Blotter v. Farrell

• Decision Date: 18 May 1954
• Citation: 42 Cal.2d 804,270 P.2d 481
• Court: California Supreme Court
• Parties: BLOTTER et al. v. FARRELL, Mayor, et al. L. A. 23084.

Page 481

270 P.2d 481

42 Cal.2d 804

BLOTTER et al. v. FARRELL, Mayor, et al.

L. A. 23084.

Supreme Court of California, In Bank.

May 18, 1954.

As Modified on Denial of Rehearing June 16, 1954.

Leonard A. Bock, Palm Springs, for appellants.

Thompson & Colegate, Riverside, Roy W. Colegate, City Atty., and Jerome J. Bunker, Asst. City Atty., Palm Springs, for respondents.

CARTER, Justice.

Plaintiffs, who are citizens of the City of Palm Springs, appeal from a dismissal of their petition for writ of mandate and a judgment on the pleadings in favor of the defendants, Mayor Charles D. Farrell, the City Council of the City of Palm Springs, et al.

During February and March of 1952, plaintiffs, as citizens of the City of Palm Springs, circulated two initiative petitions in said city. These petitions, which called for a special election for the purpose of adopting a proposed ordinance changing the boundary lines of the councilmanic districts, were presented to the city council on or about March 26, 1952, and by it rederred to a committee for study and recommendation. The council failed to act on the petitions, and on or about April 15, 1952, refused to submit the proposed ordinance to a vote of the electors or call an election for that purpose. Thereafter the plaintiffs commenced this proceeding to obtain a writ of mandate compelling the mayor and City council of the City of Palm Springs (hereinafter referred to as the defendants) to submit the proposed ordinance to the vote of the city electors.

The record indicates that the City of Palm Springs, a city of the sixth class, was incorporated in April, 1938. That as a part of the petition for incorporation, and pursuant to section 852d of the Municipal Corporations Act (now covered by sections 34870 et seq. of the Government Code), the city was laid out in seven councilmanic districts numbered one through seven. In their inception, these original districts each contained as nearly as possible the same voting strength.

During the years following the city's incorporation, some of the councilmanic districts experienced a large increase in population while the population of other districts increased very little. As a result of these population changes, the voting strength of the various councilmanic districts became seriously disproportionate. The extent of this inequality may be illustrated by the fact that in 1951 over 5,000 of the city's inhabitants resided in the first and second districts while the combined population of the fourth and seventh districts totaled less than 600 persons. This unequal distribution of population and voting strength among the various councilmanic districts (as of October, 1951) gave the 1,046 registered voters of the five smallest districts the power to elect five councilmen while the 1,978 registered voters of the two largest districts could only elect two councilmen.

In an effort to bring about a redistricting and to equalize the population of the various councilmanic districts, plaintiffs circulated the aforementioned initiative petitions, which were eventually signed by more than 16% of the city's registered voters. The defendants refused to act on the petitions and took the position that the city council was without authority to adopt an initiative ordinance for redistricting. Following this refusal to submit the proposed ordinance to a vote of the electors or to call an election for that purpose, plaintiffs commenced this proceeding to compel the defendants to act. Both plaintiffs and defendants moved for a judgment on the pleadings and after the oral arguments on said motions the trial court determined that the petition for writ of mandate failed to state facts sufficient to constitute a cause of action. The petition was dismissed and a judgment on the pleadings rendered in favor of the defendants.

Defendants' argument that he initiative petition can only be considered as one containing the signatures of not less than 10% more of the voters so as to come within section 1712 ¹ of the Elections Code rather than section 1711, ² is without merit. The argument of the defendants is based upon two separate grounds: First that the petition for writ of mandate only covered the original initiative petition and secondly that plaintiffs had no authority to file a supplemental initiative petition.

