HUNT v. MAYOR AND COUNCIL OF CITY OF RIVERSIDE (1947)

In 1907 the City of Riverside adopted a charter (Stats.1907 p. 1277) containing certain provisions for the initiative and referendum. In 1929 (Stats.1929, p. 2102) this charter, in reference to the initiative and referendum provisions, was reenacted under authority of section 8, article XI of the Constitution. The charter was later amended (Stats.1935, p. 2307). On May 13, 1947, the city council duly adopted ordinance number 1260 entitled ‘An Ordinance * * * imposing a license tax of one per cent on gross receipts for the privilege of selling tangible personal property at retail.’ It was approved by the mayor on May 23, 1947. It provided for permits to be issued to retailers, for the collection and payment of such tax, and for penalty for its violation. The ordinance was to become effective on July 1, 1947. It was patterned, in the main, after the California Retail Sales Tax Act of 1933 (Stats.1933, p. 2599). On May 26, 1947, petitioner filed a referendum petition, in different sections, to which petition each signer added to his signature his place of residence. A proper verification of the signatures was attached. On June 6, 1947, the city clerk found that the petition contained an insufficient number of signatures. On June 18, 1947, an amended petition, in the same form, was filed. The city clerk then, on June 23, 1947, certified that the petition was signed by the requisite number of qualified and registered electors, to wit, 904. The entire vote for all candidates for mayor at the last preceding election was 8874.

The mayor and city council refused to repeal said ordinance and to submit the same to the vote of the electors of the city, which refusal was based mainly upon the advice and opinion of the city attorney, which opinion is set forth in the answer, and is to the effect that the referendum provisions of the city charter were not applicable to an ordinance creating a privilege tax levied for the purpose of raising revenue to meet the usual, common, ordinary expenses of the city. In support of a demurrer to the petition claiming that the facts stated therein do not entitle petitioners to relief, respondents also contended that the petition for referendum was insufficient for reasons hereinafter discussed.

Section 1, Article IV of the Constitution of California has specifically exempted from the powers of referendum reserved to the people of the state, acts calling elections, acts providing for levies and appropriation for the usual current expenses of the state, and urgency measures. The final clause of that section reserves the power of referendum to the electors of cities as well as the state, to be exercised under such procedure as may be provided by law. It then provides that nothing contained in that section shall be construed as affecting or limiting the present or future powers of cities having charters adopted under the provisions of section 8 of article XI of the Constitution. The section is self-executing and provides that 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 is now argued that the referendum provisions of the State Constitution, and all of the exceptions therein noted, are read into and became a part of the charter, with the same effect as though they had been expressly incorporated therein, citing Brown v. Boyd, 33 Cal.App.2d 416, 422, 91 P.2d 926; that since it has been held that under the State Constitution the Retail Sales Tax Act of 1933 was not subject to referendum (citing Roth Drug, Inc. v. Johnson, 13 Cal.App.2d 720, 57 P.2d 1022), a similar sales tax act adopted by the city is likewise not subject to referendum, particularly where the tax is levied for the usual and ordinary expenses of city government.

It has been held that where a city charter does not ‘provide for the exercise of the constitutional power reserved to the electors by way of a referendum’ (Brown v. Boyd, supra, 33 Cal.App.2d at page 419, 91 P.2d at page 929) the constitutional reservation is read into and becomes a part of the charter with the same effect as though it had been expressly incorporated therein. However, we are convinced that since the constitution has reserved the power of referendum to the electors of the city and the city has adopted a charter under it and has therein definitely set forth ‘the manner of exercising the initiative and referendum powers' reserved to such cities under the Constitution (Art. IV, sec. 1) and the city has enacted legislation ‘to facilitate its operation’ and has provided therein that certain legislative acts or ordinances of the city council shall not be subject to referendum and such exceptions come within the exceptions set forth in the State Constitution on that subject, then it must be assumed that the power of referendum is reserved to the electors of that city as to any legislative act or ordinance not included within the exceptions set forth in the charter. In other words, under the circumstances here related, we must look to the provisions of the city charter to determine whether the ordinance levying the sales tax, even for the claimed purpose of ‘usual current expenses' of the city, was included within its provisions under a proviso exempting or excepting certain ordinances from the referendum power reserved in the people of that city.

