# People Ex Rel. Skelly v. City of Glendale > California Supreme Court · April 24, 1953 · 40 Cal. 2d 732 URL: https://www.frixlaw.com/law-library/cases/9546597 ## Case - **Full name:** The PEOPLE Ex Rel. EDWARD J. SKELLY, Appellant, v. CITY OF GLENDALE, Respondent - **Court:** California Supreme Court - **Decided:** April 24, 1953 - **Citations:** 40 Cal. 2d 732; 256 P.2d 20; 1953 Cal. LEXIS 230 - **Precedential status:** Published - **Opinion:** Dissent by Schauer - **Judges:** Shenk, Schauer, Carter - **Cited by:** 2 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9546597 ## Opinion text SCHAUER, J., Dissenting. I would reverse the judgment. The elections here questioned were special elections. It is fundamental that in special election proceedings the giving of the notice prescribed by statute is jurisdictional. (See Stumpf v. Board of Supervisors (1901), 131 Cal. 364, 368 [ 63 P. 663 , 82 Am.St.Rep. 350 ] ; People ex rel. McKune v. John B. Weller (1858), 11 Cal. 49, 62 [70 Am.Dec. 754].) The notices which were given did not meet the statutory re *737 quirements. This court has no power to lessen the period of notice fixed by the Legislature. The annexation elections were therefore void and of no effect. Insofar as it is urged that this court has already adopted a policy of tolerating departures from the legislative minimums I think examination of the cases cited in the majority opinion discloses that they are not authority for the holding reached. In the first place, from a reading of the controlling statute (Gov. Code, § 35123) it is at once apparent that the notice required is of the duration type, rather than the “number of insertions” type which the court was considering in City of Lindsay v. Mack (1911), 160 Cal. 647 [ 117 P. 924 ], The statute here relevant specifies that “The city legislative body shall cause notice of the election to be published at least once a week for the four weeks prior to the election, in a newspaper . . . , or if there is none, by posting it at least four weeks next preceding the election in three public places within the territory.” (Italics added.) We are dealing here with a newspaper publication but the equally carefully worded alternative requirement (in the sentence above quoted) that if there is no newspaper in which publication can be made the notice must be posted for a period four weeks in duration next preceding the election seems to me to leave no doubt of the legislative intent that a full four-week period of time must elapse between the first giving of the notice (whether it be by publication or by posting) and the date of the election. The notice in each case is a duration notice; in each case the period is four weeks; and in each ease the four weeks is to run “prior to” or “next preceding” the election. Since the elapsed period here was only 26 days, it follows that the statute was not complied with, and I think this court should unhesitatingly so hold. I do not believe that it is a proper function of courts to whittle down a jurisdictional requirement. If by judicial construction two days can be eliminated from the statutory period, then why not four or six or perhaps eight, when occasion arises? But that is beside the point. The controlling consideration to me is that it is the function of the Legislature ' to fix the duration and character of notice and that it is the function of this court to uphold the law as enacted. The law as enacted requires 28 days. Fostler v. City of Los Angeles (1918), 179 Cal. 263 [ 176 P. 438 ], is cited as support for the view that the 26-day notice *738 here given was sufficient. In that case the applicable statute required notice to be published “at least once a week for a period of four successive weeks next preceding” the election. The notice was published five times at weekly intervals and the election was held three days after the fifth publication. Obviously the publication at weekly intervals for each of five successive publications provided not less than the four weeks’ notice required by the statute, and consequently that case furnishes no justification for a holding that publication covering a period less than four weeks in duration is adequate. As early as Early v. Doe (1853), 16 How. (57 U.S.) 610 [14 L.Ed 1079], we find the United States Supreme Court dealing with a statute using language so similar to that with which we are concerned that its decision cannot by the facts and on principle be distinguished. It cogently supports the view that the requirement that publication be “at least once a week for the four weeks prior to the election” contemplates an elapsed time of 28 days. In the Early ease the language of the statute was that publication must be made “once in each week, for at least twelve successive weeks. ’ ’ The holding of the court was clear and specific; it said the words “mean a duration of the time that there is in twelve successive weeks, or eighty-four days.” Until the holding of the instant case I thought it could be accepted as settled as to both law and fact that a week is made up of seven days and that “at least pnce a week for the four weeks prior to the election” or “at least four weeks next preceding the election” must encompass at least 28 days. Admittedly the electors received notices of only 26 days. I would therefore hold the elections void and reverse the judgment. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9546597. Public record. Not legal advice.