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MUEHLEISEN et al. v. FORWARD et al.a1
This is an original application for a writ of mandate to compel the respondents to forthwith call an election for the purpose of determining whether the voters of the city of San Diego will recall certain officers as demanded in petitions filed in the office of the city clerk.
Five petitions demanding the recall of four members of the city council and of the city attorney, respectively, were delivered to the city clerk on June 30, 1934. On July 10, 1934, the city clerk attached to each of said petitions a certificate to the effect that the number of valid signatures thereon was insufficient, and gave notice of such insufficiency to the persons filing said petitions. Within ten days thereafter supplemental petitions with additional signatures were delivered to the city clerk, and within ten days thereafter, to wit, on July 23, 1934, the city clerk attached to each petition a certificate setting forth facts showing that it contained a sufficient number of signatures of qualified voters, and on the same day presented all of the petitions to the city council. At the time of attaching said certificate of sufficiency to each of the petitions the city clerk removed from each the certificate of insufficiency which had been previously attached thereto.
The city council refused to call an election as demanded in the petitions, and this proceeding followed. A city council has no discretion as to the calling of an election where a petition is filed which substantially conforms to the provisions of law and which is properly certified by the clerk as containing a sufficient number of signatures. Martin v. Board of Trustees, 96 Cal. App. 705, 274 P. 1015. No attack is made upon the petitions here in question in so far as the number of qualified signers is concerned.
The principal contention of the respondents is that these petitions are insufficient both as to form and as to preliminary requisites, for the reason that the requirements of the general law of the state governing recall elections in cities (St. 1931, p. 563) were not complied with. In this connection it is pointed out that no notice of intention to submit such a petition for signatures, accompanied by a statement of the reasons for the proposed recall, was published or posted as required by said statute; that no such notice or statement was served upon any of the officials sought to be recalled and no affidavit of such service has been filed with the city clerk; that these petitions do not bear a copy of any such printed or posted notice of intention, or of any accompanying statement, or of any answer to said statement, if any, made by any of said officers; and that they do not contain any statement to the effect that the officers sought to be recalled have failed to make an answer. The first question to be determined then is as to whether these provisions of the statute referred to are controlling here.
Section 17 of the 1931 statute above referred to reads as follows: “This act is not intended to apply to those cities having a freeholders' charter, adopted under the provisions of section 8 of article XI of the constitution, and having in such charter provision for the recall of elective officials by the electors.” This is in accord with the established rule that recall elections in chartered cities are governed by charter provisions rather than by general laws, where such provisions are conflicting. In Bricker v. Banks, 98 Cal. App. 87, 276 P. 399, 400, it is said: “The recall of officers in a city having a special charter which provides for such a recall is a municipal affair and is not controlled by general laws inconsistent with the charter provisions in relation thereto.” In Scheafer v. Herman, 172 Cal. 338, 155 P. 1084, 1086, the court said: “The rule is that, where a freeholder's charter has provided a mode of removal of officers and that mode is resorted to, the general law cannot control the exercise of the power in that manner, or change the procedure required by the charter.” It has even been held that, where the charter has omitted so important a requirement of the general law as the one requiring that the petition shall contain a statement of the grounds on which the recall is sought, a petition conforming to the charter requirement is sufficient. Sidler v. City Council of Bakersfield, 43 Cal. App. 349, 185 P. 194.
Section 23 of article 3 of the charter of San Diego (St. 1931, pp. 2838, 2858) contains provisions for the recall of city officers, the material portions of which read as follows: “The right to recall municipal officers * * * are hereby reserved to the people of the City; such powers shall be exercised in the manner provided by the Constitution and general laws of the State of California. * * * And any elective official may be recalled from office, under the provisions of the Constitution and the general laws of the State, provided * * * that for the recall of an elected officer it shall require a petition signed by twenty-five per cent of the entire vote cast in the City at the last preceding election for the office of governor. Petitions for the Initiative, Referendum, or Recall shall be on forms prescribed by an ordinance of the Council and shall state in full the ordinance to be initiated or referred or the officer to be recalled with reasons for such recall. This statement shall appear at the head of each petition, followed by the signature and legal residence of each petitioner written in ink or indelible pencil, and by the affidavit of the person in charge of the petitions that the signatures have all been made in his presence by the persons whose names they purport to be, and are legal signatures to the best of his belief. The City Clerk shall pass on the number and legality of the signatures attached to each petition and shall give notice of the sufficiency or insufficiency of signatures on each petition. Supplementary petitions or additional signatures may be presented in the form and procedure provided above.”
