Lubliner v. Alpers — 145 Cal. 291

Majority

p. 291

[S. F. No. 4123.

In Bank.

November 11, 1904.]

MORRIS LUBLINER, Petitioner, v. GEORGE ALPERS et al., comprising the Board of Supervisors of the City and County of San Francisco, Respondents.

Headnote

Amendment of City Charter—Constitution—Time for Election-Discretion of Municipal Legislature—Mandamus.—Under section 8 of article XI of the constitution, where amendments to a municipal charter are petitioned for by fifteen per cent of the qualified voters of the city, the legislative authority of the city, though required to submit the same to the voters thereof, has discretion either to call a special election or to wait until the next general election to submit the proposed amendments to a vote of the people; and mandamus will not lie to control that discretion by compelling the ordering of a special election.

PETITION for Writ of Mandate to the Board of Supervisors of the City and County of San Francisco.

Henley & Costello, for Petitioner.

No appearance for Respondents.

The petitioner, a taxpayer of San Francisco, prays for a writ of mandate to compel the defendants to order a special election for the ratification of certain amendments to the city charter, proposed by petition of more than fifteen per cent of the qualified voters of the city.

Whether or not it is the duty of the defendants to call a special election at this time depends upon the proper construction of the following clause of section 8 of article XI of the constitution:—

“The charter, so ratified, 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 a majority of the electors voting thereon, and approved by the legislature as herein provided for the approval of the charter. Whenever fifteen per cent of the qualified voters of the city shall petition the legislative au

p. 292

thority ’thereof to submit any proposed amendment or amendments to said charter to the qualified voters thereof for approval, the legislative authority thereof must submit the same.”

We are of the opinion that under this provision of the constitution the defendants are invested with full discretion to order a special election, or, if they deem that course unadvisable, to wait until the next general election to submit the proposed amendments to a vote of the people.

Writ denied.