Butters v. Board of Supervisors , 217 Cal. 515 ( 1933 )

THE COURT.

This is a petition for a writ of mandate. The facts are undisputed. Pursuant to article XI, section 7 1/2, of the California Constitution, the requisite number of qualified electors of Imperial County petitioned for the election of a board of fifteen freeholders to prepare a new charter for said county. An election was held and the persons elected prepared a charter, which was duly signed and copies filed with the county clerk and county recorder on November 1, 1932. On November 14th, the respondent Board of Supervisors passed a motion to publish the charter, as required by said section of the Constitution, the first publication to be November 15th; but for some reason this direction was not carried out on that date. Thereafter, the Board was advised that there was doubt as to its power to proceed further in the matter, and it therefore refused and still refuses to publish the charter. Petitioner, a resident elector and property owner, seeks this petition to compel respondents to do so.

[1] The relevant provision of the above-mentioned section of the Constitution is as follows: "Said board of supervisors shall thereupon cause said proposed charter to be published for at least ten times . . . and the first publication . . . shall be made within fifteen days after the filing of a copy thereof, as aforesaid, in the office of the county clerk." Respondents contend that since the Board has failed to make the first publication within fifteen days from filing, it is without jurisdiction to take any further steps toward publication or completion of the proceedings. We are reluctantly forced to agree with this contention. The provisions of our Constitution are mandatory unless by express words they are declared to be otherwise. (Const., art. I, sec. 22.) The provisions of article XI, section 8, requiring advertisement of the availability of copies of proposed city charters, were held to be mandatory inPeople v. San Buenaventura, 213 Cal. 637 [3 P.2d 3]; and the section involved in the instant case was held to invalidate a charter filed too late by the freeholders. (Doran v. Foster, 189 Cal. 610 [209 P. 548].) No satisfactory reasoning or authority has been cited to us which would indicate that a different construction can be placed on the section under the facts herein presented.

The petition is denied.