Miller v. Greiner

• Court: United States State Supreme Court (California)
• Writing for the Court: TOBRINER; GIBSON
• Citation: 36 Cal.Rptr. 737,60 Cal.2d 827,389 P.2d 129
• 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.
• Decision Date: 10 February 1964

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.

[60 Cal.2d 828] 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.

Page 738

[389 P.2d 130] 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:

[60 Cal.2d 829] "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

Page 739

[389 P.2d 131] April 14, 1964, to [60 Cal.2d 830] 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...