Thompson v. Kerr

THE COURT.

In this original proceeding for a writ of mandate, the petitioner seeks to compel the certification of certain names alleged to have been signed to a supplemental initiative petition proposing a constitutional amendment relative to “Retirement Life Payments”. The signatures which it is sought to have certified were rejected by the respondent county officers either because the signers had not personally affixed the date thereto or because they antedated the filing of the original initiative petition.

An original and an amended petition for mandate have been here filed. Respondents have demurred both generally and specially to the amended petition. In our opinion the demurrers are well taken. In the original petition it was alleged that the respondents Kerr and Hallowell had improperly and arbitrarily rejected 4,120 and 708 signatures, respectively, because the signers assertedly had not personally affixed the date after their respective signatures, it being petitioner’s contention that any requirement therefor is directory and not mandatory. The Elections Code, adopted in 1939, provides that each signer of an initiative petition “shall at the time of signing the petition or paper himself affix thereto the date of his signing . . . (Sec. 45.) This code also de

[132]

dares: “‘Shall’ is mandatory and ‘may’ is permissive.” (Sec. 15.) That the provisions of section 45,

supra,

constitute reasonable legislative regulations in furtherance of and not limitations upon the initiative power reserved in the Constitution is now definitely settled.

(Uhl

v.

Collins,

217 Cal. 1 [17 Pac. (2d) 99, 85 A. L. R. 1370].)

In the amended petition for mandate a shifting of position is evident. It is there expressly alleged for the first time that each of the above-mentioned signers had affixed the date in his “original handwriting”. However, it appears upon examination of such amended petition that the allegation just referred to purports to be made not by the petitioner, who verified the petition, but rather by one designated in the petition as the “proponent” of the initiative measure and who is not a party to this proceeding. Obviously, an allegation by one not a party to the proceeding is meaningless and can have no bearing upon the determination thereof. Upon the argument, the respondents moved to strike such allegation from the amended petition. In so doing, however, they expressed in open court a willingness to waive other grounds of demurrer if the petition were amended in a manner that the petitioner, rather than a stranger to the litigation, should undertake to make the allegation with respect to the matter of the dates having been affixed personally by the signers. Counsel for petitioner thereupon stated in open court that “if there is a change either by word or amendment or substitution of the word ‘petitioner’ for the word ‘proponent’, it will come from the petitioner. I have no privilege to substitute the term and I do not feel that it is incumbent upon me or that it is a responsibility that I have assumed.” In the absence of such amendment, the motion to strike must be, and it is, granted, and the demurrers are hereby sustained to the cause of action directed to the signatures rejected because of the failure of the signers to affix personally the date of signing.