This conclusion is fortified by the case of Brown v. Boyd, supra (hearing denied by the Supreme Court), in which cases Hopping v. Council of City of Richmond, 170 Cal. 605, 150 P. 977, and Long v. Portland, 53 Or. 92, 98 P. 149, 1111, are adopted and cited as authority for the statement:

‘The declaration of the Constitution that its provisions do not affect or limit the referendum power reserved to the people of any city by its charter does not limit the constitutional reservation, nor enlarge those reserved by such charter. The two reservations are thereby made independent of each other. The constitutional reservation goes to the full extent expressed by its language. If the charter differs from the Constitution in any respect, it does not thereby diminish the power reserved by the Constitution. On the other hand, if the powers reserved by the charter exceed those reserved in the Constitution, the effect of the charter would be to give to the people the additional powers there described.’

It must follow then that since the legislature would have no authority to limit or restrict the powers of referendum reserved to the people, the city, by the terms of its charter, could not abridge, limit nor restrict the powers thus reserved. Hill v. Board of Supervisors, 176 Cal. 84, 86, 167 P. 514. Charters are subject to the limitations of the Constitution. Voorhees v. Morse, 1 Cal.2d 179, 189, 34 P.2d 153. The inference is then that if the city charter does not create all of the exceptions permitted by the Constitution but designates certain exceptions therein contained, and the ordinance in question is not within those designated exceptions, the ‘effect would be to give to the people the additional power’ (of referendum) as to that described ordinance.

The right of referendum in regard to all legislative matters is reserved to the people by the Constitution and the charter, and it still exists unless expressly limited as to any particular legislative act. Hopping v. Council of City of Richmond, supra, 170 Cal. at page 610, 150 P. 977; Spencer v. City of Alhambra, 44 Cal.App.2d 75, 111 P.2d 910. The courts cannot create an exception. It must be clearly indicated that such an exception was intended in the charter. Hopping v. Council of City of Richmond, supra, 170 Cal. at page 617, 150 P. 977.

We will therefore examine the provisions of the charter of the City of Riverside in this respect under the rules thus stated. Sec. 233, p. 71 thereof relates to the referendum provisions of the charter. It provides generally:

‘* * * no ordinance passed by the council (except when otherwise required by the general laws of the state or by the provisions of this charter, respecting street improvements, and except an ordinance for the immediate preservation of the public peace, health or safety, which contains a statement of its urgency * * *) and no action made subject to the referendum by this charter shall go into effect before thirty days from the time of its approval by the mayor * * *. And if during such thirty days, a petition signed by electors of the city * * * be presented * * * the same shall * * * be suspended from going into operation. * * *’

