Perham v. City of Los Altos
| Decision Date | 05 April 1961 |
| Citation | 190 Cal.App.2d 808,12 Cal.Rptr. 382 |
| Parties | George S. PERHAM, Jr., Arthur F. Perham, Jane Shoemaker and Frances Bell Perham, Petitioners and Respondents, v. CITY OF LOS ALTOS, a municipal corporation, Irving L. Atkinson, Roy L. Dunnett, Donald B. Greenwood, Frank Williamson and Robert A. Prior, members of the City Council of said City of Los Altos, Neary Rock Quarry, Inc., a corporation, Neary Enterprises, a partnership, George Neary, Ethyl Neary, real parties in interest, Respondents and Appellants. Civ. 19372. |
| Court | California Court of Appeals Court of Appeals |
Anthony A. Lagorio, City Atty., Los Altos, for appellants.
Pillsbury, Madison & Sutro, San Francisco, Eugene M. Prince, Harlan M. Richter, San Francisco, of counsel, for respondents.
This is an appeal by the City of Los Altos from a judgment declaring void certain annexation proceedings conducted under the Annexation of Uninhabited Territory Act of 1939 (Gov.Code, §§ 35300-35326).
One of the bases of the judgment was a finding that on the day the petition for annexation was presented and filed with the city (November 17, 1959) the territory sought to be annexed included more than twelve registered voters as shown in the records of the county registrar of voters. (The evidence showed that they numbered 14.) The court concluded that because there were more than twelve registered voters at the time of such filing, this was not uninhabited territory and that all acts done in this proceeding were void for want of jurisdiction.
The city challenges this finding and this conclusion upon the ground that though there were fourteen persons registered on the critical day, eight had registered less than 54 days prior thereto, leaving only six who could be considered 'registered voters' on that day. It argues that a person cannot vote at an election held in the area of his registration within 53 days after registering. It invokes an unfortunate dictum uttered by this member of this court in People ex rel. Pennington v. City of Richmond, 141 Cal.App.2d 107, 296 P.2d 351. We there held that 'the statute requires one to be registered as of the place where he resides on the crucial day, the day of the filing of the petition' and then said '(Probably, also, he should be entitled to vote if an election were held in that area on that date).' 141 Cal.App.2d at page 116, 296 P.2d at page 357. That statement is not correct. It is a question of residence and registration, not a question of voting, on that day.
The applicable statute, known as the 'Annexation Of Uninhabited Territory Act Of 1939,' consists of §§ 35300-35326 of the Government Code. Sections 35000-35006 are also applicable (§ 35301). Section 35302 declares that contiguous 'uninhabited' territory may be annexed to a city pursuant to the provisions of this act.
'Uninhabited territory' is defined in these words: '* * * territory shall be deemed uninhabited if less than twelve registered voters reside within it at the time of the filing of the petition for annexation or the institution of proceedings * * * of the city legislative body.' Section 35303. The obvious purpose of this reference to the voter registration records is to furnish a convenient and ready means of ascertaining the number of legal residents of the territory. Registration is based upon the affidavit of the voter (Elec.Code, § 120) which must show the affiant's 'place of residence and post-office address with sufficient particularity to identify it and to determine affiant's voting precinct.' Section 220, subd. (c); see also § 230, subd. 3. The rules for determining 'residence' for the purpose of registration and voting show that it means legal residence or domicile. Sections 5650-5661, especially § 5652.
Residence at a given place for a specified period of time prior to registration is not required. It is required that the affiant state: 'I will be at least 21 years of age at the time of the next succeeding election, a citizen of the United States 90 days prior thereto, and a resident of the State one year, of the county 90 days, and of the precinct 54 days next preceding such election, and will be an elector of this county at the next succeeding election.' Section 230. (Emphasis added.) These residential requirements (1 year, 90 days, 54 days) are based upon the qualifications a person must have to vote at an election as prescribed by section 1 of Article II of our State Constitution. They are not prerequisites to the act of registering as a voter.It is one's present residence, not duration of residence, that one must declare upon registering. To that end, the registrant is required only to say '[m]y residence is * * *.' Section 230, subd. 3.
Some confusion has arisen because of a statutory requirement that a person must have been registered 54 days or more prior to a given election in order to vote at that election. 'Registration of electors shall be in progress at all times except during the 53 days immediately preceding any election, when registration shall cease for that election as to electors residing in the territory within which the election is to be held.' Section 122. That, obviously, is a limitation imposed to facilitate the orderly and accurate preparation of voting lists for use at any election. It has no direct bearing upon the constitutional requirement that a voter reside in the precinct 54 days, in the county 90 days, or in the state one year prior to an election. A person may have possessed those qualifications many times over at the time of registration. Here, we are not concerned with this limitation. At the time the registrations in question were made (November 17, 1959 and various dates preceding) the next succeeding election, insofar as judicially cognizable, was the primary election scheduled to be held in June, 1960, and there is no evidence that an election might sooner be held in the territory proposed for annexation. The filing of the petition for annexation was not an election and the applicable statute provides for no election.
The appellant attaches particular significance to the word 'voters' in...
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