Ryder v. City of Los Altos

NOURSE, P. J.

Plaintiff sued for a writ of mandate to require the defendants to call a special election on a petition seeking an election to vote on the question of the disincorporation of the city. The defendants had denied the petition

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and had refused to call an election on the grounds that it was barred by the then existing provisions of section 1702 of the Elections Code, which then read:

“No petition for the dissolution or disincorporation of a city, or city and county, may be circulated until after the expiration of two years from the date that such city, or city and county, was incorporated.”

The contention of the appellant is that the action of the council was controlled by the Government Code which contained no limitation as to the time for such an election.

The facts are that the city of Los Altos was duly incorporated as a city of the sixth class on December 1, 1952. The petition to disincorporate was filed on December 8, 1952. The city council rejected the petition on the ground that it had been filed contrary to the provisions of the Elections Code.

At the time of these proceedings, section 1702 of the Elections Code read as above quoted. At that time the Government Code contained no limitation on the date of filing of such petition- Subsequent to the election, and in 1953, the Legislature eliminated the time limit from section 1702 and added a new section 34701.1 to the Government Code, reading: “34701.1. No petition for the dissolution or disincorporation of a city, or city and county, may be circulated until after the expiration of two years from the date that such city, or city and county, was incorporated.” The legislative explanation of the 1953 Act, found in section 3, reads: “This act is intended merely to rearrange the statutory law relating to disincorporation proceedings and it shall not be construed to effect any substantive change in the law, but shall be construed merely as a rearrangement of existing statutory law.”

The effect of this amendment was a legislative determination that there was no change in the substantive law which was that no petition for disincorporation could be filed less than two years after the date of incorporation.