Starbuck v. City of Fullerton

JAMES, J.

Plaintiff’s petition for a writ of mandate was denied in the superior court and she appeals from the judg

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ment. The question presented is as to whether a resolution adopted by the board of trustees of the city of Fullerton, wherein such trustees declared it to be their intention to open a public street over certain property and within the boundaries of a certain district which was described as embracing property to be benefited by the improvement and which it was the intention to assess to pay the costs and expenses thereof, was subject to the referendum provisions of the Constitution of the state and the acts of the legislature.

From the stipulation of facts it appeared that there were nineteen several owners of land within the district described in the resolution, fifteen of whom were consenting owners, the plaintiff being one of those not consenting; that there were one thousand two hundred qualified electors residing within the city of Fullerton and twenty qualified electors residing within the assessment district; that there were 10,755 acres of land within the corporate limits of the city of Fullerton, and about 264 acres of land within the assessment district. It was further stipulated that on the twenty-sixth day of January, 1916, a petition duly signed by a sufficient number of qualified electors of the city of Fullerton was filed with the city clerk and presented to the board of trustees, which petition requested that the resolution be either repealed or submitted to a vote of the. electors of the city; that the city clerk refused to certify to the sufficiency of the petition and the board of trustees refused to either reconsider or repeal the resolution, or submit it to a vote. The Constitution of the state reserves to the electors of cities the right to initiate legislation and to have proposed legislation referred to a vote. This right is, as is stated in the Constitution, “to be exercised under such procedure as may be provided by law.” (Const., art. IV, sec. 1.) The legislature, in 1912, adopted an act to provide the necessary procedure to enable electors of cities to enjoy the right secured to them under the provision of the Constitution. This act was amended in its general substance by the legislature in 1915 (Stats. 1915, p. 319), and provides that proposed ordinances are subject to the initiative and referendum. For the purposes of this case we may assume, although that matter is made the subject of discussion in the briefs, that a resolution of intention such as that adopted by the board of trustees of the city of Fullerton was in effect an ordinance. The question, then, is