People v. City of San Buenaventura

LANGDON, J., Dissenting.

I dissent. In my opinion the case of

Taylor

v.

Cole

is controlling here, and compels a conclusion contrary to that reached in the foregoing opinion. In that case we upheld the adoption of a charter in spite of failure on the part of the proper officials to advertise the notice of availability of copies. The basis of

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the decision is best expressed in the language of Mr. Justice Preston, as follows: ( 201 Cal. 338 [ 257 Pac. 40, 44 ]): “In the case before us, the Constitution placed upon the legislature the plain duty of seeing that the proceedings by which the charter amendments were proposed were regular in all respects. If jurisdictional defects existed, it was the duty of the legislature to reject the documents tendered as a whole and withhold ratification. The legislature saw fit to accept the certificate of the defendant board and such other evidence as it may have taken and its conclusion that- the election was regular is not open to question in court proceedings, at least in the absence of fraud.” (See, also,

Fragley

v.

Phelan,

126 Cal. 383, 403 [ 58 Pac. 923 ].)

This proposition necessarily follows from the view that a municipal charter is a statute of the state, and as such is clothed with a presumption of validity. The courts will not, by a resort to evidence outside the act, attempt to determine whether the legislature was warranted in finding that it had been validly adopted.

(Stevenson

v.

Colgan,

91 Cal. 649 [ 25 Am. St. Rep. 230 , 14 L. R. A. 459, 27 Pac. 1089 ];

People

v.

Sacramento Drainage Dist.,

155 Cal. 373 [ 103 Pac. 207 ];

Taylor

v.

Cole, supra; Allen

v.

State,

114 Ariz. 458 [44 L. R. A. (N. S.) 468, 130 Pac. 1114 ].)

The majority opinion considers this rule inapplicable because of certain facts recited in the explanatory statement or certificate of the mayor and clerk, which certificate was printed with the act. The recitals, it is said, constitute a defect which appears on the face of the statute. I am unable to agree that the certificate, which is not- an essential part of the act, has any such effect; and the preamble shows that the steps leading to the adoption of the charter were considered and found to be correct- by the legislature.

I am, moreover, satisfied that the legislative determination was correct, in that there was in this case a sufficient compliance with the constitutional requirements. Conceding that the provision in question is

mandatory,

there is nothing to indicate that an absolutely

literal

compliance is necessary, or even possible. The requirement is that a certain fact be advertised, and its purpose is obviously to give notice to the people of the community that they may secure copies of the charter. The Constitution does not prescribe the form of the advertisement, its size, or its content: it provides for

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publication in

one or more

papers, and consequently permits the insertion of a single, small and unimpressive announcement in one newspaper. It is not even stated that there. must be a

paid

advertisement. In the instant case there were printed in several papers the facts required to be brought before the people by the constitutional provision; and almost the entire stock of printed copies of the charter was exhausted by distribution to persons calling for such copies. In view of the vague phraseology of the provision, and its manifest purpose, is it reasonable to say that the proceedings taken in this case were fatally defective ? I think not. There was a substantial compliance with the mandatory requirement, and the net result of the method employed was to carry out the purpose of the requirement much more effectively than by an insignificant paid advertisement in one paper, which latter notice would admittedly be sufficient.

I am convinced that the charter was validly adopted and that the attack upon it is groundless.