*1 Apr. 24, 22500. In Bank. A. No. 1953.] [L. Appellant, v. SKELLY, THE PEOPLE ex rel. EDWARD J. GLENDALE, Respondent. CITY OF Kenny Morris, Attorney General, & Brown, Edmund G. Ap- Kenny for per., and Robert W. Skelly pro. Edward J. pellant. Lauten, As City Attorney, John H. McClernan,

Henry O'Melveny Myers, Beebe, L. & James Attorney, sistant Respondent. W. Priest for Sidney and Bennett H. Wall judgment from appeal SHENK, J.This proceeding quo in a warranto city of Glendale defendant city of validity to the of the annexation questions which Act of 1913. under Annexation outlying districts certain stipulated parties appeal purpose For 1951, 18, appears that on facts, from October to the declaring in- adopted a resolution the council of the districts in each of three special to call tention incorporated determine whether 1951, boundaries of November city; that on special duly ordering the adopted council three resolutions 1951; elections to December be held within districts on proper published in that notices of the were three elections *2 Thursdays four form and in the proper newspaper a on next 1951) 6th, (November 15th, 22d, 29th, December ; 11th, 1951 preceding the December Tuesday, elections held on majority in that the by vote a was favor of annexation extended district; January and that the has 28,1952, since government districts the three and control over each of parts of the city of Glendale. plaintiff urges the proceedings that annexation

are provision invalid because the of the Annexation Act of 1913 requires publication of notices of im poses jurisdictional a requirement which was not pertinent with. The provision of this is set forth in section 35123 of the Government Code as follows: “The city legislative body shall cause notice of the election published at least once a for week the four weeks election, general in a newspaper of circulation ...” The plaintiff quoted contends language requires that period full of four weeks, totaling days, elapse be publication tween the first and the date of the election. present days ease there was a total between the publication of the first notice and the date contends, and the trial defendant court held, that requires published notice be once in each to the election and that it is sufficient if publications are any day respective week. The result reached the trial appears sup court to be ported by the decisions City of this court. Fostler v. (1918), Angeles 179 Cal. 263 involved the fore Notice, runner of this same statute. of an annexation election required published at that time was to be least once a week for of four successive weeks preceding” next the. election. The published weekly five times intervals and the election was held three after the last publication. In holding the election valid the court stated at page 264: “The notice was once a week for five publication weeks and the last date of was within one week of the date of the This By election. sufficient ...” parity reasoning publication “within” a week date of publication election would be a sufficient preceding election. Since the statute preceding” “for four successive weeks next election, first which occurred more than four pub- appear advance of the would not to be election requirements. meeting statutory remaining four lication publications days prior place took within a publication requirement held to suffi- election. place cient. In the took days prior of 26 to the election. supported The conclusion of the trial court also v. Mack decision this court Cal. 647 where the construction Code, 35123, was re similar to that in section Government quired. Municipal Bonding Act There the stated an calling bonds ordinance an election the authorization of for " . one . . and two succeeding be a weeks shall each week insertion held publication ...” The court sufficient elapse did between require election and the date of election first notice *3 publication of notices on 26th after held on the of month - 21st the month was valid. the 14th and of Lindsay distinguish case on plaintiff The would was a under consideration ground there that the statute present case, it whereas the of insertions” statute “number is. publication of claimed, is one concerned with the succeeding two each week for of If insertion the notice. “one insertions, then a only specific to a number weeks” refers must likewise four weeks” week for the publication “once a pro- Both of insertions. specific number reference to a have specified of notices require a number visions period of time. designated a during importance plaintiff considerable attaches to the use argues “for” the word “in” word would Legislature intended the used had the construction have been court. The in given the the trial that event read, a week the four weeks have “once to would ’’ In court construed each week one insertion “for succeed- during ing mean an insertion each week. weeks” to might that the statute have Moreover, speculation been framed position significant not clearly the defendant’s to state more plaintiff’s position could suppositions in clearly example, well. For section been more stated as Code, here, applicable provides 6064 of the not Government pursuant this section shall that “Publication of notice to . . . The for four successive weeks. day upon publication notice commences first terminates the end of the fourth thereafter.” asserted, it plaintiff upon which, relies two cases Code, similar construed to that of Government sec- 35123, contrary tion court’s decision herein. In the trial Angeles County Payne (1927), Cal.App. v. County provided Works Water District Act petition hearing that notice for a of a for the formation “published shall be district at least once week for two con- held Appeal secutive ...” Court of District publication particular day pub- that a would constitute following day period,, lication seven elapsed period days following the first publication requirements meet statute. v. 22 Cal.App. Seccombe Roe provision in a deed of trust stated notice of sale thereunder was to week for “at-least once a consecutive weeks.” The court held that a sale could properly place take until 28 after the first had are distinguishable. Those cases Neither contained indicate, with relation to the event noticed, particular weeks which the was to place. take requirement was that the weeks be “consecutive” or “suc- cessive.” Under these circumstances the court in each case day took the view established the be- ginning of the week. But in the case section 35123 particular establishes the weeks. It calls for publication “at least once a week for the four weeks to the election.” (Emphasis added.) It is clear that the designated be the four periods *4 successive of seven days each next pre- ceding the election. At least once in each of these weeks the published. notice must Payne In the and the Seccombe cases the courts upon were called to determine in which of a present effective. In case precluded by determination is the language of the statute.