We find nothing contained within the provisions of that section that would except an ordinance levying a sales tax in the City of Riverside (under ordinance number 1260) from the reserved power of referendum by the people of that city. Article XV of the charter provides: ‘Revenue and Taxation.’ Section 202: ‘All taxes, licenses, fines, penalties and all moneys received from any source shall constitute the revenue of the city and shall be collected and paid into the city treasury.’ Section 203 provides the time when department heads must submit estimates of their contemplated expenditures for the year. Section 204 provides for an estimate to be furnished the city council showing probable income and revenue collected from ‘fines, licenses and other sources of revenue, exclusive of taxes upon property, and what amount will probably be required to be levied and raised by taxation in order to meet the necessities of each specific fund for such fiscal year.’ Section 205 requires the council to ‘fix by ordinance the amount of money necessary to be raised by taxation upon the taxable property of the city, as revenue to carry on the various departments of such city * * * not to exceed the limit fixed by the charter. * * *’ Section 207 makes it the duty of the mayor and council to provide by ordinance a system for the ‘assessment, levy and collection of all city taxes and for the sale of property for delinquent taxes * * *.’ It also provides that all taxes assessed shall constitute liens on the property assessed. A system of collection of ‘the city taxes' by the county tax collector is provided for, if adopted, and ‘the taxes so levied and collected shall be paid to the city treasurer.’ Section 211 then provides: ‘Ordinances providing for the levying of the taxes mentioned in this article shall not be subject to the provisions of the referendum referred to in section 233 of article XXI.’ That paragraph provides further that the council shall not have power to levy a general tax greater than $1.35 on each $100 of the assessed valuation of all property within said city. This limit is exclusive of all taxes for the payment of principal and interest on the bonded indebtedness of the city, all district taxes, special taxes, special assessments and all taxes for library or school purposes. It also provides that this limit may be changed at any time by an ordinance adopted by a majority vote of all of the electors voting on such question.

In support of their action in refusing to submit the ordinance to the electorate, respondents rely principally upon the words used in section 202, namely, that ‘All taxes, licenses,’ etc., ‘shall constitute the revenue of the city,’ and argue that since the use of the words ‘All taxes' in that section must be all inclusive and include all forms of taxes as well as sales taxes, the provision in section 211 that ‘Ordinance providing for the levying of the taxes mentioned in this article shall not be subject to the provisions of the referendum’ would except such an ordinance as the one here in question from the provisions of the referendum.

We believe this to be a strained construction of Article XV when read in its entirety. Section 202 is but one paragraph in that article apparently designed for the specific purpose of defining what constitutes the revenue of the city. If respondents' contention is tenable, and the construction for which they argue could be placed on these two sections, then any ordinance of the city council which created or fixed any tax, whether for a new city hall, a new city jail, or other such public improvement, would be excepted from the referendum provisions of the charter. Such an interpretation would not be tenable. Hill v. Board of Supervisors, supra; Hopping v. Council of City of Richmond, supra.

Sales taxes are not mentioned in Article XV of the charter. It is apparent that the framers of the city charter did not have in mind at the time the provisions of that article were written that it would or did include a sales tax ordinance, nor did they have in mind excepting from the referendum power of the people any kind of a tax ordinance that might be thought of in the future, including a sales tax. Practically the whole of article XV of the charter is devoted to the property tax and that property tax is referred to throughout the article. It therefore seems consistent to construe the phrase ‘the taxes mentioned in this article,’ appearing in section 211, as referring to the same taxes the framers of the charter apparently had in mind and were referring to in the other sections of Article XV, that is, the property tax on real and personal property. A sales tax is not a tax upon property but has been declared to be an ‘excise’ or ‘privilege’ tax, as distinguished from a personal property tax. Roth Drug, Inc. v. Johnson, supra.

Respondents also argue that there is one other provision of the city charter (sec. 10, art. III) indicating that no tax ordinances are subject to a referendum. It reads in part: ‘* * * No * * * ordinance, except initiative, referendum, recall, election or tax ordinances, shall have any effect without the approval of the mayor.’ We are unable logically to conclude that this provision indicates that the framers of the city charter intended thereby that all tax ordinances were exempt from the provisions of the referendum. Charters and statutes should be liberally construed to give the people the broadest powers of the referendum. Ley v. Dominguez, 212 Cal. 587, 299 P. 713; McClure v. Nye, 22 Cal.App. 248, 133 P. 1145; Dwyer v. City Council, 200 Cal. 505, 253 P. 932; Whittemore v. Seydel, 74 Cal.App.2d 109, 115, 168 P.2d 212; Dye v. Council of the City of Compton, 80 Cal.App.2d 486, 182 P.2d 623.

