contention; nor do they argue that the state, or the Legislature, has in any way preempted such matters. Indeed, they, or at least some of them, expressly agree that such questions are “a proper subject for local option.”

This right of the City has its roots in the state's Constitution, article XI, section 5, subdivision (b), which provides:

“It shall be competent in all city charters to provide, in addition to those provisions allowable by this Constitution, and by the laws of the State for: (1) the constitution, regulation, and government of the city police force (2) subgovernment in all or part of a city (3) conduct of city elections and (4) plenary authority is hereby granted, subject only to the restrictions of this article, to provide therein or by amendment thereto, the manner in which, the method by which, the times at which, and the terms for which the several municipal officers and employees whose compensation is paid by the city shall be elected or appointed, and for their removal, and for their compensation, and for the number of deputies, clerks and other employees that each shall have, and for the compensation, method of appointment, qualifications, tenure of office and removal of such deputies, clerks and other employees.” (Emphasis added.)

It is worthy of emphasis here, for the constitutional authority is so emphatic, that the City's right to so amend its charter is “plenary,” i. e., “unlimited (but for art. XI) by any other provision of the constitution” (Sacramento v. Industrial Acc. Com., 74 Cal.App. 386, 395, 240 P. 792), and “full, entire, complete, absolute, perfect, unqualified” (32A Words and Phrases (1956) Plenary p. 329; Black's Law Dict. (4th rev. ed. 1968) p. 1313, col. 2.)

The power to so amend the City's charter is confided by the state's Constitution to the City's voters, who may do so “by majority vote of its electors voting on the question.” (Cal.Const., art. XI, s 3, subd. (a).)

The means provided by the state's Constitution for calling such a charter amendment election is a proposal therefor by the city's governing body, or by an initiative petition of its electors. (Cal.Const., art. XI, s 3, subd. (b).)4

It is apparently in recognition of the absolute power of the City's voters to amend the charter in matters such as propositions B, O, P and Q, that the Unions contend only that the amendments were not proposed by the City's governing body in the manner provided by law.

We are, as pointed out, concerned with the debated need for the City's governing body to comply with the “notice” and “meet and confer” provisions of a statute, the Meyers-Milias-Brown Act, before proposal of amendments to the City's charter.

It is a strict rule that such legislation as the Meyers-Milias-Brown Act is subordinate to any related constitutional provision “ ‘and must not in any particular attempt to narrow or embarrass it.’ ” (Chesney v. Byram, 15 Cal.2d 460, 464, 101 P.2d 1106, 1108; Chester v. Hall, 55 Cal.App. 611, 616, 204 P. 237.) “ ‘It is not and will not be questioned but that if the constitution has vested such power, it is not within the legislative power, either by its silence or by direct enactment, to modify, curtail, or abridge this constitutional grant.’ ” (People v. Western Air Lines, Inc., 42 Cal.2d 621, 637, 268 P.2d 723, 732; Western Assn. etc. R. R. v. Railroad Comm., 173 Cal. 802, 804, 162 P. 391.) And it has been held “self-evident that the legislature itself could not abridge nor even hamper the exercise of those powers” reserved by the Constitution to the electors of a city or county. (Brown v. Boyd, 33 Cal.App.2d 416, 421, 91 P.2d 926, 930.)

Where the state's Constitution, as here, reserves legislative power to the people, statutes will be liberally construed so as to give effect to that power. (Warner v. Kenny, 27 Cal.2d 627, 629, 165 P.2d 889; Gage v. Jordan, 23 Cal.2d 794, 799, 147 P.2d 387; Ley v. Dominguez, 212 Cal. 587, 593, 299 P. 713.)

It will thus be seen that article XI, section 3, of the state's Constitution gives to the City's board of supervisors the unabridged right to propose charter amendments to the City's electors.

