Sidler v. City Council of Bakersfield

JAMES, J.

Mandate to compel the respondent, city council of the city of Bakersfield, to order and fix a day for the holding of a recall election. A petition, duly certified by the clerk of the municipality to be sufficient and asking for the recall of a councilman, was submitted to the respondent council. Notice of the certification and submission of such petition was also given to the officer sought to be recalled by said clerk, as the city charter provided, and said official failed to take advantage of the option given him by the charter to resign. Nevertheless, the city council continued, and still continues, to refuse to order and fix a day for the holding of the recall election. The alternative writ was issued herein and, by way of return, demurrer and answer were filed. The answer raised no issue of fact and the entire cause was submitted after argument by counsel. The sole point relied upon by respondents as justifying the refusal of the council to order the recall election is that the petition contained no statement of the ground upon which the removal of the officer was sought and hence was insufficient.

[1]

Upon being presented with a duly certified recall petition the duty of the city council under the provisions of the charter to order an election to be held is a mandatory one. This duty, however, is mandatory only where a petition sufficient in form and substance is presented. If any requisite and material statement was omitted therefrom so as to make it appear that the petition was invalid, the council would be justified in the action taken.

(Conn

v.

City Council of the

[351]

City of Richmond, 17 Cal.

App. 705, [121 Pac. 714, 719].) The charter of the city of Bakersfield (Stats. 1915, p. 1552) contains provisions authorizing the recall of municipal officers. Sections 87, 88, and 90 read as follows:

“See. 87. Any officer elected or appointed for a definite term may be recalled, after the expiration of three months from the commencement of his term, by the electors entitled to vote for his successor. When a petition for the recall of a councilman is presented signed by electors of the ward which he represents, equal in number to twenty-five per cent, or more, of the total vote cast for councilman in such ward, at the last general election, and certified by the clerk, and his resignation shall not have been received, as herein provided, the recall of such councilman shall be submitted to a vote of the electors of said ward. When the officer sought to be recalled is not a councilman, the recall of such officer shall be signed by electors of the city equal in number to twenty-five per cent, or more, of the number of votes cast at the last general election. The signatures to such petition need not be all appended to one paper.