The charter as a whole impels the conclusion that it was intended that legislation on every municipal subject should be subject to referendum unless expressly or by clear and necessary implication it is excluded. It is true that certain laws are usually exempted from the operation of the referendum for definite reasons and these exemptions usually include ordinances for the levying of taxes for the usual and ordinary purposes of government. 28 American Jurispudence pp. 156, 157, secs. 8, 9 and 10. This exemption, however, is one to be contained in the charter and not left to the discretion of the legislative body. The charter clearly recognizes all usual limitations on the power of referendum and provides in the last paragraph of section 211 for a maximum tax levy of $1.35 on the assessed valuation of property within the city which is the usual revenue of the city as determined under sections 204 and 205 of the charter, which sections provide for the probable wants of all the departments of the municipal government and, apparently, is the tax ‘mentioned in this article’ which is free from referendum provisions. That paragraph specifically provides that the city council shall have no power to levy a ‘general tax’ greater than $1.35 per hundred on the assessed valuation of all property within the city, exclusive of special taxes, etc., for the purposes described, unless authorized by a vote of the people.

We therefore must conclude that, under proper petition and proceedings, the ordinance here in question is subject to the referendum provisions of the city charter.

In respect to the petition, it is first contended that each of the signers of the referendum petition failed to ‘affix thereto the date of his signing’ as required by sections 45, 1701 and 1773 of the Elections Code; that it does not appear from the petition between what dates it was circulated, and that accordingly the clerk could not determine that the signers were registered and qualified voters on the dates when they signed the petition, and it could not be determined therefrom whether or not the petition was circulated and signed before the ordinance was adopted by the council and approved by the mayor. It is also argued that the petition was premature and that there was no ordinance subject to referendum prior to its approval by the mayor or passage over his veto, citing Whitmore v. Carr, 2 Cal.App.2d 590, 38 P.2d 802; Thompson v. Kerr, 16 Cal.2d 130, 104 P.2d 1021; Gray v. Kenny, 67 Cal.App.2d 281, 153 P.2d 961; Chester v. Hall, 55 Cal.App. 611, 204 P. 237; Secs. 10 and 233 Riverside Charter.

It does not appear from the petition that the dates of signing were affixed to the petition by the signers opposite their signatures.

Sections 45, 1701 and 1773 of the Elections Code require that each signer add to his signature the date of his signing. Section 1777 of the Elections Code provides, however, that chapter three, division IV, in which chapter sections 1701 and 1773, supra, are found, does not apply to cities having a charter adopted and ratified under the provisions of section 8, article XI of the Constitution. Section 45, supra, is not contained in that chapter.

The question, therefore, resolves itself into this: Is section 45 of the Elections Code (based on former Political Code section 1083a), requiring that each signer of a referendum petition shall, at the time of signing the petition, himself, affix thereto the date of his signing, applicable to a municipality having a charter duly adopted under article XI section 8 of the Constitution wherein provision has been made stting forth the manner and procedure for exercising the power of initiative and referendum? Provision was made in the charter of the City of Riverside for the initiative and referendum of legislative acts of that city. Under the authority of article IV section 1 of the Constitution that city has provided, in detail, in its charter, the ‘manner’ and ‘procedure’ by which this reserve power is ‘to be exercised.’ The charter does not require that the signer ‘affix the date of his signing’ but only requires that ‘each signer shall add to his signature his place of residence, giving street and number.’ The Constitution, under which this charter was adopted, made no provision for affixing the date of signing by the elector, but only required that ‘each signer (qualified elector) shall add to his signature his place of residence, giving the street and number if such exist.’

