City of San Buenaventura v. McGuire

Petition for writ of mandate.

San Buenaventura is a city of the fifth class, the government of which, by the general municipal incorporation act of 1883, is vested in a board of five trustees. By a vote of three of the trustees, being the petitioners herein, an ordinance, in the exercise of the police power, was passed imposing a penalty. The president of the board and one other member thereof voted against such ordinance, and the president, relator herein, refuses to sign the ordinance and this proceeding is instituted to compel such action on the part of the president.

A demurrer is interposed to the petition, general, as well as upon the ground of misjoinder of parties plaintiff. At the same time an answer was filed, to which a general demurrer is interposed.

The general act providing for the organization, incorporation, and government of municipal corporations, enacted March 13, 1883 (Stats. 1883, p. 93), divides the cities of the state into six classes, in four of which a mayor is provided. And in the fourth class he is made a member of the council with the right to vote only in case of a tie. In the fifth and sixth classes the city council is required to elect one of its members president. Among the duties imposed upon such president of the city council is the signing, in conjunction with the clerk, of all ordinances preliminary to their publication. No veto power is given to the president of the board *Page 499 of trustees in either class, nor is there anything in the act requiring the president of the board of trustees to perform the duties of the mayor. Afterward, on March 27, 1897 (Stats. 1897, p. 190), the legislature passed an act entitled, "An Act to require Ordinances and Resolutions passed by the City Council or other legislative body of any municipality to be presented to the Mayor, or other chief executive officer of such municipality, for his approval."

"Section 1. Every ordinance . . . imposing a penalty, which shall have passed the City Council, shall, before it takes effect, be presented to the Mayor for his approval. The Mayor shall return such ordinance or resolution to the City Council within ten days after receiving it. If he approve it, he shall sign it, and it shall then take effect. If he disapprove it, he shall specify his objections thereto in writing. If he do not return it with such disapproval within the time above specified, it shall take effect as if he had approved it. . . . If the ordinance or resolution shall fail to receive, upon the first vote thereon after its return with the Mayor's disapproval, the affirmative votes of three-fourths of all the members, it shall be deemed finally lost, . . . provided, that the provisions of this section shall not apply to cities in which the Mayor is a member of the City Council, or other governing body.