75 P. 829 | Cal. | 1904
Section 8 of article XI of the constitution provides that when a freeholder's charter has been approved by the legislature, a copy thereof "certified by the mayor, or chief executive officer, and authenticated by the seal of such city, setting forth the submission of such charter to the electors, and its ratification by them, shall, after the approval of such charter by the legislature, be made, in duplicate, and deposited, one in the office of the secretary of state, and the other, after being recorded in said recorder's office, shall be deposited in the archives of the city, and thereafter all courts shall take judicial notice of such charter." The present proceeding is inmandamus to compel the defendant as mayor of the city of Santa Rosa to perform the act thus required of him by the constitution with respect to a freeholder's charter alleged to have been adopted by the people of Santa Rosa and approved by the legislature. A demurrer was sustained to the complaint and judgment given in favor of the defendant, from which the plaintiff appeals.
It is contended that the charter in question was not legally adopted at the election. The same section of the constitution provides that after such charter is prepared by the board of freeholders and duly published "it shall be submitted to the qualified electors of said city at a general or special election, and if a majority of such qualified electors voting thereat shall ratify the same, it shall thereafter be submitted to the legislature for its approval or rejection as a whole, without power of alteration or amendment." The complaint shows that the charter, after having been prepared by the freeholders and duly published, was submitted to the qualified electors of the city at the general municipal election in April, 1902; that at said election 1,474 votes were cast, but upon the question of adoption of the charter there were only 1,143 votes, of which 611 were in favor of the charter and 532 against it. The same facts also appear in the legislative resolution approving the *301
charter. (Stats. 1903, p. 703.) The defendant justifies his refusal to certify the charter upon the ground that such a charter cannot be legally ratified unless it receives a majority of the votes of all electors voting at such election, and that a majority of those voting upon the proposition is not sufficient, unless it also constitutes a majority of all the votes cast at said election for any and all purposes. If this proposition is correct, the judgment must be affirmed. The case of People v.Town of Berkeley,
The case is clearly distinguishable from that of Howland v.Supervisors,
For the same reason the case is distinguishable from that ofPeople v. Sausalito,
In the case at bar the language of the constitutional provision does not call for an election "for the purpose" of determining the question, but expressly allows the question to be submitted "at a general or special election," and in terms requires that, whether submitted at a general or special election, it must receive the assent of a majority of the qualified *303 electors voting at the election. For these reasons we are of the opinion that the action of the court below in sustaining the demurrer was correct.
The judgment is affirmed.
McFarland, J., Angellotti, J., Van Dyke, J., and Lorigan, J., concurred.