Lynn v. City Council

NORTON, J.,

pro

tem.

This is an original proceeding brought by petitioner, who is a qualified elector of Culver City, a city of the sixth class, to secure a writ of mandate directed to the City Council of that city directing them to call a special election to determine whether the city councilmen thereof, Houck, Bobier, Clark, Coombs and Kinkead, should be removed from office and their successors elected. The clerk filed his certificate that the petition is sufficient as to councilmen Houck and Bobier, but insufficient as to Clark, Coombs and Kinkead. The clerk is made a party to the suit, and as to him it is alleged that he made a false and fraudulent estimate of the number of electors signing said petition and wrongfully eliminated certain signatures from the petition and failed to count them. The answer to the petition having raised issues of fact a referee was appointed to try the issues and make findings which pursuant to the order appointing have been returned to this court, together with a transcript of the testimony taken upon the hearing before him and from which it appears that during the month of November, 1928, recall petitions identical in form in which all the trustees were named and their removal demanded were circulated among the" electors of Culver City. The persons espousing the recall movement

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being advised that not more than one officer could be included in a petition for recall desisted in circulating these joint petitions. In the month of October, 1929, substantially nine months after they had abandoned obtaining signatures to the joint petition, five separate petitions, each naming one of the five couneilmen, were circulated and these were signed—some electors signing all five of the petitions, and others refusing to sign as against some of the couneilmen who were sought to be recalled. It further appears that during the month of November, 1929, both forms of petitions were being circulated and signed by electors. That these joint and several petitions were filed as one peti-' tion with the city clerk on November 22, 1929, and the clerk having certified that the petition, was insufficient as to three of the couneilmen, a supplemental petition naming all of the couneilmen and in the same form as the first petition circulated in which they were all named was circulated and filed as a part of the original petition. The city clerk in making his estimate of the number of qualified electors signing the petition for the recall of the five couneilmen did not include those who had signed the petitions in which the couneilmen were proceeded against separately' and in which each of the five petitions contained only the name of a single councilman. Unless these separate petitions are included therein the joint petition is not signed in sufficient-numbers to . authorize the calling of the recall election demanded by it. The contention of defendants is that the petition filed as it was-did not constitute one petition-and we think they are right in this claim. The petition consisted of seventy-seven pages, each page being a separate petition; that is, each page or sheet was a complete petition in itself stating the grounds of the recall and demanding recall of all the couneilmen