Opinion
As Modified on Rehearing May 18, 1929
Hearing granted by Supreme Court July 15, 1929
Appeal from Superior Court, Los Angeles County; Stanley Murray, Judge.
Proceeding by Henry L. Fresholtz and others for writ of mandamus to be directed to the Board of Trustees of the City of Culver City and others. From a judgment for plaintiffs, and an order denying a new trial, defendants appeal. Appeal from order denying new trial dismissed, judgment reversed and cause remanded with directions.
COUNSEL
John J. Dillon, of Culver City, and M. Tellefson, of Los Angeles, for appellants.
L.V. Meloy, of Los Angeles, for respondents.
OPINION
CRAIG, J.
On May 14, 1928, a petition was filed with the clerk of the board of trustees of the city of Culver City, appellants herein, asking that said city be consolidated with the city of Los Angeles. No election was called; certain of the petitioners, respondents above named, filed a complaint in the superior court of Los Angeles county, praying a writ of mandamus "compelling the [[[[trustees] to cause notices to be given of such election by publication of a notice thereof in a newspaper of general circulation, in accordance with subdivision 2 of said Municipal Annexation Act of 1913, and its amendments thereto, or to show cause why they should not do so." Appellants answered, alleging as reasons for their inaction that the petition did not contain sufficient names of qualified electors to constitute a good and sufficient petition to require the calling of an election. As affirmative defenses, it was further alleged that certain of the signatures were obtained by fraud, and that the petition did not contain a sufficient number of names to warrant the calling of an election if the alleged illegal signatures be eliminated.
The trial court found from evidence adduced upon the trial that on said date there were 2,175 qualified electors in the city of Culver City, and that the petition had been signed by 566 qualified electors. As to the special defenses, it found that the petition was valid, and that the allegations of each of said special defenses were untrue. Conclusions of law and judgment were accordingly rendered in favor of the respondents, and directing that the trustees call a special election and submit to the electors the question as to whether or not Culver City should be consolidated with the city of Los Angeles. A motion for new trial was presented, which was denied and the respondents below appeal from the judgment and from the ruling upon such motion.
There is no appeal from an order denying a motion for new trial in civil proceedings, and the defendants’ appeal therefrom is dismissed.
It is contended by appellants that the decision of a board of trustees declaring a petition for consolidation to be insufficient is final and conclusive, and that the superior court was without jurisdiction to entertain the proceeding. In support of this theory, the statutes authorizing such proceedings are compared with those regulating recall elections, wherein it is provided that the petition therefor shall be filed with the county clerk. Act No. 5166 of Deering’s Gen. Laws 1923 (Stats.1913, p. 577), § 2, providing for the consolidation of municipalities, requires that: "Whenever a petition, signed by not less than one-fourth in number of the qualified electors of any municipal corporation, as shown by the registration of electors of the county in which such municipal corporation is situated, is filed with the legislative body thereof, asking that such municipal corporation and any other municipal corporation contiguous thereto, designated in such petition, and having a greater population, be consolidated, such legislative body must, without delay, call a special election and submit to the electors of such municipal corporation the question whether such municipal corporations shall be consolidated."
It is therefore apparent at a glance that these statutes are not similar in the respects contended for by appellants, since the provisions last quoted vest with the board of trustees a power and duty, and as to the latter they are mandatory, even though it be conceded that the functions of the board are quasi judicial. The writ of mandamus "may be issued by any court, except a justice’s or police court, to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station." Hence, it follows that, the board having failed and refused, apparently without a canvass to hold an election as required by the statute, the superior court in the exercise of its mandatory powers had jurisdiction to entertain a petition for the relief prayed.
We think, however, that the court erred in its rulings excluding certain offered evidence tending to disqualify a sufficient number of signers to render the petition insufficient. The county registrar of voters, as a witness in court, canvassed the names upon the petition by comparison with the great register, and testified that more than one-fourth, to wit, 566 of the registered qualified electors of said city had affixed their signatures thereto. Counsel for appellants thereupon attempted to show, by calling 40 of the petitioners as witnesses, that, while in all other respects they were qualified electors, they were not in fact registered at the time of signing the petition, having registered several hours after becoming signers, but on the same day. Objections to such evidence were sustained.
Section 1083a of the Political Code, as amended in 1915, provides as follows: "Whenever, by the constitution or laws of this state, any initiative, referendum, recall or nominating petition or paper, or any petition or paper, is required to be signed by qualified electors, only an elector who is a registered qualified elector at the time he signs such petition or paper shall be entitled to sign *** any such petition or paper on or after the first day of January of an even-numbered year unless he shall, on or since said first day of January, have made an affidavit of registration as required by law."
