Moore v. City of San Diego

HOUSER, J.

From the record herein it appears that under the provisions of an act to provide, among other things, for the “consolidation and abolition of certain municipal offices, and to provide that their duties may be performed by certain officers of the county” (Stats. 1895, p. 219, and amendments thereto; Deering’s Gen. Laws [1923] Act 8464), as well as pursuant to the provisions of the charter of the city of San Diego (chap. 4, art. I; sec. 32, chap. I, art. VI) a properly signed initiative ordinance was filed with the city clerk of said city of San Diego, which in effect provided that the duties of assessing the property and collecting taxes provided by law to be performed by the assessor and the tax collector of said city should thereafter be performed by the county assessor and the county tax collector respectively of the county of San Diego—said county being the county in which said city of San Diego is situated. Thereafter, and on the fourth day of May, 1927, and in due course of law (without election by the people), the city council of the city of San

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Diego passed and adopted the said initiative ordinance which, on the tenth day of May following, was signed and approved by the mayor of the city. On May 12, 1927, a certified copy of such ordinance was filed with the county auditor of the county of San Diego, and thereafter, to wit: on the thirteenth, fourteenth and sixteenth days of May, 1927, in pursuance of the law in such cases made and provided, the ordinance was duly published in a newspaper. It further appears that the city council of the city of San Diego and each of its members, as well as each of the other individual respondents herein, has neglected and refused, and so continues in such neglect and refusal, to take any action, or to do or perform any act or acts required to be done or performed by them or either or any of them in furtherance of such consolidation of offices, as provided either by the statute, or by the provisions of the charter of the city of San Diego, to which reference has been had. Wherefore, the petitioner herein has prayed that this court issue its peremptory writ of mandate, commanding said respondents and each of them, in their and each of their respective capacities, as provided by law, to specifically comply with the requirements of the statute and the provisions of the charter of the city of San Diego applicable to the situation as hereinbefore set forth. The respondents have demurred to the petition, and urge that because of certain alleged defects occurring in the initiative ordinance and in proceedings subsequent to its adoption, as well as the unconstitutionality of a statute later in its enactment than the statute under the provisions of which the proceedings relating to the ordinance in question were instituted, the respondents were and are entirely justified in the legal position assumed by them and each of them. At the outset, therefore, in order that a better understanding of the situation herein involved may be had, it is desirable that some examination may be had of each of the statutes, as well as of the several charter provisions of the city of San Diego, which have a bearing on the controversy. But before proceeding to the main controversy herein one minor objection of respondents should be noticed. It is suggested that the initiatory ordinance was prematurely filed with the county auditor of the county of San Diego. In that connection, the provision of