Muehleisen v. Forward

California Supreme Court Jun 28, 1935 No. L. A. 15066Published

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Holding. The court held that the recall proceedings were invalid because the proponents failed to comply with the mandatory requirements of the general state law, which the San Diego city charter expressly incorporates by reference.

Issues

Whether the general state law governing recall elections applies to the city of San Diego.
Whether the recall proceedings complied with the requirements of the city charter and applicable general law.

Disposition. peremptory writ denied

Quotations verified verbatim against the opinion

“It is clear that if the general law applies to recall elections in the city of San Diego, the proceeding was invalid.”

“The charter provides no system of its own; second, that it incorporates by reference, and makes applicable to the city the system established by the general law”

“The requirements which were not followed are among the most important elements of the recall system established by the statute.”

THE COURT.

This is a petition for a writ of mandate, to compel respondents as members of the city council of San Diego to call an election for the recall of certain officers of the city.

Five petitions were delivered to the city clerk on June 30, 1934, demanding recall of four members of the city council and of the city attorney. Notice of insufficiency of signatures was given by him, and supplemental petitions with additional signatures were filed, whereupon on July 23, 1934, the clerk certified that the requisite number of voters had been obtained, and presented the petitions to the city council. This body refused to call the election on the ground that the proceedings did not comply with the law. Thereupon petitioners sought this writ.

The statute governing recall of municipal officers (Decring’s Gen. Laws, 1931, Act 5620a) provides that the proponents of a petition shall first publish a notice of intention to do so accompanied by a printed statement of the reasons for the proposed recall; that the notice and statement shall be published in a newspaper of general circulation, or where none is published within the county, posted in three public places; that a copy of the notice shall be served upon or sent to the officer sought to be recalled, and an affidavit of service filed with the clerk; that within fourteen days thereafter the said officer may publish an answer to the statement; that the petitions shall contain a copy of the notice of intention, and the statement and any answer made thereto, or if the officers have failed to make any answer, this shall be stated. The proponents of the recall proceed

[19]

ing under review made no attempt to comply with these statutory requirements, and it is clear that if the general law applies to recall elections in the city of San Diego, the proceeding was invalid. It therefore becomes necessary to determine whether that law applies to such elections.

The city of San Diego has a freeholders’ charter, adopted under the provisions of article XI, section 8 of the California Constitution. It is settled that in cities operating under such charters, recall of officers is a municipal affair, which may be governed by the provisions of the charter, and that the general law in such eases is superseded.

Muehleisen v. Forward

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THE COURT.

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