It is thus provided that to recall an elected officer of this city requires a petition signed by the requisite number of voters; that the petition shall be on a form prescribed by ordinance; that the petition shall state the officer sought to be recalled with the reasons therefor; and that this statement shall appear at the head of each petition, followed by the signature and legal residence of each petitioner written in ink or indelible pencil, and by an affidavit of the person in charge of the petition covering certain facts. While certain details, such, for instance, as the time allowed to the clerk for checking the signatures on the petition, the time allowed for obtaining additional signatures, the time within which an election must be called, and the manner of conducting the election when called, are not covered by the charter provisions, and would undoubtedly be governed by general laws, we think the charter provision sufficiently sets forth that a recall election may be demanded by the filing of a petition and sufficiently enumerates what the petition shall contain. Since the only requirement of the charter is a petition signed by the requisite number of voters, and since the charter clearly states what the petition shall contain, the requirements of the general law that a notice of intention be published or posted, that the officers sought to be recalled shall be served, and that certain additional matters be included in the petition, are inconsistent with the charter provisions, and those portions of the general law can have no application. The petitions here in question comply with these charter provisions, and, in our opinion, are not rendered insufficient by any failure to comply with the additional requirements of the state law relied upon by the respondents. A procedure provided by charter which omits the requirement for publishing and serving notice of the grounds upon which a recall is sought is certainly a less drastic departure from the general law than a charter provision permitting a petition which does not even state the grounds upon which the proceeding is based. As a practical matter, it may be expected, under modern conditions, that an interested officer will discover the fact that recall proceedings have been initiated almost as soon without as with the formal notice.
It is also contended that these petitions for recall are insufficient in that they do not comply with the requirements of Ordinance No. 47 (new series) of the city of San Diego, in that they do not contain a copy of the printed or posted “Notice of Intention to Petition for Recall,” and that they contain neither any answer made by the officer sought to be recalled nor a statement that such officer has not made formal answer.
In the charter provision above quoted, the requirements as to what should be stated in the petition are preceded by the following: “Petitions for the Initiative, Referendum, or Recall shall be on forms prescribed by an ordinance of the Council.” Ordinance No. 47, above referred to, prescribes a form for petitions for recall. This form closely follows the requirements of the general law (St. 1931, p. 563) and, among other things, provides that the petition must contain a copy of the printed or posted notice of intention to petition for recall prescribed by that general statute, and also a copy of the answer made by the officer sought to be recalled or a statement to the effect that such officer has made no formal answer. The petitions in question were in the form prescribed in the ordinance, with the exceptions above mentioned. If we are correct in our conclusion that the charter provisions, rather than the general law, are controlling with reference to the contents of the petition and with reference to the necessity of publishing or posting a notice of intention, the additional requirements of Ordinance No. 47, herein referred to, are not controlling and cannot affect the sufficiency of these petitions. The charter having determined what is requisite to initiate a recall proceeding and what the petition shall contain, these requirements could not be changed by a city ordinance. If city officers who are themselves subject to recall could thus change the fundamental law, they could so add to the requirements as to make any recall election impossible. We think this clause of the charter, requiring a petition for recall to be on a form prescribed by an ordinance of the council, relates only to the ministerial act of preparing a form of petition, that it does not attempt to delegate the power to determine what shall be in the petition, and that it only authorizes the preparation of a form consistent with the provisions of the charter and in which the material required by the charter shall be set forth in an orderly manner.