Clearly, the petition here involved is within the purview of this section. It is equally apparent that, if certain persons had not registered when they signed the petition, they were not "registered qualified electors at the time" they so affix their signatures. The expression "at the time" means coincidentally, or immediately before. Seattle Lumber Co. v. Richardson & Elmer Co., 66 Wash. 671, 120 P. 517; Barnes v. Provoost, 4 Johns. [N.Y.] 61, 4 Am.Dec. 249; Brown v. Wilkinson, 15 Mees & W. 391; Gourley v. Countryman, 18 Okl. 220, 90 P. 427; Lake Shore & M. Ry. Co. v. Ouska, 151 Ill. 232, 37 N.E. 897. But it is contended that, since it is conceded that in each case an inspection of the register disclosed that on the date of the signing the signer was registered, no evidence extraneous of the register is admissible to show the order in which the signing and registering occurred. The respondents herein rely upon Beecham v. Burns, 34 Cal.App. 754, 168 P. 1058, and Minges v. Board of Trustees etc., 27 Cal.App. 15, 148 P. 816. The former relates to a recall election, and merely holds that the clerk must confine his canvass to the great register, and may not receive extraneous evidence as to the qualifications of signing electors. The clerk and the registrar are ministerial officers. They are not empowered to receive or to weigh evidence. Their sole duty and authority, in proper cases, are to inspect the official record and to report its condition and what it discloses to other officers. Decisions limiting the scope of the inquiry conducted by the clerk or the registrar to the register, and forbidding them or the city trustees to receive extraneous evidence, furnish no precedent or authority for us to hold that the superior court may not in an appropriate judicial proceeding receive evidence tending to show the falsity of the register and fraud in its entries. In Sidler v. City Council of Bakersfield, 43 Cal.App. 352, 185 P. 194, and Watts v. Superior Court, 36 Cal.App. 692, 173 P. 183, it was said that, although the clerk’s certificate is final as to matters comprehended within the proper scope of his examination, the forgery of signatures and unauthorized additions thereto are not matters which could become apparent to the clerk in the course of his examination of the register, and would not be included in the matters passed upon by him in determining the sufficiency of the petition. Again, it is held in Koehler v. Board of Trustees etc., 83 Cal.App. 648, 257 P. 187, that the forgery of names to a petition, and additions made to signatures which might not be evidenced by comparison with the records of registration, are not matters as to which the clerk’s certificate is final. Similarly, the registrar’s inspection of the register would not disclose that a signer of the petition was not registered when he signed, provided he registered on the same date that he signed, although subsequently thereto. The determination of such fact, if it be one, would not be within the scope of duty of the clerk or registrar, and so the certificate of either officer would not be conclusive as to that matter.
We have discussed the subject from the standpoint of the admissibility of the evidence offered, and have concluded that objections based upon that theory should have been overruled. Nor do we think it is the intent of the Legislature, as evidenced by the code provisions bearing upon the question, to make valid the signature of an elector to an annexation petition, if that elector had not registered when he signed. The language of section 1083a of the Political Code above quoted would seem clear and conclusive on that point. Section 2 of Act 5166 makes it incumbent upon the legislative body to act upon a petition bearing not less than one-fourth of the qualified electors "as shown by the registration of electors of the county," yet in the light of the provisions of section 1083a of the Political Code it cannot be thought that it was the legislative intent that such a showing on the register should compel the legislative body to put in action the machinery for an election to bring about a consolidation, even though the registration might be forged, or added to, or placed upon the petition subsequently to the signing of the petition for consolidation. Any of these irregularities and illegalities would amount to a fraud, for they would cause the register to make a false showing.
It appears that one-fourth of the qualified electors of the municipality on May 14, 1928, was about 543. If it were true that 40 of the 566 signatures were illegally affixed to the petition because the petitioners were not registered and had no right to sign it, it would result that but 526 legal signatures, or 17 less than the requisite number, would remain. We think the offered evidence was competent and material, and that it was error to exclude it.
The judgment is reversed and the cause remanded to the superior court, and it is directed to receive such evidence as may be offered to show as to each signer the relative time of his signing the petition and registering wherever it appears that the signing and registering occurred on the same day; and it is ordered that if, upon the taking of the testimony as above indicated, it shall be found that there were 543 or more qualified electors who, according to the views herein expressed, were legal signers of the petition when they so signed, the superior court shall direct the trustees of the city of Culver City to call the special election as prayed in the petition. However, if it shall appear that there were not as many as 543 qualified electors who were, at the time they signed, legal signers to said petition, said superior court shall deny the petition for the writ of mandate as prayed. The trial court is directed to take evidence on this issue only, and otherwise it is ordered that the findings of fact and conclusions of law remain undisturbed and in full force and effect.
I concur: WORKS, P.J.
IRA F. THOMPSON, J. (dissenting).
I cannot bring myself to the interpretation of section 1083a of the Political Code announced in the prevailing opinion. We should approach the problem with the thought in mind that a liberal construction is to be given to the enactments in order to allow a free expression of the will of the electors. Magoon v. Heath, 79 Cal.App. 632, 250 P. 583. Section 2 of the act, providing for the consolidation of municipal corporations (Stats. 1913, p. 577), provides that whenever a petition signed by not less than one-fourth of the qualified electors of the municipal corporation "as shown by the registration of electors of the county," etc. (Italics ours.) It is patent that the records of registration constitute the only source from which to determine the total number of qualified electors in the municipality. Why then, if they are determinative of the dividend, should not the information therein contained also establish the divisor, assuming that the desired quotient is not less than four? Or, to phrase it differently, if the registration records give us the total number of qualified electors, why should they not also give us the number of signers who are registered? That this is the construction which should be given to the portion of section 1083a of the Political Code quoted in the majority opinion, is indicated by the concluding sentence of that section: "Wherever, by the Constitution or laws of this state, the county clerk or registrar of voters is required to determine from the records of registration what number of qualified electors have signed such petition or paper, he shall determine that fact with respect to the purported signature of any person from the affidavit of registration, and records relating thereto, current and in effect at the date of such signing of such petition or paper." (Italics ours.) In my opinion section 2 of the act providing for the consolidation of municipal corporations and section 1083a of the Political Code should be read together, and as so construed the latter section would mean that only an elector who is a registered qualified elector at the time he signs such petition, "as shown by the registration of electors of the county," shall be entitled to sign the same. Suppose a deputy registrar of voters were accompanying the circulator of the petition and the citizen desired to register and to sign the paper, certainly it would not be in keeping with a liberal construction of the law to say that his signature should not be counted if he inadvertently attached his name first to the petition, followed by the affidavit of registration.