Simas v. City of Oakland

WOOD (Fred B.), J. The sole question is whether or not the Oakland City Council had power by resolution to submit to a referendum vote at the ensuing general municipal election, an initiative ordinance which it had just passed.

The initiative provisions of the charter appear in Article XXI, comprising sections 162-176. Section 164 provides that if the initiative petition is signed by electors equal in number to 15 per cent of the vote cast for all candidates for mayor at the last preceding general municipal election and contains a request that the proposed ordinance be submitted forthwith to the vote of the people at a special election, then either: “ (a) The Council shall pass said ordinance without alteration within twenty days after the attachment of the Clerk’s Certificate of Sufficiency to the accompanying petition; or, (b) Within twenty-five days after the Clerk shall have attached to the petition accompanying such ordinance his Certificate of Sufficiency, the Council shall proceed to call a special election at which such ordinance, without alteration, shall be submitted to the vote of the electors; unless some General or Special Municipal Election occurs not earlier than thirty (30) days and not later than ninety (90) days after the City Clerk shall have attached such Certificate of Sufficiency, in which latter event said measure shall be voted on at such Special or General Municipal Election.”

The initiative petition in question met the specifications of section 164 and on July 15, 1954, the council passed the ordinance pursuant to the power vested in it by subdivision (a) of the section. At that moment, it would seem, the ordinance took effect and became operative as a law of the city.

Thereafter and on the same day the council adopted a resolution which recited that great expense would be saved by submitting this ordinance at the next ensuing general municipal [304]election (to be held in April, 1955) instead of calling and holding a special election, and purported to submit the ordinance “to a ‘referendum’ vote at the next General Municipal Election in accordance with the provisions of Article XXII” of the charter.

This was clearly in contravention of the provisions of section 164, which conferred in the alternative the power to pass or to submit the ordinance forthwith to the electors, and in the latter case at a special election. In the instant case no general or special election occurred between 30 and 90 days after the city clerk certified as to the sufficiency of the initiative petition.