Were we to accept the Unions' argument of the applicability of the Meyers-Milias-Brown Act, then the City's board of supervisors before proposing any charter amendment affecting the conditions of employment of its fire fighters, policemen or “craft” tradesmen, must give written notice thereof to the appropriate union. Representatives of the board of supervisors or the City must then meet and confer in good faith with the union on whether there shall be such a charter amendment proposal, and if so, then on its terms. The parties must display “a genuine desire to reach agreement,” and “must make a serious attempt to resolve differences and reach a common ground . . . .” (Placentia Fire Fighters v. City of Placentia, 57 Cal.App.3d 9, 25, 129 Cal.Rptr. 126, 138.) The union would be entitled to “a voice” in respect of the proposed charter amendment and its contents. (See California Federation of Teachers v. Oxnard Elementary Sch., 272 Cal.App.2d 514, 524, 77 Cal.Rptr. 497.) And if the City's representatives should fail to meet the union's concept of conferring in “good faith,” then the proposed charter amendment election, at the latter's option, will ordinarily await the outcome of appropriate mandate proceedings. (Huntington Beach Police Officers' Assn. v. City of Huntington Beach, 58 Cal.App.3d 492, 129 Cal.Rptr. 893.)

It is also settled that the constitutionally prescribed method of amending a city's charter is “exclusive” and “mandatory,” and any other method is “prohibited.” (State Board of Education v. Levit, 52 Cal.2d 441, 461, 343 P.2d 8; Santa Clara County v. Superior Court, 33 Cal.2d 552, 554, 293 P.2d 1; Blanchard v. Hartwell, 131 Cal. 263, 266-267, 63 P. 349; Garver v. Council of City of Oakland, 96 Cal.App. 560, 562, 274 P. 375.) “The mode provided in the constitution for the proposal of charters is deemed to be the measure of power.” (Doran v. Foster, 189 Cal. 610, 611, 209 P. 548; and see People v. City of San Buenaventura, 213 Cal. 637, 640, 3 P.2d 3.) The Unions' instant argument would add to the constitutional requirements for amending the City's charter other conditions, in clear contravention of this rule.

It becomes patent that giving the Meyers-Milias-Brown Act the interpretation and effect argued for by the Unions would constitute an invalid abridgment of the state's constitutional dictate that an amendment of the City's charter “may be proposed by initiative or by the governing body.”

It is also noted that the Legislature has interpreted the state's Constitution, article XI, section 3, as providing that a city's charter may be amended only by “proposals submitted by the governing body on its own motion ” (emphasis added) or by initiative petition. (See Gov.Code, s 34459, fn. 2, ante.) Charter amendment proposals requiring the combined “voice” of the City's governing body and the Unions, after “a serious attempt to resolve differences and reach a common ground,” may not reasonably be deemed proposals by the governing body “on its own motion.”

We further observe that the Meyers-Milias-Brown Act's requirements of “written notice” (Gov.Code, s 3504.5), and to “meet and confer” (Gov.Code, s 3505), apply to any “ordinance, rule, resolution, or regulation directly relating to matters within the scope of representation proposed to be adopted by the governing body . . . .” (Emphasis added.) The proposed charter amendments here under consideration may not reasonably be deemed an “ordinance, rule, resolution, or regulation . . . proposed to be adopted by the governing body”; the proposal instead was for adoption by the City's voters.

And such matters as enactment of an “ordinance, rule, resolution, or regulation” relating to “employment conditions and employer-employee relations” (see Gov.Code, s 3504) are obviously legislative acts of the governing body. But in proposing charter amendments the governing body is not engaging in legislative action. (Clark v. Patterson, 68 Cal.App.3d 329, 336, 137 Cal.Rptr. 275.) Such an authority is unique; it is a nonlegislative power confided by the Constitution in a legislative body. (See Oakland Paving Co. v. Hilton, 69 Cal. 479, 514, 11 P. 3; Hatch v. Stoneman, 66 Cal. 632, 634, 6 P. 734.)

