Harder v. Denton

California Court of Appeal Oct 28, 1935 No. Civ. 5546Published

Before: Plummer Orally

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Holding. The court held that the provision in the city charter requiring candidates' names to be printed on official ballots in alphabetical order is distinct and severable from the unconstitutional proportional voting system, and therefore remains valid and enforceable. Consequently, the court granted a writ of mandate compelling the respondent to follow the charter's alphabetical printing requirement.

Issues

Whether the provision in section 273 of the city charter regarding the alphabetical printing of candidate names is severable from the unconstitutional proportional voting system.
Whether a clerical officer has the authority to disregard a charter provision for ballot printing after a portion of the same section was declared unconstitutional.

Disposition. granted

Quotations verified verbatim against the opinion

“The constitutional and unconstitutional provisions may even be contained in the same section, and yet be perfectly distinct and separable, so that the first may stand though the last fall.”

“it is clear that the first provision of section 273 which provides for the printing of the official ballot is entirely separate and distinct from voting the ballot”

“the writ of mandate is granted.”

THE COURT.

Mr. Justice Plummer orally delivered the opinion of the court on October 28, 1935, as follows:

The Constitution of the state of California, article XI, section 8 thereof, the section having to do with adoption of a city charter and its approval by the legislature, provides as follows:

“The legislature shall by concurrent resolution approve or reject such charter as a whole, without power of alteration or amendment; and if approved by a majority of the members elected to each house it shall become the organic law of such city or city and county, and supersede any existing charter and all laws inconsistent therewith. ’ ’

Subdivision 4, section 8%, of article XI, scheduling the powers that may be set forth in a city charter, specifies that the city charter may provide:

“For the manner in which and the times at which any municipal election shall be held and the result thereof determined; for the manner in which, the times at which, and the terms for which the members of all boards of election shall be elected or appointed, and for the constitution, regulation, compensation and government of such boards, and of their' clerks and attaches, and for all expenses incident to the holding of any election.”

Section 11 of article XI reads:

“Any county, city, town, or township may make and enforce within its limits all such local, police, sanitary, and other regulations as are not in conflict with general laws.” By the first excerpt from section 8 of article XI of the Constitution, which I have just read, after the adoption of the charter by the voters of the city of Sacramento and its approval by the legislature, the legislature possessed no authority thereafter to pass any law which would limit, alter or amend any of the provisions of the city charter. That becomes the fundamental law of the city. True, if there is anything in the charter which is violative of any constitutional provision that portion of the charter, of course, is void, even though ratified by the people and approved by the legislature.

Preliminarily, I may state that the elective franchise is a sacred right. Every elector of the city is interested in the

[609]

Harder v. Denton

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THE COURT.

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