Clark v. Jordan , 7 Cal. 2d 248 ( 1936 )

WASTE, C. J.

According to the allegations in the petition filed herein, the respondent Secretary of State has received a petition, purporting to be an initiative measure to be submitted directly to the electors of the state at the next general election to be held November 3, 1936. Unless this court orders otherwise, the respondent will so submit the measure. Petitioner seeks a peremptory writ of mandate commanding the Secretary of State not to submit the proposed initiative measure to the electors.

At the hearing, and in the briefs filed, two grounds for the issuance of the writ were considered. First, it is contended that the petition was not duly qualified for filing, in that it was not supported by the number of signatures required by law; and, second, that there does not appear across the top of each page after the first page of the petition a “short title” showing the nature of the petition and the subject to which it relates, as required by section 1197b of the Political Code. Both of these grounds of opposition to the submission of the purported measure to the electors have been seriously considered but, as the court has reached the conclusion that the peremptory writ must issue on the second ground of opposition stated, further consideration will not be given to the alleged insufficiency of the signatures attached to the petition.

Section 1197b of the Political Code requires that “Across the top of each page after the first page of every initiative, referendum or recall petition or section thereof which may be prepared and circulated in accordance with law, there shall be printed in eighteen-point gothic type a short title, in not to exceed twenty words, showing the nature of the petition, and the subject to which it relates.” The reason for this requirement has but recently been given by this court: “Its purpose is to throw additional safeguards around the operation of the initiative law. Its design is to give to the elector additional information other than that afforded by the Constitution as to the nature of the petition which he is asked to sign. No elector can intelligently exercise his rights under the initiative law without a knowledge of the petition which he is asked to sign, and any legislation which will increase the facilities of the elector to acquire such information is well within the terms of the - Constitution permitting the enactment of legislation to facilitate the operation of this provision of the Constitution.” (Boyd v. Jordan, 1 Cal. (2d) 468 [35 Pac. (2d) 533]. See, also, what this court said in Wallace v. Zinman, 200 Cal. 585, 592 [254 Pac. 946, 62 A. L. R 1341].) In California Teachers Assn. v. Collins, 1 Cal. (2d) 202 [34 Pac. (2d) 134], it was held that a substantial compliance with section 1197b was all that was required. It was also held that “the requirements of both the Constitution and the statute are intended to and do give information to the electors who are asked to sign the initiative petitions. ’ ’ (See, also, Hunt v. Jordan, 139 Cal. App. 200 [36 Pac. (2d) 828].)

The question squarely arises whether the purported “short title” here in question substantially complies with the requirements of the code section. We are of the opinion that it does not.

The “short title” used on the proposal here under consideration is as follows:

“CERTAIN SALES TAXES FORBIDDEN—CERTAIN TAX LIMITATIONS RESCINDED—CERTAIN HOMESTEAD IMPROVEMENTS AND, PROGRESSIVELY, IMPROVEMENT AND TANGIBLE PERSONAL PROPERTY TAXES ABOLISHED.” Such a title indicates that the proposed act intends. to abolish certain types of taxes and to rescind certain tax limitations. An examination of the proposal demonstrates that in addition to these purposes the proposal also is a tax measure, concerning which purpose the title is wholly silent.

An analysis of the proposal indicates that it proposes to amend certain provisions of the Constitution so as to accomplish the following:

1. It repeals all sales taxes passed by the state or any “subordinate jurisdiction” since January 1, 1933.

2. It places in the Constitution a prohibition against “any new sales tax in whatever guise” in the future.

3. It removes from the Constitution the present restrictions on taxes on real and personal property.

4. It immediately exempts from taxation improvements included within any homestead up to an assessed valuation of $1,000.

5. Over a period of five years, at. the rate of 20 per cent a year, it reduces taxation upon tangible personal property, and upon improvements on land now imposed by counties, cities and other taxing districts, and at the end of five years prohibits any future taxation by any taxing agency of the state, including the state, on personal property or improvements. It also defines the term “improvements”.

6. For the taxation abolished on personal property and improvements it requires that land value taxation be substituted.

It is quite clear that one of the major purposes of the proposal is to substitute land value taxation for the tar now imposed by cities and counties on tangible personal property and improvements on real property. The “short title” above quoted totally fails, directly or indirectly, expressly or impliedly, to indicate that the proposal is intended to work this major and natural change in the existing method of taxation—in fact the title fails to disclose that any new taxes of any kind are to be imposed. The title is carefully worded to indicate to a prospective signer that sales taxes are forbidden, that progressively taxation of personal property and improvements is abolished and that certain tax-limitations are removed, but it totally fails to indicate that the proposal is also a taxing measure. Everything that possibly could induce electors to sign the proposal is carefully included in the short title, but the one thing that would cause them to hesitate—the imposition of new taxes on real property—was certainly excluded. As was stated in the oral argument, the “short title” includes “all the sweet and excludes all the bitter”. Such a title is clearly misleading, and does not substantially comply with section 1197b of the Political Code.

In the Boyd case, supra, it was held that the “short title” there involved was defective in that it failed to disclose that the proposal was in fact a taxing measure. Everything that was said in that case is equally applicable here.

The contention made in the briefs and in the argument of amici curiae that the “short title” would indicate to an elector with “an inquiring mind” that since certain tax limitations are abolished, and certain taxes repealed or abolished, and would therefore cause such an elector to read the proposal before signing, is not convincing. The purpose of the “short title” is to inform the prospective signer of the general purpose of the proposal, and to protect him from being misled or imposed upon. A title which tells the prospective signer that certain taxes are abolished, without telling him that a portion of the abolished taxes are imposed on real property, is definitely misleading. While we are of the opinion that statutes dealing with the initiative should be liberally construed to permit the exercise by the electors of this most important privilege, we are also of the opinion that statutes passed for the purpose of protecting electors from confusing or misleading situations should be enforced.

Let the peremptory writ issue as prayed for.

Curtis, J., Langdon, J., Knight, J., pro tem., Nourse, J., pro tem., and Shenk, J., concurred.