Neither of those eases made reference to the similarity Lindsay in the case in neither hearing was sought in this court.

736 Early (1853), v. rely upon in Doe parties the decision

Both (57 U.S.) 1079], A statute in that 16 How. L.Ed. [14 week, in “once a notice Supreme weeks.” The Court for at least twelve successive words, legislator used for at least held that has “when at words, we cannot doubt that twelve successive weeks parlance, least in common mean a duration as would do eighty- weeks, or there is in twelve successive the time that signifi days.” However, that the the court it clear the omission speculating on cant words were least.” court stated: “We do statute, words from the those ‘once in each week for twelve if the statute had been doubt concluded, might very well be . . . that successive weeks’ though in different successive that twelve notices sale, day for sale last insertion requires publica case the statute present sufficient.” In the The “at least” for the four weeks.” tion “at least once a week each of in has number reference minimum does not the four weeks and set and the noticed. event four weeks between the first Supreme Court supposed is the nature statute in language used hypothetical Furthermore, in case. Early for 12 “successive” required publication ease noticed, the event than rather significant. previously shown to be distinction why advanced No sufficient reason has been the decisions court the Fostler and the of this cases departed from. statute strong grounds upholding furnishes the election thereunder as those cases. We therefore conclude that the has with. been judgment is affirmed. J., Edmonds, J., Gibson, Traynor, J., C. J., Spence, concurred. J., Dissenting.

SCHAUER, judgment. I wouldreverse the questioned special were The elections here elections. It special proceedings election fundamental jurisdictional. (See of the notice Supervisors (1901), 364, v. Board 131 Cal. Stumpf Am.St.Rep. People ; ex rel. McKune v. 350] 754].) Weller Cal. Am.Dec. John B. meet re- statutory were did not notices which *5 quirements. power period This court has no to lessen of Legislature. notice fixed The annexation elections were void therefore and of no effect. urged already

