Cunningham v. City Council

COUGHLIN, J. The determinative issue on this appeal concerns the validity of a petition to recall two couneilmen of the City of Stanton; arises out of a refusal of the city council to call an election in response to such petition; and is presented through an application for a writ of mandate to compel that body to proceed. Upon application of one of the proponents of the recall, the trial court granted the writ, and the city council appeals from the order so made.

The statutes applicable to the instant proceedings are those contained in the Elections Code prior to its amendment in 1961. For this reason citations from that code herein will designate the prior section number followed, in brackets, by the present section number.

An essential step in the recall of an elected city official is the filing of a petition, in form and substance as prescribed by the statute, which demands his recall and is signed by a designated percentage of the voters. (Elec. Code, § 11101 [27501].) In the instant case, following an authorized practice (Elec. Code, § 11108 [27508]), the proponents of the recall caused several sections of the petition in question to be circulated among the voters for the purpose of obtaining the required number of signatures. Each section contained a copy of the proponents' notice of intention to recall, a statement of the reasons for the recall, and the incumbent’s answer to this statement. The Elections Code provides for such a notice, statement and answer (Elec. Code, §§ 11104, 11106 [27504, 27505]); requires that the petition “bear a copy” of each thereof (Elec. Code, §11107 [27507]); and provides for its circulation and signing in a prescribed manner. The different sections of the petition in question were circulated by different persons. Each section consisted of two or more sheets; the first of these, referred to herein as the face sheet, contained a heading which indicated that the document was a petition for the recall of a particular councilman, naming him, and also contained copies of the notice, statement and answer; the other sheets were for signatures; and, with one exception, the various sheets were not stapled together, but were held in place on a board by a clip. 'Wlien the first sheet became torn or soiled it was removed and replaced by an identical copy. From time to time the signature sheets, with the signatures thereon, were removed and deposited with one of the proponents for assembly into the petition eventually filed with the city clerk. The petition as filed, with respect [342]to each officer, consisted of a single face sheet together with all of the signature sheets gathered from all of the circulators. The evidence established that the face sheets used by each circulator, including the copies of the notice, statement and answer which were a part thereof, were identical; that such copies were present on the clip board when each of the signatures on the signature sheets were obtained; and that such copies also were identical with those which were a part of the petition filed.