Miller v. Greiner

• Decision Date: 10 February 1964
• Citation: 36 Cal.Rptr. 737,60 Cal.2d 827,389 P.2d 129
• Court: California Supreme Court
• Parties: , 389 P.2d 129 Robert MILLER et al., Petitioners, v. Francis L. GREINER, as City Clerk, etc., et al., respondents; A. P. HAMANN, as City Manager, etc., Real Party in Interest; Virginia C. Shaffer, as a Member, etc., Real Party in Interest; S. F. 21592.

Page 737

36 Cal.Rptr. 737

60 Cal.2d 827, 389 P.2d 129

Robert MILLER et al., Petitioners, v. Francis L. GREINER, as City Clerk, etc., et al., respondents A. P. HAMANN, as City Manager, etc., Real Party in Interest Virginia C. Shaffer, as a Member, etc., Real Party in Interest;

S. F. 21592.

Supreme Court of California, In Bank.

Feb. 10, 1964.

Ruffo & Oneto, John B. Vasconcellos, Jr., and Robert J., williams, San Jose, for petitioners.

Richard K. Karren, Senior Asst. City Atty., for respondents.

John B. Vasconcellos, Jr., San Jose, for real party in interest, City Manager.

Burnett, Burnett, Keough & Cali and John M. Burnett, San Jose, for real party in interest, member of the City Council.

TOBRINER, Justice.

Petitioners, electors and taxpayers of the City of San Jose, seek a writ of mandate to prevent the city clerk of San Jose from holding a special election on April 14, 1964, and from expending city funds for such election.

The sole issue turns upon whether, as a result of the 1963 amendments to the charter of the City of San Jose, the election of the city manager may be held in even-numbered years or whether it must be held in odd-numbered years in conjunction with the general municipal election. For the reasons set forth below we have concluded that the election must be conducted in odd-numbered years in conjunction with the general municipal elections. We begin by setting forth the relevant city charter provisions and the factual background of the present proceeding.

The pertinent sections of the charter of the City of San Jose provide as follows. Section 53 (Appointive Officers): 'There shall be the following appointive officers * * * city manager * * *.'

Section 56 (City Manager Official Head of the City): 'The City Council shall appoint a City Manager, who shall hold office at the pleasure of the City Council, and of the electors of the City of San Jose as hereinafter set forth. The name of the City Manager shall hereafter at the municipal election held on the first Monday of May be placed on the ballot in substantially the following form:

"Shall (name), the City Manager of San Jose, be retained in office for the ensuing two years.

_ _ YES

_ _ NO'

* * *.' ¹

Section 3 (Elective Officers): 'The elective officers of the city shall be seven councilmen and a city auditor.'

Section 9 (General Municipal Election): 'A general municipal election shall be held on the second Tuesday of April of each odd-numbered year, commencing with the year 1965, for the election of elective officers, to fill the elective offices the terms of which will expire in such odd-numbered year, and for such other purposes as the council may prescribe. Any reference to general election in this Charter shall mean a general municipal election.' ²

The city held its last general municipal election in 1962. Pursuant to the charter, as it then read, the city conducted the election in two steps, with a primary on the second Tuesday in April and a run-off election on the second Tuesday in May. On January 13, 1964, the city council, by Resolution No. 25050 called a special election for April 14, 1964, to determine whether the city manager, A. P. Hamann, should be retained in office for the ensuing two years.

Petitioners contend that the election of the city manager pursuant to section 56 must be held in odd-numbered years in conjunction with the general municipal elections, as described in section 9 of the charter. Petitioners allege that the special election in 1964 will necessitate the expenditure of between $30,000 and $40,000 of city funds. Respondent admits the allegations respecting the expenditure of city funds, but asserts that an election in 1964 is required by section 56 of the charter.

Before turning to the issues raised by these contention we dispose of certain procedural matters. The controversy underlying this proceeding presents a proper subject for mandamus. We have frequently entertained petitions in matters concerning municipal elections (e. g., Felt v. Waughop (1924) 193 Cal. 498, 225 P. 862; Gilmore v. Jordan (1934) 1 Cal.2d 347, 35 P.2d 517; Blotter v. Farrell (1954) 42 Cal.2d 804, 270 P.2d 481), and mandamus will issue to compel an officer to conduct an election according to the law. (Code Civ.Proc. § 1085; Partridge v. Devoto (1905) 148 Cal. 167, 82 P. 775; Galindo v. Walter (1908) 8 Cal.App. 234, 96 P. 505.) Because of the imminence of the proposed election petitioners have no speedy or adequate remedy in any other court; this court exercises original jurisdiction. (Code Civ.Proc. § 1085.) Petitioners, as taxpayers and electors, may maintain this action. (See Harnett v. County of Sacramento (1925) 195 Cal. 676, 235 P. 445; Conn v. City Council of the City of Richmond (1911) 17 Cal.App. 705, 121 P. 714.) In light of our disposition on the merits, we need not consider petitioners' contention that Virginia C. Shaffer is not a proper party to these proceedings.

