People v. City of San Buenaventura

WASTE, C. J.

Oscar Conklin, a resident and taxpayer of the City of San Buenaventura, with the consent of the attorney-general, brought this action in

quo warranto

in the superior court, attacking the validity of the proceedings relating to the adoption of a freeholders’ charter for that city. Demurrer to the complaint, interposed by the defendants, was overruled. Defendants declined to answer, and judgment was entered for the plaintiff.

After the charter was prepared and signed by the freeholders, it was filed in the office of the clerk of the city council, duly printed in the official papers, and submitted to the electors of the city, together with the required notice fixing the date for the election to be held thereon. Copies of the charter were printed in convenient pamphlet form, but the council did not, as required by section 8 of article XI of the state Constitution, “until the date fixed for the election upon such charter”, or at all, “advertise in one or more papers

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of general circulation published in said city a notice that such copies [might] be had upon application therefor”.

A majority of the qualified electors of San Buenaventura voted in favor of the charter, and at the succeeding session of the state legislature (1931) it was approved (Assembly Concurrent Resolution No. 7), and was filed with the Secretary of State January 23, 1931. The City of San Buenaventura claims to be now existing under the purported freeholders’ charter, and the personally named defendants claim to be members of the city council under the new charter. No fraud is alleged nor attempted to be proved. No claim is made that the failure to “advertise”, as required by the Constitution, prevented any voter from intelligently exercising his or her franchise, or that a different result would have obtained if the alleged defect had not existed. The sole contention of plaintiff is that the failure to “advertise” the charter, as required by the Constitution, is a fatal defect* making the action of the legislature in approving the instrument an idle act, and rendering the purported charter of no effect. The appellants argue that the action of the legislature “approving” the purported charter is binding and conclusive in the matter, and cannot be inquired into; and that, granting that the required publication or “advertisement” was not had, there was, in effect, a substantial compliance with the provisions of the Constitution which was sufficient, under the circumstances, to render the omission harmless.