Insofar it is that this adopted court has policy tolerating departures the legislative from mini- mums I think majority examination the cases cited in the opinion authority discloses that are not holding for the reading place, reached. In the first controlling from of the (Gov. Code, 35123) statute it is at once apparent § notice required is type, duration rather “num- than the type ber considering insertions” which the court was City v. Mack Cal. 647 specifies here relevant that “The legislative body shall cause notice of the published election to be to the election, in a newspaper . . . or if there , none, by is posting it least four preceding weeks next public election in places three territory.” added.) (Italics dealing We are here newspaper publication with a but carefully equally worded alternative (in the sentence if quoted) above newspaper there is no in which publication can be posted notice must be for a duration preceding next the election me seems to to leave legislative no doubt of the intent full four-week of time must elapse between the first (whether notice it by post- ing) and the date the election. The notice in each is notice; weeks; case the is four and in each “prior ease the four weeks is to run “next to” or preceding” the election. Since the period here was days, it follows that the with, statute was not I think this court unhesitatingly hold. do so proper believe that is a function courts to whittle jurisdictional requirement. by judicial down a If construc- the statutory tion two can from period, eliminated why perhaps eight, not four or then six when occasion arises? But point. controlling beside the con- me is Legislature sideration to that it is the function ' fix the duration and character notice and that it uphold function this court to the law as enacted. The law requires days. as enacted Angeles (1918), Fostler v. Cal. 263 [176 support 26-day is cited as notice applicable

here was sufficient. that case once a for a period of four preceding” successive weeks weekly times at intervals five publication. the election was held three after *6 fifth Obviously publication weekly for the intervals each of five provided successive not less than the weeks’ four required by statute, consequently that case fur- notice justification holding publication covering nishes no adequate. less weeks in than four duration (57 early U.S.) Early As v. Doe 16 How. Supreme L.Ed we find the States Court United dealing language so similar using with a statute to that with are concerned cannot we that its decision the facts distinguished. cogently supports principle and on be It be “at least once contemplates for the four to the election” week Early days. of 28 time ease the was that must be made “once of the statute ’’ holding week, for at twelve successive weeks. The least specific; “mean clear and it said the words the court was time that there is twelve successive days.” eighty-four thought I holding it could be instant case Until the accepted as to both law and fact that a week is as settled days pnce a up of seven and that “at to the election” or “at least days. encompass preceding the must election” only days. received notices Admittedly electors judg- void and reverse the hold would therefore ment. I agree expressed

CARTER, Dissenting. with the views J., Schauer, call to one but I wish to attention by Mr. Justice by the is that majority, overlooked point salient to be one element holding of an election is notice of the if equal, a time element which is There is considered. may It importance than the element notice. greater, compliance with and not a strict substantial conceded notice of the election. provides adequate the statute electorate when where merely informs the But The duration going held. an election the elec- and the date of of notice time between permits important is the element which the full func- tion tioning process. democratic thing compliance be no such as substantial

There can with required element duration. The minimum days elapse Only of 28 election was held. before the permitted elapse argument days were and at oral counsel that under his view of the statute for defendant admitted days. time could even have been further shortened to this This conceded. represents

The full duration of time period required Legislature’s decision as to the minimum completion opinion-forming process. It must say be conceded that this was a “close” election.* Who can might changed way been what number of minds have one during other which defendant off the cut statutory period by allowing only 26 after the first publication of the notice. may been voters notice of the election even

though had the time been shortened but should not be legally right statutory deprived their to the full *7 persuade point which to others to their of view. When the must have been the intention of the framers that those in the interested outcome election would have within which to pros propositions and eons fixing the voters. The of a shorter is a violation both spirit and letter of the statute. judgment. would reverse * "The vote York the New Avenue annexation district against for annexation and 1525 annexation. The total number of qualified electors of the York New Avenue annexation district was 4430 3166,

and the number of electors voted who at said election was qualified of the total 71.4% electors. “The vote the Honolulu District annexation district was 205 for against and 141 qualified annexation annexation. The total number of of the electors Honolulu Avenue annexation district was 433 and the number of approximately electors who voted at said election was qualified total electors. 80% Chevy “The vote Chase Drive annexation district against annexation and 11 electors of the annexation. qualified The total number of Chevy Chase Drive annexation district was 25 and the number of electors who voted at said representing election was qualified (One elector, residing total electors. 104% outside the boundaries vote.) close but permitted of said erroneously district was ” (Agreed Appeal.) Statement on