Fraser v. Cummings

NOURSE, J.

This is an original proceeding in

mandamus.

The petition alleges that on the 19th of May, 1920, the petitioner filed with respondent, as city clerk of the city of Oakland, a petition for the recall of a commissioner of said city containing something over 10,000 individual certificates, and that respondent, within the time prescribed by the municipal charter, examined said certificates, and, on the 29th of May, determined that they were insufficient to constitute a recall petitition. Of the certificates so filed it is alleged that the clerk found 4,364 defective solely because the signers thereof failed to name the streets between which they resided; that others were found defective because the verification deputy used his initials only in signing his name to the verification; that others were found defective on both of these grounds; and that a small number were found defective because the signers thereof did not sign their names in full as they appear on the records of registration. The truth of the foregoing facts is admitted in the return except as to the certificates rejected because of defective verification. As to these the return alleges that the verification deputy in each case “signed by a different name, or in a different manner, or with a different signature than that of any regularly appointed and qualified verification deputy.” These allegations of the return were not controverted by proof or otherwise by petitioner as he might do. (Sec. 1091, Code Civ. Proc.)

[1]

Of course, if the certificates are not verified by the true signature of a regularly appointed and qualified verification deputy, they are

[506]

invalid.

[2]

The certificates are not before the court, and it is impossible to determine what number were rejected for that reason. The burden being upon petitioner to show the sufficiency of the petition, the determination of the cleric that some of the certificates were invalid because of defective verification cannot be disturbed.

[3]

Another issue is raised by the pleadings which is, however, a pure question of law. That is whether the number of signatures required should be estimated on the basis of the total vote cast for all candidates for the office of mayor at the last preceding general municipal election at which a mayor was elected, as provided by section 7, subdivision' 2, of the charter, or whether the vote cast at the last preceding primary municipal election at which a mayor was elected should form the basis. The controversy arises because after section 7, subdivision 2, was enacted the charter was amended to provide that any candidate at the primary election who received a majority of all the votes cast for all candidates for any particular office should be deemed elected to that office, otherwise the election should be deemed to be a nominating election only. Acting upon the theory that votes cast at the last preceding general municipal election should form the basis of estimate, the city clerk determined that 6,475 signatures were necessary. Upon the basis of votes at the last preceding primary but 5,318 signatures would be required. It is undisputed that the last preceding municipal election at which a mayor was elected in the city of Oakland was that held in 1917 and generally designated as a primary or nominating election. The successful candidate having received a majority of all the votes east at said election for all candidates for the office of mayor was declared elected. If he had not received such a majority the election would have been deemed a nominating election and the two highest candidates would have been required to run again at a second or final election. (Sec. 5, subd. 21, Charter.) Having been elected, the clear inference is that as to him it was a final election, and hence the “last preceding general municipal election at which a mayor was elected” within the terms of section 7, subdivision 2. The vote at that election should, therefore, form the basis for the number of signatures to the petition presented.