We turn to an analysis of the pertinent charter provisions. The controversy arises primarily as a consequence of the curious amendatory history of sections 9 and 56. In specifying the time for the city manager election, section 56 provides only that it shall be held on the 'first Monday of May' (or as a result of the 1952 amendment to section 9, on the 'second Tuesday in April'). The section fails to specify the year for such election. Prior to the 1963 amendment to section 9, this omission did not give rise to any difficulty because the first election pursuant to section 56, held in 1942, and every election thereafter, coincided with the section 9 general municipal election held in even-numbered years. The 1963 amendment to section 9 provided, however, that the general municipal election was to be conducted in odd-numbered years beginning in 1965. Thus the gravamen of the problem is whether section 56, which remains silent on the year of the city manager election, incorporates the odd-numbered years schedule of the post-1963 section 9, or whether it continues to operate on a timetable of even-numbered years.

Several factors suggest that the design of the charter provides for the election of the city manager in conjunction with the general muncipal election hereafter conducted in odd-numbered years.

We note first that section 56 refers to 'the municipal election (to be held on the second Tuesday in April) ³ * * *.' (Emphasis added.) The phrasing of this provision suggests that the election of the city manager is to be held at the same time as an election occurring independently of the operation of section 56, that is, the general municipal election to be held on the second Tuesday in April. The demonstrative adjective 'the' in the above quoted phrase particularizes the reference to municipal elections and indicates identity with the municipal election previously mentioned in section 9 of the charter, since such election is the only one specifically referred to in the charter and the only election to be held on the second Tuesday in April. (See Stillwell v. State Bar (1946) 29 Cal.2d 119, 123-124, 173 P.2d 313.)

The above-described interpretation of the admittedly ambiguous charter provisions conforms with the over-all design of the charter. The charter establishes a system of unified municipal elections held in alternate years. Thus between 1942 and 1962 the city manager election has been held in conjunction with the general municipal elections. The 1963 amendment of section 9, substituting a single general election for the two-step primary and run-off system, further indicates an intent to minimize the number and thus the cost of elections. ⁴

Moreover, the San Jose voters adopted the 1963 amendment apparently believing that the change to odd-numbered years would enable the city to utilize the county election facilities and thus reduce the cost of elections. The argument submitted to the voters in support of the amendment stated: 'A 'YES' vote will facilitate the conduct of municipal elections. It is more advantageous for the City to arrange for the handling of much of the election preparation by the County than to hire its own personnel and keep separate election records. By moving the municipal election a year away from the State primary elections, when the Registrar of Voters is extremely busy, continuation of this cooperation can be assured.' The holding of an even-year election would destory this advantage. ⁵

The alternative analysis of the charter offered by respondent does not effectively rebut the above conclusions. Respondent first contends that petitioners' interpretation of the charter will permit the current city manager to remain in office an additional year. But this is merely a temporary extension in his term, and any deleterious effects of such extension are ameliorated by the power of the city council, under section 56, to remove the city manager at will. Moreover, the electors indicated their lack of concern for such extension in approving the 1963 amendment to section 9 which temporarily lengthened the terms of city councilmen and the city auditor.

Respondent secondly points to the lack of express reference in the 1963 amendments to the city manager or to the section 56 election procedure. He suggests that this indicates a design to retain the even-year timetable under which section 56 operated prior to 1963.

Respondent finally argues that any ambiguity in the charter must be resolved by ruling against limiting or infringing the rights of the electors to exercise the franchise. (See People v. Elkus (1922) 59 Cal.App. 396, 404, 211 P. 34; Collins v. City and County of San Francisco (1952) 112 Cal.App.2d 719, 729, 247 P.2d 362; Warner v. Kenny (1946) 27 Cal.2d 627, 629, 165 P.2d 889.)

The problem before us compels a choice between two possible interpretations of an ambiguous statutory...