Basketfield & Kern Electric Railway Co. v. Hay

THE COURT.

Prohibition. On the twentieth day of September, 1915, the city council of the city of Bakersfield adopted an ordinance relating to the regulation and control of the operation of automobile buses within that city. Within thirty days thereafter there was filed with the city clerk an instrument protesting against the passage of the ordinance. This protest was signed by 880 electors of the city. The council having declared this protest sufficient to require a referendum vote upon said ordinance, have ordered an election and referendum thereon to be held on the eleventh day of January, 1916. The petitioner claims that the protest is insufficient to authorize such election or to cause a suspension of the ordinance, and in support of this claim alleges that the protest does not contain the names of a sufficient number of electors. The respondents have filed a general demurrer to

[291]

the petition herein, and it has been stipulated that the case may be disposed of in accordance with our decision upon that demurrer.

The present charter of the city of Bakersfield was adopted by the electors of that city at an election held on the seventh day of November, 1914, and, after its approval by the legislature, was filed with the Secretary of State on January 23, 1915. (Stats. 1915, p. 1552.) Section 32 of the charter provides for referendum elections, and it is there required that a petition protesting against the passage of an ordinance must be “signed by electors of the city, equal in number to twenty-five per centum or more, of the entire vote cast at the last general election.” It is further provided that “the council shall submit the ordinance to the electors of the city .either at the next general municipal election, or at a special election, and such ordinance shall not go into effect unless a majority of the electors voting on the same shall vote in favor thereof. The provisions of article VII respecting the forms and conditions of the petition and the mode of verification and certification and filing, and the ballot to be used, shall be substantially followed, with such modifications as the nature of the case may require.” The petitioner contends that the general election referred to in section 32 is the last general state election, and not the last general municipal election. It is conceded that if the required number is to be tested by the vote cast at the last general municipal election, the number of signatures upon the protest was sufficient; and it is shown by appropriate allegation in the petition that the entire vote cast within the city of Bakersfield on the third day of November, 1914, at the general election held on said date, at which a Governor was elected, was 6,046.