Bricker v. Banks

FINCH, P. J.

This is an original application for a writ of mandate to compel the city clerk of Stockton to certify and file two petitions, one for the recall of a city councilman and the other for the recall of four other city councilmen, and to compel the city council to call a special election to determine whether the councilmen named in the petitions shall be recalled. The city clerk refused to certify and file either petition on the ground that in each of them the statement of the reasons for demanding the recall contained more than two hundred words and one of them on the further ground that it demanded the recall of four city councilmen.

The charter of the city of Stockton provides for the recall of elective officers thereof. Article XXVIII, section 2, relating to recall of officers provides: “The petition must contain a statement of the reasons for the demand.” (Stats. 1923, p. 1394.) Section 5 of the same article provides: “In the published call for the election there shall be printed in not more than two hundred words the reasons for demanding the recall of the officer as set forth in the recall petition.” Each petition involved herein contains nearly three hundred words in the statement of the reasons for the recall. It is apparent therefore that the reasons for demanding the recall “as set forth in the recall petition” cannot “be printed in not more than two hundred words.” If two hundred words are to be selected from the statement contained in the petition, it does not appear upon what officer the 'duty of selecting those words falls. A writ of mandate issues “to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust or station.” (Code Civ. Proc., sec. 1085.) The principle of law involved is analogous to that in

Bennett

v.

Drullard,

27 Cal. App. 180, 184 [149 Pac. 368], where it

[89]

was held that there was no duty specially enjoined upon the city council and city clerk, respondents therein, to segregate the invalid from the valid propositions contained in the initiative petition there under consideration and submit the valid parts to the voters. Counsel for the petitioner herein contends that the provision of the charter limiting to two hundred words the reasons for demanding the recall of an officer is directory only. It may be conceded that a recall election held in pursuance of a petition stating the reasons for the recall in somewhat more than two hundred words would not be held invalid on the mere ground that the published call for the election used too many words in stating such reasons, but in the initial stages of a proceeding for the recall of an officer, in determining the sufficiency of a petition therefor, the law certainly does not enjoin upon any officer, as a duty resulting from his office, the disregard of even a directory statute.