It is next argued that it appears from the face of these petitions, one of which was admitted in evidence as an exemplar of all that such petitions were filed more than sixty days after the date of the earliest signature appearing thereon, and that evidence as to what actually occurred could not be received, as the same would tend to vary the terms and contents of a public document. The date of the earliest signature on the petition before us is May 16, 1934. The clerk's certificate of the sufficiency of the petition, attached thereto, is dated and marked filed on July 23, 1934. At the hearing in this proceeding the city clerk testified that the original petitions were filed with him as city clerk on June 30, 1934; that he checked the petitions within ten days to ascertain the number of signatures of qualified electors appearing thereon; that on July 10, 1934, he attached to each petition a certificate, a certified copy of which is before us, to the effect that the number of signatures on each petition was insufficient; that on that day he notified the man who brought the petitions to his office that the same were insufficient; that within ten days thereafter supplementary petitions with additional signatures were delivered to him as city clerk; and that, after checking the same and within ten days thereafter, to wit, on July 23, 1934, he removed from each petition his original certificate of insufficiency and attached to each petition a certificate of sufficiency. If we are to be technical in this matter, it does not appear from the face of the petitions that they were filed more than sixty days after the date of the earliest signature thereon. While the petitions were finally certified as sufficient on July 23, 1934, if allowance be made for the time the clerk had in which to examine and check the signatures on the supplemental portions of the petitions, they could easily have been filed with the clerk within sixty days after May 16. While the clerk did not stamp upon the petitions the date when they were originally filed with him or the date when the supplemental portions thereof were filed with him, we take it that the failure of the clerk to perform these ministerial acts could not nullify the proceeding. Moreover, there is nothing in the general law (St. 1931, p. 563) which requires that such a petition be filed within sixty days after the date of the first signature thereon. The only requirement of that statute is that the petition be filed within sixty days from the first publication or posting of the notice of intention, an act which was not required under the provisions of the charter. However, parol evidence as to what actually occurred cannot be said to have varied the terms and contents of a public document. This evidence related only to what had been done with a public document and when it was done. The certificates of insufficiency removed by the city clerk were also public documents and were retained by him in his office. These show that the original filing was within sixty days of the date of the earliest signature, if any such showing is considered necessary. In our opinion, the contention here made is without merit. Box et al. v. Young, 219 Cal. 243, 26 P.(2d) 290.
In 1933 an act was passed by the Legislature purporting to provide for the recall of officers of cities of the second and one-fourth class (St. 1933, p. 2153), which act is referred to in the briefs herein as the “Harper Bill.” The respondents assert that an attempt has been made in these proceedings to follow the provisions of the Harper Bill. It is then earnestly contended that this act is unconstitutional, since it does not apply uniformly to all cities, but is a special and local law upon a subject where a general law can be made applicable. It is further argued that, in any event, this act has no application to the city of San Diego, for the reason that the Legislature, in approving a new charter for that city in 1931, changed the classification thereof. It is unnecessary to consider these contentions for the following reasons: The recall petitions here involved, and all of the proceedings so far, conform to the charter provisions, and none of them refer to, relate to, or depend upon the provisions of the Harper Bill. Each petition demands the recall of the officer named therein. The Harper Bill provides that a petition shall be filed “demanding the election of a successor to the person sought to be removed.” The petitions herein contain no such a demand. Nor is this merely a technical difference. While the charter of the city of San Diego provides what the petition shall contain, it makes no provision for the machinery for conducting a recall election if one is called. Recourse would then be had to the general law (St. 1931, p. 563) for the method of holding the election. That general law provides that in such an election the electors shall be given an opportunity to vote, not only upon the question as to whether the officer shall be recalled, but also upon the question of whether the vacancy shall be filled by appointment or by special election, in the event the officer is recalled. Assuming that the electors could waive this right by signing a petition in the form required by the Harper Bill, no such waiver here appears, and the Harper Bill, even if valid and available under some circumstances, can have no application either on the questions before us or with respect to any future proceedings based upon these petitions which do not conform to its requirements. A further serious question as to whether the provisions of the Harper Bill are not inconsistent with the provisions of the city charter in requiring a different kind of petition than the one required by the charter need not be here considered.
Laws securing to the people the right to determine whether or not their public servants shall be removed from office should be, and are, liberally construed, and a court is not justified in interfering with the exercise of this right except upon a clear showing that the law has been violated. Brown v. City Council, 103 Cal. App. 113, 284 P. 254. Especially should this salutary rule be applied to charter provisions reserving to, the people of a city control over this purely local and municipal matter. In our opinion, the people of the city of San Diego, through their charter, have fixed the essential requirements for filing a petition for a recall, and a substantial compliance with those requirements appears in each of the petitions before us. It follows that it is the duty of the city council to call an election in accordance with the demand of the petitions.
It is therefore ordered that a peremptory writ of mandate be issued as prayed for in the petition, the petitioners to have their costs.
BARNARD, Presiding Justice.
We concur: MARKS, J.; JENNINGS, J.
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Docket No: Civ. 1164.
Decided: September 19, 1934
Court: District Court of Appeal, Fourth District, California.
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