It is also notable that the state's Constitution, article XI, section 3, and its implemental statute, Government Code section 34459, treat the right to amend a city's charter as a legislative right reserved to the city's voters, to be effectuated only through the initiative process or proposal of their elected governing body. “ ‘(I)n order to protect the people of this state in the exercise of this reserved legislative power, statutory or charter provision (dealing with such matters) should be afforded the same liberal construction afforded election statutes generally.’ ” (Blotter v. Farrell, 42 Cal.2d 804, 809, 270 P.2d 481, 484; Ley v. Dominguez, supra, 212 Cal. 587, 593, 299 P. 713.) It is “ ‘the duty of the courts to jealously guard this right of the people’ . . . .” (Associated Home Builders etc., Inc. v. City of Livermore, 18 Cal.3d 582, 591, 135 Cal.Rptr. 41, 45, 557 P.2d 473, 477; Martin v. Smith, 176 Cal.App.2d 115, 117, 1 Cal.Rptr. 307.) Such a reserved power in the electorate has been alluded to “as an instance of ‘fundamental democracy’ as opposed to ‘representative government’ . . . .” (Gayle v. Hamm, 25 Cal.App.3d 250, 257, 101 Cal.Rptr. 628, 634.) “ ‘(I)t has long been our judicial policy to apply a liberal construction to this power wherever it is challenged in order that the right be not improperly annulled. If doubts can reasonably be resolved in favor of the use of this reserved power, courts will preserve it.’ ” (Associated Home Builders etc., Inc. v. City of Livermore, supra, 18 Cal.3d p. 591, 135 Cal.Rptr. p. 45, 557 P.2d p. 477; Gayle v. Hamm, supra, 25 Cal.App.3d p. 258, 101 Cal.Rptr. 628; Mervynne v. Acker, 189 Cal.App.2d 558, 563-564, 11 Cal.Rptr. 340.)

The impossibility of application of the Meyers-Milias-Brown Act to a city's charter amendment proposed to its voters by way of the Constitution's alternative “initiative” procedure is readily apparent. A statutory intent, or recognition, that the act does not apply in such a case, but nevertheless does apply when the same amendment is proposed, under the same constitutional and statutory sections, by a city's governing body, seems most improbable. “It is the duty of the courts, whenever possible, to interpret statutes so as to make them workable and reasonable.” (City of Santa Clara v. Von Raesfeld, 3 Cal.3d 239, 248, 90 Cal.Rptr. 8, 13, 474 P.2d 976, 981.)

Finally, as to the instant issue, we discern that the Meyers-Milias-Brown Act also provides: “The scope of representation shall include all matters relating to employment conditions and employer-employee relations . . . except, however, that the scope of representation shall not include consideration of the merits (or) necessity . . . of any . . . activity provided by law . . . .” (Gov.Code, s 3504; emphasis added.)

Relying on Fire Fighters Union v. City of Vallejo, 12 Cal.3d 608, 616-617, 116 Cal.Rptr. 507, 526 P.2d 971, the Unions contend that this statutory exception to the operation of the Meyers-Milias-Brown Act was “intended by the Legislature to do nothing more than establish that the scope of bargaining in the public sector shall be no broader than the scope of bargaining in the private sector . . . .” But Fire Fighters Union v. City of Vallejo went further. It found a legislative intent in the statute's “limiting language not to restrict bargaining on matters directly affecting employees' legitimate interests in wages, hours and working conditions but rather to forestall any expansion of the language of ‘wages, hours and working conditions' to include more general managerial policy decisions.” (Emphasis added.) The court also found the clause to have resulted from a “trepidation that the union would extend its province into matters that should properly remain in the hands of (the public) employers . . . .”

We are of the opinion that section 3504 also renders the Meyers-Milias-Brown Act inapplicable to the case at hand. The question whether a city's governing body shall propose a charter amendment to the city's voters is in the nature of a “general managerial policy decision,” to which the Meyers-Milias-Brown Act is rendered inapplicable by that statute, and Fire Fighters Union v. City of Vallejo, supra, 12 Cal.3d 608, 116 Cal.Rptr. 507, 526 P.2d 971. And we opine that the decision whether to propose a charter amendment to a city's voters, and if so, the content of the proposal, “should properly remain in the hands of (the public) employers . . . .”

