Perham v. City of Los Altos

WOOD (Fred B.), J. pro tem.

*

This is an appeal by the city of Los Altos from a judgment declaring void certain annexation proceedings conducted under the Annexation of Uninhabited Territory Act of 1939 (Gov. Code, §§ 35300-35326).

One of the bases of the judgment was a finding that on the day the petition for annexation was presented and filed with the city (November 17, 1959) the territory sought to be annexed included more than 12 registered voters as shown in the records of the county registrar of voters. (The evidence showed that they numbered 14.) The court concluded that because there were more than 12 registered voters at the time of such filing, this was not uninhabited territory and that all acts done in this proceeding were void for want of jurisdiction.

[809]

The city challenges this finding and this conclusion upon the ground that though there were 14 persons registered on the critical day, 8 had registered less than 54 days prior thereto, leaving only 6 who could be considered “registered voters” on that day. It argues that a person cannot vote at an election held in the area of his registration within 53 days after registering. It invokes an unfortunate dictum uttered by this member of this court in

People

v.

City of Richmond,

141 Cal.App.2d 107 [296 P.2d 351], We there held that “the statute requires one to be registered as of the place where he resides on the crucial day, the day of the filing of the petition” and then said “ (Probably, also, he should be entitled to vote if an election were held in that area on that date).” (P. 116.) That statement is not correct. It is a question of residence and registration, not a question of voting, on that day.

The applicable statute, known as the “Annexation of Uninhabited Territory Act of 1939,” consists of §§ 35300-35326 of the Government Code. Sections 35000-35006 are also applicable (§ 35301). Section 35302 declares that contiguous “uninhabited” territory may be annexed to a city pursuant to the provisions of this act.

“Uninhabited territory” is defined in these words: “.. . territory shall be deemed uninhabited if less than twelve registered voters reside within it at the time of the filing of the petition for annexation or the institution of proceedings of the city legislative body.” (§ 35303.) The obvious purpose of this reference to the voter registration records is to furnish a convenient and ready means of ascertaining the number of legal residents of the territory. Registration is based upon the affidavit of the voter (Elec. Code, § 120) which must show the affiant’s “place of residence and post-office address with sufficient particularity to identify it and to determine affiant’s voting precinct” (§ 220, subd. (c) ; see also § 230, subd. 3). The rules for determining “residence” for the purpose of registration and voting show that it means legal residence or domicile. (§§ 5650-5661, especially § 5652.)