People ex rel. Miller v. Davie

Garoutte, J. This is an investigation instituted in the name of the people, in the nature of quo warranto, to test the title to office of the present" board of public works of the city of Oakland, said board consisting of three commissioners. The defendants, the mayor, the city attorney, and city engineer, are ex officio the commissioners and form this board of public works. They claim title to office under and by virtue of certain amendments to the charter of the city of Oakland. Their tenure of office is attacked by plaintiff upon two grounds: 1. That the election at which the amendments to the charter were submitted to the people was not authorized by law; and therefore said amendments never became part of the city charter; and 2. It is contended that if the election was legal and the amendments [364]adopted in accordance with law, still Miller and Hughes, as members of the board of public works, were entitled to hold office for a full term of -four years.

The amendments to the charter were submitted to the people under an election called and held by virtue of a power claimed to exist in the city council, coming from section 8, article XI, of the constitution of the state, which provides: “ The charter .... may be amended at intervals of not less than two years by proposals therefor, submitted by the legislative authority of the city to the qualified electors thereof, at a general or special election, held at least forty days after the publication of such proposals for twenty days in a daily newspaper of general circulation in such city, and ratified by at least three-fifths of the qualified electors voting thereat, and approved by the legislature, as herein provided for the approval of the charter.” Appellants’ position as to this provision of the constitution is that the words “ special election ” refer to an election held for the purpose of filling a vacancy in office (Pol. Code, sec. 1043), that a special eleciion under the code is an election held for that purpose, and that the legislative mind had such an election in view when this provision of the constitution was enacted. It is further insisted that such provision is a limitation of power, and the mode there prescribed is the measure of the power. Appellant then -claims that these amendments having been voted upon at an election held solely for the purpose' of voting upon them, such an election was neither a general nor special election, and, hence, there was no power and authority vested in the city council to call and hold the election that was so called and held.

In People v. Hoge, 55 Cal. 612, the provision of the constitution here under consideration was before the court, and it was then held to be self-executing. „ As to the legal soundness of such holding we have no doubt; and, that being the fact, the sole question remaining upon this branch of the case rests upon the signification to be given the words “special election.” It is urged