In Ley v. Dominguez [212 Cal. 587, 299 P. 718], supra, a similar question arose under the city charter of Los Angeles in reference to the application of section 1083a of the Political Code (now carried into section 45 of the Elections Code). That section then required that, ‘Wherever, by the constitution or laws of this state,’ any referendum petition is ‘required to be signed by qualified electors, only an elector who is a registered qualified elector at the time he signs such petition * * * shall be entitled to sign’ any such petition, and that such signer ‘shall at the time of so signing such petition * * * affix thereto the date of such signing.’ It was there held that the added qualification, namely, that he shall be ‘a registered qualified elector’ at the time of signing applied ‘only to state legislation and has no application in and of itself to municipalities.’ As applied to state legislation and general laws the additional requirement not specified in the Constitution (that the signer shall affix the date of his signing) has been upheld. Uhl v. Collins, 217 Cal. 1, 17 P.2d 99, 85 A.L.R. 1370; Thompson v. Kerr, supra; Chambers v. Glenn-Colusa Irrigation District, 57 Cal.App. 155, 206 P. 773.

Section 45 of the Elections Code was subsequently amended by adding the provision that ‘each signer of any municipal * * * referendum * * * petition * * * shall * * * affix thereto the date of his signing.’ This provision may be applicable to municipalities not having charters or not having charter referendum provisions, (Brown v. Boyd, supra), and to municipalities whose charters adopt the general laws of the state as to the ‘manner’ or ‘procedure’ for exercising the power of initiative or referendum. Dye v. Council of the City of Compton, supra. We are convinced, however, that the holding in the Ley v. Dominguez case still prevails in such cities as have provided in their charters for the ‘manner’ and ‘procedure’ to be employed under the initiative and referendum provisions of their charters, when the procedure adopted conforms to and is consistent with the provisions of the State Constitution. 18 Cal. Jur. 950, sec. 233.

Municipal charters, duly ratified by the legislature, clothe such charter provisions with all the dignity of an ordinary statutory enactment and entitle them to all the validity and presumptions which attend and protect other statutory enactments. Taylor v. Cole, 201 Cal. 327, 257 P. 40.

In Whitmore v. Carr, supra, 2 Cal.App.2d at page 592, 38 P.2d at page 803, it is said:

‘This power of referendum, as well as that of the initiative, is reserved by section 1 of article 4 of the Constitution to the people of each city and town in the state, with the right in cities acting under a charter to provide for the manner in which the power may be exercised.’

Where a constitutional provision is self-executing, as here, legislative enactment for the purpose of facilitating and safeguarding its operation should be liberally construed in order that the constitutional right may not be defeated. See Chester v. Hall, 55 Cal.App. 611, 204 P. 237, where it was held that a petition for county charter election was not void where it was sufficient to enable the county clerk to satisfy himself from the registration records that the required number of petitioners were qualified electors at the time of signing, even though some did not affix the date of signing. There is a presumption, where initiative petitions have been signed and verified as provided by law, that those signing the petitions were legal voters and entitled to sign the same and that petitions which have been circulated, signed, and filed are valid, and the burden of proof to show their invalidity rests upon those protesting against them. 28 Am.Jur. 174, sec. 41.

Many of the cases relied on by respondent are in the form of mandamus to compel the city or county clerk, who has refused to certify to the sufficiency of the petition, to do so. In the instant case the clerk has made the examination required by the charter, that is, ‘examined and from the great register and certificate of registration, ascertained whether or not said petition is signed by the requisite number of qualified and registered electors,’ has attached his certificate indicating that he found the petition ‘to be sufficient,’ and has submitted the same to the council. There was no provision in the charter that the clerk certify that there was affixed to each signature on the petition the date of the signing. The clerk performed his duty. Under the charter (sec. 233) if a petition signed by electors of the city, sufficient in number, 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 they ‘shall submit it to a vote of the electors.’ The city clerk is not a party to this mandamus proceeding. He is not claiming that the petition is insufficient. On the other hand, he has found it to be sufficient. It is the city council which is claiming it to be insufficient. It appears from the opinion of the City Attorney that the city council refused to call the election for the sole reason set forth in that opinion, which is the reason disposed of in the first question herein discussed. The question of the sufficiency of the petition as to the particulars here discussed was not raised nor mentioned until this proceeding was commenced. In State v. Superior Court, 70 Wash. 352, 126 P. 920 at page 921, a similar proposition was considered in a proceeding in certiorari. It was there stated:

‘Where it is thus manifest that the sufficiency of the petition was not a question considered by the commissioners at the time it was certified to them, but that its consideration was postponed upon other grounds, it would seem that that question should be foreclosed in a proceeding of this character.’