The Unions also vigorously assert: “If there were merit to (the City's) contention, municipal employees in a general law city would have the right under the Meyers-Milias-Brown Act to negotiate with their employer over any and all proposed changes in their wages, hours and other terms and conditions of employment; while municipal employees in a chartered city would be denied that same right because their employer would be able to avoid all obligations to negotiate with its employees merely by submitting matters relating to municipal employment as proposals to the electorate for adoption into the city charter.”

We think the argument overlooks the clear, intentional and inevitable distinction between general law cities and chartered cities. General law cities, in respect of municipal matters, have chosen to remain governed by general laws enacted by the Legislature; in the enactment of such general laws by the Legislature the Meyers-Milias-Brown Act patently does not apply. On the other hand, the citizens of chartered cities have rejected that concept of government and have elected to be governed by a charter which they themselves legislated into existence by majority vote. Here also, in legislation by the city's electors on the provisions of their charter, and for the reasons we have pointed out, the Meyers-Milias-Brown Act is likewise inapposite. Either form of city government will undoubtedly have what some will consider benefit, or detriment, which the other does not have. But a city's people, and its employees, are nevertheless bound by the chosen scheme of local government.

The second issue presented by the Unions is stated as follows: “Whether a cause of action was stated by the allegations of the complaint(s) that the submission to the electorate and subsequent adoption of the proposed amendments to the San Francisco Charter set forth in ballot propositions (‘B’), ‘O’, ‘P’ and ‘Q’ contravened a written agreement executed by Mayor Joseph L. Alioto in the exercise of emergency powers granted him by the Charter.”

The issue is based upon section 3.100 of the City's charter which provides:

“In case of public emergency involving or threatening the lives, property or welfare of the citizens, or the property of the city and county, the mayor shall have the power, and it shall be his duty, to summon, organize and direct the forces of any department in the city and county in any needed service; to summon, marshal, deputize or otherwise employ other persons, or to do whatever else he may deem necessary for the purpose of meeting the emergency. The mayor may make such studies and surveys as he may deem advisable in anticipation of any such emergency.”

Under the claimed authority of this provision the City's mayor declared an emergency on account of the fire fighters' and policemen's strike, and then himself reached and signed, on behalf of the City, an agreement acceptable to the Unions. The agreement declared in part: “4. Amnesty. The City agrees that as an essential condition of this Agreement it shall provide ‘Total Amnesty’ as to all occurrences arising out of or related to the recent labor dispute. ‘Total Amnesty’ shall include, but not be limited to, action of any kind which in any way adversely affects or discriminates in regard to hire or tenure of employment, or any wages, terms or conditions of employment.” The proposed charter amendments were contrary to the amnesty agreement.

The Unions argue that since section 3.100 of the City's charter gave the mayor power to do whatever “he may deem necessary for the purpose of meeting the emergency,” the City's electors were powerless to amend the charter in any manner contrary to the “Amnesty” provision of the agreement signed by the mayor.

This argument also lacks validity. Such power as the mayor may have had to declare an emergency and agree to conditions of the strike's settlement was derived from the City's charter. The charter was subject to “conflicting provisions in the United States and California Constitutions, and to preemptive state law.” (Harman v. City and County of San Francisco, 7 Cal.3d 150, 161, 101 Cal.Rptr. 880, 887, 496 P.2d 1248, 1255.) Among such conflicting provisions were Government Code section 34459, and the state's Constitution, article XI, section 3, empowering the City's board of supervisors to propose charter amendments for consideration by the City's electors. We accordingly find the Unions' second contention also to be invalid.

No merit is seen in the Unions' contention that a holding of Glendale City Employees' Assn., Inc. v. City of Glendale, 15 Cal.3d 328, 124 Cal.Rptr. 513, 540 P.2d 609 (cert. den., 424 U.S. 943, 96 S.Ct. 1411, 47 L.Ed.2d 349), somehow validates the City's mayor's “amnesty agreement.” In that case, an agreement between the city's legislative body, with full constitutional, statutory and charter authority to enter into such an agreement, and the city employees' association was declared valid. Here, as we have pointed out, the City's mayor was without authority to abrogate constitutional requirements for amendment of the City's charter.

