Rushton v. Lelander

California Court of Appeal Feb 20, 1911 No. Civ. No. 929.Published

Before: Allen

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Holding. The court held that the referendum provisions of the Los Angeles city charter do not permit the amendment of an insufficient protest petition after the expiration of the thirty-day period following an ordinance's approval. Because the original petition was insufficient and the thirty-day window had closed, the ordinance became effective and could not be suspended by subsequent amendments.

Issues

Whether the referendum provisions of the city charter allow for the amendment of an insufficient protest petition after the thirty-day period for filing has expired.
Whether the amendment procedures applicable to initiative petitions under section 198a apply to referendum petitions under section 198b.

Disposition. affirmed

Quotations verified verbatim against the opinion

“it is obvious that that portion of section 198a permitting amendments after thirty days cannot and does not apply to a petition which seeks to invoke the referendum.”

“if the requisite petition constituting the protests be not filed within thirty days, the ordinance becomes effective, and being so effective, the referendum no longer applies to it”

Synopsis

Municipal Chaster of Los Angeles—Initiative and Referendum Sections—Construction and Effect.—Section 198a of the municipal charter of the city of Los Angeles, allowing indefinite amendments to a petition for the initiative of a municipal ordinance, does not apply to a petition invoking the referendum under section 198b of that charter, which must be filed before the end of the thirty-day limit, after which the' ordinance becomes effective, notwithstanding a recital in that section that petitions for the referendum “shall be in all respects in accordance with the provisions of section 198a.”

Id.—Construction of Referendum Reference to Initiative Section— Form of Original Petition.—The provision in referendum section 198b of such charter that petitions therefor “shall be. in all respects in accordance with the provisions of section 198a, except as to the percentage of signers, and be examined and certified by the clerk in all respects as therein provided,” is to be construed as intended to refer solely to the form, substance and certification of the original petition provided for in section 198a, and not to the provision for unlimited amendment thereof.

Id.—Remedy of Voters After Ordinance Becomes Effective.—There is no remedy by referendum after the ordinance becomes effective; but the only remedy of the voters thereafter is to inaugurate a repeal thereof under the initiative section of the charter.

Id.—Improper Remedy by Mandamus.—Mandamus cannot be allowed to compel a referendum where no petitions were filed therefor within the thirty-day limit, upon the expiration of which th'e ordinance became effective, beyond the reach of a referendum.

ALLEN, P. J.

Appeal from a judgment discharging an alternative writ of

mandamus,

and for costs expended.

The petition, the basis for the issuance of the alternative writ, discloses that' the freeholders’ charter of Los Angeles city contains certain provisions with reference to the initiative and referendum; the first thereof having reference to the initiative is found in section 198a, which provides: “The signatures to the petition need not all be appended to one paper, but each signer shall add to his signature his place of residence, giving the street and number.

One of the signers of each such paper

shall make oath before an officer competent to administer oaths, that the statements therein made are true, and that each signature to the paper appended is the genuine signature of the person whose name purports to be thereunto subscribed. Within ten days from the date of filing such petition the city clerk shall examine and from the great register ascertain whether or not said petition is signed by the requisite number of qualified electors, . . . and he shall attach to said petition his certificate showing the result of said examination. If, by the clerk’s certificate, the petition is shown to be insufficient, it may be amended within ten days from the date of such certificate. The clerk shall, within ten days after such amendment, make like examination of the amended petition, and if his certificate shall show the same to be insufficient, it shall be returned to the person filing the same, without prejudice, however, to the filing of a new petition to the same effect.”

Another provision of the charter, section 198b, is with reference to the referendum. This provides, with reference to the character of ordinances under consideration: “No ordinance passed by the city council . . . shall go into effect before thirty days from the time of its final passage and its approval by the mayor, and if during said thirty days a petition signed by electors of the city equal in number to at least

[450]

seven per cent of the entire vote cast for all candidates for mayor at the last preceding general election at which a mayor was elected, protesting against the passage of such ordinance, be presented to the council, the same shall thereupon be suspended from going into operation, and it shall be the duty of the council to reconsider such ordinance, and if the same is not entirely repealed, the council shall submit the ordinance, as is provided in section 198a of this charter, to the vote of the electors of the city. . . . Said petition shall be in all respects in accordance with the provisions of said section 198a, except as to the percentage of signers, and be examined and certified by the clerk in all respects as is therein provided. ’ ’

Rushton v. Lelander

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Synopsis

ALLEN, P. J.

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