Good v. Common Council, 5 Cal.App. 265, 90 P. 44, was an action in mandamus directed to the city council, commanding defendants to order a recall election. A petition for recall was filed against one of its members and certified by the city clerk. The petition was found by him ‘to be sufficient.’ The council refused to act on that petition for several assigned reasons respecting its sufficiency among which was the claim that the declaration of the sufficiency of the petition rested in the discretion of the common council and could not be controlled by the mandate of the courts. It was there stated that the certificate of the city clerk was that he compared the names on the petition with the great register and found the petition to be sufficient; that this was the result of his examination; that this implied ‘that it fulfilled the requirements of the law’; that there was nothing to be done by the common council in this connection; that there was no discretion vested in the common council in connection with the calling of the election under such circumstances; that that body's functions were purely ministerial and that the ‘duty of determining whether or not the petition contains the proper number of signatures and the comparing of them with the great register devolved upon the city clerk. He is the person given authority to hear and determine the question of the sufficiency of the petition, and no appeal therefrom is provided and none apparently intended to be given. This is evident from a provision of the act requiring the return of the petition by the city clerk to the petitioners if found insufficient, and which, in effect, negatives petitioner's right of appeal * * *. But conceding that the council had supervisory power and refused to order an election in the face of a sufficient petition, mandamus will lie to compel it to act.’ (Citing cases.) See, also, Boggs v. Jordan, 204 Cal. 207, 267 P. 696; 28 Am.Jur. p. 173 sec. 37; State ex rel. Wagner v. Summers, 33 S.D. 40, 144 N.W. 730, 50 L.R.A.,N.S., 206, 216, Ann.Cas. 1916B, 86.

We therefore must conclude, in respect to the claimed insufficiency of the petition, that the city council was precluded from raising that question, for the first time, in this mandamus proceeding.

The next question meriting consideration is the contention that the referendum petition was not filed within the thirty-day period prescribed in the charter. The charter provides (Sec. 233) that ‘no action made subject to the referendum by this charter shall go into effect before thirty days from the time of its approval by the mayor * * * and if during said thirty days, a petition signed by the electors * * * protesting * * * be presented to the council * * * the council shall submit the ordinance proposed, to the vote of the electors * * *.’

Section 10 of the charter provides: ‘All resolutions and ordinances after passage by the council must be submitted to the mayor who shall, within ten days after he has received the same, endorse his approval or disapproval thereon.’ It likewise provides: ‘No * * * ordinance, except initiative, referendum, recall, election or tax ordinances, shall have any effect without the approval of the mayor.’

The original referendum petition was filed on May 26, 1947. The amended petition was filed on June 18, 1947. The ordinance was passed by the city council on May 13, 1947, and approved by the mayor on May 23, 1947. Under the provisions of section 233 of the charter the original petition, as well as the amended petition, was filed within the thirty days after the approval of the ordinance by the mayor.

In Solomon v. Alexander, 161 Cal. 23, 118 P. 217, 218, it was held that under the provisions of the city charter of Los Angeles, which provided that no ordinance ‘shall go into effect before 30 days' after its passage and approval by the mayor, the thirty-day period within which the referendum petition must be filed commences to run from the time of the approval of the ordinance by the mayor. See also, 18 Cal.Jur. 952, sec. 235.