In support of their argument that the petition for writ of mandate only covered the original initiative petition, defendants pointed out that plaintiffs' original initiative petition was certified by the clerk on March 11, 1952, to contain the signatures of 11% of the voters; that the supplemental initiative petition, bringing the number of signers up to more than 16% of the registered voters was not certified until March 29, 1952; and that since Paragraph XV of the petition for writ of mandate stated that the initiative petitions were submitted by the clerk to the council 'on or about March 26, 1952' it could only refer to the original initiative petition. It is thus argued that since the action of the city council complained of was the action taken on the 26th of March, only the original initiative petition was at issue and therefore section 1712 of the Elections Code rather than section 1711 should be applicable.

Defendants' reasoning fails to take into consideration paragraph XVI of the petition for writ of mandate which provided in part that 'although formal demand was, on the 15th day of April 1952 made on said Mayor and Council, the said Mayor and Council did fail, neglect and refuse to consider said proposed ordinance and petition and have refused to submit the same to the vote of the electors. * * *' Thus it appears that the petition for writ of mandate complained not only of the inaction at the council meeting of March 26 but also of the inaction after the demand of April 15, 1952, and therefore the demand involved both the original and the supplemental initiative petitions.

Defendants also argue that the supplemental initiative petition was unauthorized by the Elections Code and therefore section 1711 of the Elections Code (regarding initiative petitions which are signed by 15% or more of the registered voters) is not applicable. This argument is based upon the fact that the original initiative petition containing the signature of 11% of the voters was sufficient for the application of section 1712 and that therefore under section 1709 of the Elections Code a supplemental petition was not authorized. Defendants cite no authority upon which to base such a contention but merely refer us to the code section. Section 1709 provides that 'if the clerk's certificate shows the petition to be insufficient, a supplemental petition, in form a duplicate of the original petition, bearing additional signatures, may be filed within ten days of the date of the certificate of insufficiency.' This section permits a supplemental initiative petition when the original one is insufficient. The wording is permissive and does not appear to prohibit supplemental initiative petitions in other cases. As stated by this court in Ley v. Dominguez, 212 Cal. 587, 593, 299 P. 713, 715, 'It is well settled that the power of initiative and referendum, as exercised in this state, is the exercise by the people of a power reserved to them, and not the exercise of a right granted to them. * * * (Citations.) For that reason, and in order to protect the people of this state in the exercise of this reserved legislative power, statutory or charter provisions dealing with the referendum should be afforded the same liberal construction afforded election statutes generally.' See also, Laam v. McLaren, 28 Cal.App. 632, 153 P. 985.

In view of the permissive wording of section 1709 and the rule of liberal construction, which is applicable to statutes dealing with the initiative power, it would appear that plaintiffs were not prohibited from filding a supplemental initiative petition in the instant case. The net result was a legally sufficient initiative petition containing the signatures of more than 16% of the registered voters of the City of Palm Springs.

On appeal plaintiffs contend that the power of the electors of the city to district includes, by implication, the power to amend or change those districts; that an ordinance providing for a redistricting is available by way of initiative; and that the city council was under a duty to either pass the proposed ordinance or submit it to the voters at a special election.

In regard to the power to redistrict, plaintiffs allege that it is based upon sections 34871, 34876, 35322, and 35323 of the Government Code. Section 34871 of the Government Code provides that 'At any municipal election, or special election held for that purpose, the legislative body may submit to the electors an ordinance providing for the election of members of the legislative body by districts.' Under the provisions of this section a city of the sixth class which has been electing the members of its legislative body from the city at large is authorized to submit to the electors an ordinance under which such members would be elected by districts. Section 34876 ³ provides that where a city of the sixth class incorporates, the petition for incorporation may provide for the election of members of the legislative body by districts. By the enactment of section 35322 ⁴ the Legislature gave to cities of the sixth class authority to alter by ordinance the boundaries of words or to create additional wards where new territory is annexed to said city. This is followed by section 35323 which provides that 'In altering the boundaries of wards, or creating new wards, each ward shall contain, as nearly as possible, an equal number of inhabitants eligible to citizenship.'

In substance the foregoing sections set forth the authority whereby a city of the sixth class may be divided into councilmanic districts and whereby the districts may be altered or new districts...