Giddings v. Board of Trustees

ANGELLOTTI, J.

This is an application for a writ of mandate requiring respondents either to adopt an ordinance proposed by electors of the city, or to call a special election in said city and to submit such proposed ordinance to the electors thereof at such special election. The proposed ordinance is one in effect prohibiting the traffic in alcoholic liquors in said city. This application was originally made to the district court of appeal for the second district, which issued an alternative writ of mandate. After hearing in such court, it was ordered that a writ of mandate issue as prayed for. Subsequently, upon petition therefor, it being made to appear that the questions involved were of very general interest throughout the state and that there was some conflict in the decisions of at least two of our district courts of appeal thereon, the judgment of the district court of appeal was vacated and the proceeding transferred to this court for determination. The following is a portion of the opinion

[697]

of the district court of appeal, written by Presiding Justice Allen:

“The case is this: The electors of San Buenaventura, a city of the fifth class, under the provisions of an act approved April 4, 1911 (Stats. 1911, p. 599), generally known as the Local Option Act, determined at an election regularly called and held in August, 1911, that ‘the sale of alcoholic liquors be licensed in the city. ’ Thereafter the board of trustees adopted an ordinance regulating the sale of alcoholic liquors and provided for the issuance of licenses therefor. On April 1, 1912, a petition was presented, signed by the requisite number of electors, requesting such board of trustees to enact, without alteration, a certain ordinance attached to such petition, or to call an election and submit to -the electors such ordinance, the same being, in effect, one prohibiting the traffic in alcoholic liquors in said city. This petition was presented, with the accompanying ordinance, and the request made under the provisions of an act approved January 2, .1912 (Stats. 1911, (Ex. Sess.), p. 131), known as the Initiative and Referendum Act. This last act was passed to provide by general law the manner of exercising the initiative and referendum powers in cities, counties, and towns of the state in obedience to the recent amendment to the constitution. The board of trustees of San Buenaventura have refused to enact such ordinance so presented, or to call an election and submit such proposed ordinance, upon the theory that under the Local Option Act the people had at a popular election once determined the question, and under the provisions of such act a second election should not be called until after the lapse of two years. It is true that this Local Option Act provides that ‘no election under this act shall be held within two years of any previous election held under the act.’ It is also true that such act provides that ‘it shall not be construed as putting any limitations, except such as are positively stated herein, upon the police powers now possessed by cities, towns and counties.’ The constitution of this state gives to cities, counties, and towns the power to enforce within their limits all police regulations not in conflict with general laws. It is settled law that the regulation or prohibition of the traffic in alcoholic liquors is a police regulation. When the act of April 4, 1911, was enacted the