96 P. 505 | Cal. Ct. App. | 1908
This is an application for a peremptory writ of mandate, requiring respondent to prepare the sample ballot, to be mailed to the voters of the city of San Jose, for the election to be held there on the third Monday of May, 1908, and the voting machines to be used at that election, according to law, by omitting from said ballots and from the voting machines the following: "Shall the sale of intoxicating liquor as a beverage be allowed in the city of San Jose?" and the words "Yes" and "No" placed in such juxtaposition to said question as to enable the elector to vote for or against the matter referred to therein, the petitioner alleging that the respondent threatens and intends to place such words on said ballots and on said voting machines.
The city of San Jose is a municipal corporation operating under a freeholders' charter, formed and adopted under the provisions of section 8 of article XI of the constitution, and approved by the legislature March 5, 1897 (Stats. 1897, p. 592).
April 15, 1908, the common council passed and adopted an ordinance, which was approved by the mayor, by the terms of which the city clerk (respondent herein) was directed and authorized to place upon the ballot on each voting machine the above-quoted question, in order to submit to the voters at the said election the proposition embodied in such question.
There is no referendum provision in the San Jose charter, the legislative power being conferred exclusively on the common *236
council (article III, chapters 1 and 2). Such power cannot be delegated to the electors (1 Abbott on Municipal Law, sec. 110, p. 195; City of Oakland v. Carpenter et al.,
"The powers of a municipal corporation are such as are granted in express words, or are necessarily or fairly implied in or incident to the powers expressly granted, or indispensable to the declared objects and purposes of the corporation." (20 Am. Eng. Ency. of Law, p. 1139;Hyatt v. Williams,
It follows that the writ should issue as prayed for, and it is so ordered.
Cooper, P. J., and Hall, J., concurred. *237