Lawing v. Faull

Decision Date30 April 1964
Citation227 Cal.App.2d 23,38 Cal.Rptr. 417
CourtCalifornia Court of Appeals Court of Appeals
PartiesBenjamin M. LAWING, Petitioner, v. Harry A. FAULL, as Mayor of the City of Pomona, Richard C. Brownell, Elaine Hopkins, Milton B. Ball and Ronald P. Geiger, all as Councilmen of the City of Pomona, Lawrence B. Thomas, as City Auditor and ex officio City Clerk of the City of Pomona, Respondents. Civ. 28140.

Harry R. Roberts and James H. Piatt, Pomona, for petitioner.

Robert C. Gustaveson, City Atty., and Patrick J. Sampson, Deputy City Atty., for respondents.

Nossaman, Thompson, Waters & Moss, Franklin T. Hamilton, Richard J. Riordan and Joseph A. Carbone, Los Angeles, amicus curiae on behalf of respondents.

BURKE, Presiding Justice.

A petition for writ of mandate was brought by petitioner, a taxpayer and elector of the City of Pomona, to compel the City Clerk to certify the sufficiency of a referendum petition directed to an ordinance of the City Council rezoning a 26-acre parcel in the city, and to compel the City Council to call an election thereon.

Within 30 days after adoption of the ordinance, a referendum petition was filed with the City Clerk, who, in due course, certified that it was signed by 4,913 registered voters of the city. On the date of filing the petition, there were 27,653 registered voters within the city; at the last preceding general municipal election, the total number of registered voters was 26,565. In other words, the petition was signed by more than 10 per cent, but by less than 20 per cent, of the registered voters on either date. The clerk certified that the petition was insufficient because it failed to comply with the signature requirement of section 143 of the city charter. The City Council thereupon refused to call a referendum election. The present proceeding followed. We issued our order to show cause why a writ of mandate should not issue compelling the council to call an election as requested. After argument and consideration, we conclude that the writ should be denied.

Section 143 of the Charter of the City of Pomona (Stats. 1911, part 2, pp. 1951-1952) signed by qualified electors of the city

'If during said thirty days [after adoption of an ordinance] a petition signed by qualified electiors of the city equal in number to at least twenty per cent of the total number of registered voters at the last preceding general municipal election, 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 council to reconsider such ordinance; and if the same be not entirely repealed, the council shall submit the ordinance as is provided in article XXI of this charter, to the vote of the electors of the city, * * *.'

Petitioner contends that the foregoing provision of the charter imposes more onerous restrictions upon the exercise of the right of referendum than those prescribed by the Constitution of the state and must therefore be subordinated to the latter provisions.

By an amendment to the Constitution adopted October 10, 1911, the right of initiative and referendum was reserved to the people of the state both with respect to state and local government legislation. (Art. IV, § 1.) With respect to local governments, the section reads in part as follows:

'The initiative and referendum powers of the people are hereby further reserved to the electors of each county, city and county, city and town of the State to be exercised under such procedure as may be provided by law. Until otherwise provided by law, the legislative body of any such county, city and county, city or town may provide for the manner of exercising the initiative and referendum powers herein reserved to such counties, cities and counties, cities and towns, but shall not require more than 15 percent of the electors thereof to propose any initiative measure nor more than 10 percent of the electors thereof to order the referendum. Nothing contained in this section shall be construed as affecting or limiting the present or future powers of cities or cities and counties having charters adopted under the provisions of Section 8 of Article XI of this Constitution. In the submission to the electors of any measure under this section, all officers shall be guided by the general laws of this State, except as is herein otherwise provided. This section is self-executing, but 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.'

The section was designed to apply to all classes of counties and cities, including so-called general law cities and those whose electors have seen fit to enjoy a greater measure of home rule as to municipal affairs by enacting charters, with the approval of the Legislature, under section 8 of article XI.

With these two types of cities in mind, we return to a reading of the above-quoted portions of section 1 of article IV and note that, unlike the provisions relating to the exercise by the people of the state of initiative and referendum powers, with respect to which the constitutional amendment proposed detailed regulations, it was contemplated that the regulations for the exercise of such powers by the people of counties and cities, would be 'provided by law.' With respect to chartered cities, the last mentioned phrase would inclued the enactment of such regulations by a charter provision or by legislation enacted by the duly constituted legislative body of the city. A charter provision concerning such matters is clothed with all the dignity of a statutory enactment of the State Legislature. (Taylor v. Cole, 201 Cal. 327, 333, 257 P. 40.) However, with respect to cities governed by the general laws, such matters are regulated by statute and in article IV, section 1, it was provided that, until such statutory enactment, the local legislative body might provide for the manner of exercising the powers of initiative and referendum but subject to the limitations that they should not require more than 15 per cent of the electors to propose any initiative measure, nor more than 10 per cent of the electors to order the referendum.

The use of the phrase 'until otherwise provided by law' must be accorded its plain intendment that until (1) the Legislature acted, as to nonchartered cities governed by the general laws in such matters, or (2) as to chartered cities enjoying home rule powers in respect to municipal affairs (art. XI, §§ 6, 8) until the people of such a city had acted by a charter provision, or, (3) as to such a chartered city, until the legislative body thereof had acted by local ordinance, the limitations imposed in the particular sentence relating to 15 per cent and 10 per cent should prevail. Certainly nothing in this particular sentence either requires or infers that such restrictions as to chartered cities enjoying home rule powers (art. XI, §§ 6, 8) should continue beyond the point where it would be 'otherwise provided by law.'

Under sections 6 and 8 of article XI of the Constitution, cities may be empowered in their charters 'to make and enforce all laws and regulations in respect to municipal affairs, subject only to the restrictions and limitations provided in their several charters, * * *.' By the provisions of its charter Pomona in 1911 brought itself within the condition of the 'municipal affairs' sections of article XI. The city has thereby acquired 'the power of 'municipal home rule' with respect to all matters of local or internal concern.' (Lindell Co. v. Board of Permit Appeals, 23 Cal.2d 303, 310, 144 P.2d 4, 8. City of Pasadena v. Paine, 126 Cal.App.2d 93, 98, 271 P.2d 577.) Therefore, with respect to matters that are 'municipal affairs,' the city enjoys autonomous rule and is not subject to general laws concerning such affairs. (Brougher v. Board of Public Works, 205 Cal. 426, 437, 271 P. 487.)

Even prior to the enactment of article IV, section 1, in 1911, provisions in city charters relating to city initiative and referendum regulations were held by the courts to be proper in legislating on municipal affairs and not violative of either state or federal constitutions. (In re Pfahler, 150 Cal. 71, 88 P. 270, 11 L.R.A.,N.S., 1092.)

With this background in mind, it is clear that the language of section 1 of article IV that '[n]othing contained in this 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 this Constitution' must be interpreted as a declaration of intention that such powers, long enjoyed by the electors of many home rule cities, be not deemed to have been curtailed by the constitutional amendment. The section concludes with a statement that it is self-executing but providing 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.' The effect of this last mentioned restriction is to preclude either the State Legislature, the people of a city through a charter amendment, or the legislative body of any city, from withholding or nullifying the initiative and referendum powers reserved by the Constitution. Such limitation, however, may not be extended to include the provisions with respect to the percentage of voters required to propose any initiative measure or to order a referendum, since with respect to such matters the particular language dealing with them expressly contemplates that they may be changed by law ('until otherwise provided by law * * *'). It is conceivable, of course, that a legislative body of a home rule city could, by ordinance, require such a high percentage of voters to sign a petition, for either of such purposes, as to make the...

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