Respondents claim that since it was a tax ordinance, under section 10 of the charter it would become effective without the approval of the mayor and that the petition, as amended, would not have been filed within thirty days from the passage by the council; that the thirty days ran from that time since the mayor was not required to sign such an ordinance. In this connection it is argued that the petition may have contained signatures of voters who signed prior to the approval of the ordinance by the mayor and therefore such signatures should not be counted. The argument to this contention is covered by our conclusion heretofore reached in reference to the effect of the certificate of the city clerk attached to the petition, as amended, certifying that he had ‘examined the petition as required by law and found it to contain 904 signatures of qualified and registered electors and * * * to be sufficient.’ There is no showing that the petition contained signatures of voters not properly qualified to sign it.

After the city clerk certified, on June 9, 1947, that the original petition was insufficient, an amended or supplemental petition was filed on June 18, 1947, and the above-mentioned certificate was, on June 23, 1947, attached to it and it was submitted by him to the city council.

It is now argued that the city charter made no provision for the filing of a supplemental petition pertaining to the referendum and therefore no sufficient petition was in fact presented to the city council. If a sufficient referendum petition was not filed before the ordinance became effective this contention must be sustained. Rushton v. Lelander, 15 Cal.App. 448, 115 P. 56; Dalton v. Lelande, 22 Cal.App. 481, 135 P. 54; Mann v. Brison, 120 Cal.App. 450, 7 P.2d 1110, 9 P.2d 257. This is particularly true because the city of Riverside reenacted the provisions of its charter in this respect in the year 1929 and the rule of construction involving legislative intent in adopting statutes previously construed comes into effect. Dalton v. Lelande, supra, decided in 1913. Under section 232 of the charter pertaining to the initiative petition, it is specifically provided that ‘if, by the clerk's certificate, the petition is shown to be insufficient, it may be amended within ten days from the date of said certificate * * * If, the petition shall be found to be sufficient the clerk shall submit the same to the council without delay.’

Section 233 of the same article of the charter pertains to the referendum petition. It makes no specific provision therein as it did in reference to the filing of an amended initiative petition. It does contain the provision that ‘Said petition shall be in all respects in accordance with the provisions of the first section of this article (The Initiative) and shall be examined and certified by the clerk in all respects as therein provided.’ These provisions of the charter are practically identical with the provisions of the Los Angeles charter construed in Rushton v. Lelander, supra, and the ruling in that case must prevail, here. It was there held that the right to file an amended petition and the procedure to be followed in reference to the initiative petition did not apply to the referendum petition after the thirty-day limit and after the ordinance would have otherwise become effective.

The only escape we see for the petitioners is the claim that the entire petition, both original and as amended, was filed within thirty days of the time the ordinance would have become effective. The petition, as amended, was filed on June 18, 1947. According to the clerk's certificate it, at that time, contained a sufficient number of signatures. And since we have concluded that this ordinance was subject to referendum, section 233 of the charter provides that under such circumstances it shall go into effect thirty days from the time of its approval by by the mayor. It was approved by the mayor on May 23, 1947, and the petition, as amended, was filed well within the thirty-day limit therein provided. Under these circumstances the case of Dalton v. Lelande, supra, and other cases cited, can be distinguished.

Section 10 of the charter does not provide that such a tax ordinance, as the one here being considered, takes effect upon passage by the city council without the approval of the mayor. Whether a tax ordinance which is not made subject to the referendum might have such effect is not before us. In the face of the positive declaration in the referendum provisions of the charter that any ordinance made subject to the referendum by the charter shall not go into effect before thirty days from the time of its approval by the mayor, we cannot hold that section 10 of the charter modifies this positive declaration set forth in section 233. We must therefore conclude that a sufficient petition for referendum was filed within the time prescribed by the charter.

Therefore, a writ of mandate should issue to respondents commanding them forthwith to reconsider said ordinance and either repeal the same or submit said ordinance to the vote of the electors of the city as provided in section 233, article XXI of the charter of the City of Riverside.

Writ granted.

GRIFFIN, Justice.

BARNARD, P.J., and MARKS, J., concur.