The remaining argument of the Unions is that the City's charter amendment election was void because it was “submitted in violation of mandatory and prohibitory provisions (of s 2.23) of the San Francisco Administrative Code.”

Section 2.23, and the administrative code in which it was to be found, were enacted by ordinance of the City's board of supervisors. The section's preamble stated: “Any proposal for amendment of the charter ordered submitted to the electors by the board of supervisors on its own motion shall be so ordered pursuant to the provisions of applicable state law, with the further limitations imposed as follows: . . .” There follow generally provisions for reference of the proposed amendment to, and reports thereon from, a committee of the board of supervisors and certain of the City's agencies and officials, and concerning allotted time periods therefor.

The complaints of the Unions' actions and judicial notice properly taken by the trial court established, and it appears conceded, that the requirements of section 2.23 were not substantially followed by the City's board of supervisors in relation to the charter amendment election.

The City contends that the section constituted an invalid self-imposed abridgment (it will be noted that it is expressly described as “limitations” by its preamble) of the constitutional power conferred upon its board of supervisors to propose charter amendments. The Unions, on the other hand, insist that it was implemental (as found proper in Chesney v. Byram, supra, 15 Cal.2d 460, 464, 101 P.2d 1106, and Warner v. Kenny, supra, 27 Cal.2d 627, 629, 165 P.2d 889) of the constitutional authority to propose such charter amendments.

We need not resolve this argument for, assuming arguendo the validity of the Unions' position thereon, we are of the opinion that other legal principles mandate the conclusion that the Unions' final contention is likewise without merit.

In Rideout v. City of Los Angeles, supra, 185 Cal. 426, 430-431, 197 P. 74, 75, it is stated: “It is a primary principle of law as applied to election contests that it is the duty of the court to validate the election if possible. That is to say, the election must be held valid unless plainly illegal. . . . Accordingly, a distinction has been developed between mandatory and directory provisions in election laws; a violation of a mandatory provision vitiates the election, whereas a departure from a directory provision does not render the election void if there is a substantial observance of the law and no showing that the result of the election has been changed or the rights of the voters injuriously affected by the deviation. . . . Whether or not a provision, the observance of which is not expressly declared by law to be essential to the validity of the election, is mandatory or merely directory, depends upon the character of the act prescribed. If the act enjoined goes to the substance or necessarily affects the merits or results of the election, it is mandatory; otherwise directory.”

Menlo Park City School Dist. v. Tormey, supra, 218 Cal.App.2d 76, 80-81, 32 Cal.Rptr. 82, 84, quotes with approval these rules: “ ‘(W)e are of the opinion that the correct rule, and the one supported by the great weight of authority, may be stated as follows: Statutory directions as to the time and manner of giving notice of elections are mandatory upon the officers charged with the duty of calling the election, and will be upheld strictly in a direct action instituted before an election; but after an election has been held, such statutory requirements are directory, unless it appears that the failure to give notice for the full time specified by the statute has prevented electors from giving a full and free expression of their will at the election, or unless the statute contains a further provision, the necessary effect of which is that failure to give notice for the statutory time will render the election void. . . .’ . . . ‘Upon considerations like these the courts have held that the voice of the people is not to be rejected for a defect, or even a want of notice, if they have, in truth, been called upon and have spoken.’ ”

Dennen v. Jastro, supra, 23 Cal.App. 264, 267, 137 P. 1069, 1076, says: “A failure to comply with some technical direction of the statute, where due alone to mistake or inadvertence on the part of those whose duty it is to prepare and furnish the ballot, should not disfranchise the entire vote of the district and vitiate the election, unless it be made to appear that by reason of the irregularity the result was different from what it would otherwise have been, or that it prevented the voter from freely, fairly, and honestly expressing his choice . . . .”

The rule has often been iterated; see Canales v. City of Alviso, 3 Cal.3d 118, 127, 89 Cal.Rptr. 601, 474 P.2d 417; Scott v. Kenyon, 16 Cal.2d 197, 202, 105 P.2d 291; Davis v. County of Los Angeles, 12 Cal.2d 412, 426-427, 84 P.2d 1034; Kenworthy v. Mast, supra, 141 Cal. 268, 271, 74 P. 841; Hayes v. Kirkwood, supra, 136 Cal. 396, 401-402, 69 P. 30; Murphy v. City of San Luis Obispo, 119 Cal. 624, 632, 51 P. 1085; Atkinson v. Lorbeer, 111 Cal. 419, 421, 44 P. 162; Tebbe v. Smith, 108 Cal. 101, 111-112, 41 P. 454; Russell v. McDowell, 83 Cal. 70, 77-78, 23 P. 183; Alden v. Superior Court, 212 Cal.App.2d 764, 771-772, 28 Cal.Rptr. 387.

It does not appear from the Unions' complaints or otherwise, nor do they contend, that the City's board of supervisors' failure to follow section 2.23 “injuriously affected the rights of the voters,” or “affected the results of the election,” or “prevented electors from giving a full and free expression of their will at the election,” or “from freely, fairly, and honestly expressing (their) choice . . ..”

It follows that the requirements of section 2.23 in the case before us must be deemed directory, and that the City's board of supervisors' failure to observe them did not affect the validity of the charter amendment election.

IV. For these several reasons the complaints of the Unions' actions and relevant judicial notice taken in aid of them established no cause of action against the City, or its board of supervisors, or anyone, and the respective judgments of dismissal were properly entered.

It is found unnecessary to consider other contentions and points raised by the parties, including the City's contention that an official act of a state or municipal legislative body will never be declared void for noncompliance with rules of procedure made by itself (see City of Pasadena v. Paine, 126 Cal.App.2d 93, 96, 271 P.2d 577; McDonald v. State, 80 Wis. 407, 50 N.W. 185, 186; South Georgia Power Co v. Baumann, 169 Ga. 649, 151 S.E. 513, 516), and the argument that the San Francisco Fire Fighters' union may not rely upon an agreement whose validity depends upon an emergency created by itself in violation of law (see Lab.Code, § 1962).

The judgments are affirmed.

FOOTNOTES

1.  Labor Code section 1962, dealing with publicly employed fire fighters, provides:“Employees shall have the right to self-organization, to form, join, or assist labor organizations, to present grievances and recommendations regarding wages, salaries, hours, and working conditions to the governing body, and to discuss the same with such governing body, through such an organization, but shall not have the right to strike, or to recognize a picket line of a labor organization while in the course of the performance of their official duties.” (Emphasis added.)

2.  Government Code section 34459 states:“The charter of any city may be amended or repealed by proposals submitted by the governing body on its own motion or by petition signed by 15 percent of the registered electors, or both.“The charter of a city and county may be amended or repealed by proposals submitted by the governing body or by a petition signed by 10 percent of the qualified electors of the city and county, computed upon the total number of votes cast in the city and county for all candidates for Governor at the last general election at which a Governor was elected, or both. Such proposals shall be submitted to the electors at either a special election called for that purpose or at any general or special election.”

3.  No contention is made that the Meyers-Milias-Brown Act was not fully complied with in the fruitless negotiations leading to the strike of August 1975.

4.  The full text of the state's Constitution, article XI, section 3, provides:“(a) For its own government, a county or city may adopt a charter by majority vote of its electors voting on the question. The charter is effective when filed with the Secretary of State. A charter may be amended, revised, or repealed in the same manner. A charter, amendment, revision, or repeal thereof shall be published in the official state statutes. County charters adopted pursuant to this section shall supersede any existing charter and all laws inconsistent therewith. The provisions of a charter are the law of the State and have the force and effect of legislative enactments.“(b) The governing body or charter commission of a county or city may propose a charter or revision. Amendment or repeal may be proposed by initiative or by the governing body.“(c) An election to determine whether to draft or revise a charter and elect a charter commission may be required by initiative or by the governing body.“(d) If provisions of 2 or more measures approved at the same election conflict, those of the measure receiving the highest affirmative vote shall prevail.” (Emphasis added.)

ELKINGTON, Associate Justice.

SIMS, Acting P. J., and LAZARUS (Retired judge of the superior court sitting under assignment by the Chairperson of the Judicial Council), J., concur.