THE PEOPLE OF THE STATE OF CALIFORNIA ex rel. CHARLES COE, Appellant, v. THE CITY OF LOS ANGELES, Respondent, 187 Cal. 56

ANGELLOTTI, C. J. This proceeding is one of quo wwrrcmto, instituted by the attorney-general on the relation of Charles Coe. By it the people of the state assail the validity of the consolidation proceedings under which it is claimed by the city of Los Angeles that the city of Sawtelle has become consolidated with and is a part of the city of Los Angeles, and under which the latter city is exercising municipal governmental functions over the city of Sawtelle. The judgment of the trial court was in favor of the defendant, and 'we have before us an appeal from such judgment. The city of.

Sawtelle existed up to Hay 4, 1917, as a separate municipality of Los Angeles County. On that day an election was held therein, pursuant to proceedings theretofore regularly had, to determine whether it should be consolidated with the larger city of Los Angeles, with the result that by a majority of three or four out of a total vote of something over a thousand, it was declared that the cities should consolidate. No question is raised as to the effectiveness of the election held in the city of Los Angeles.

The principal claim of appellant is that by reason of the form of ballot used in the election in Sawtelle the question to be submitted to the electors thereof was never submitted to nor voted upon by such electors, with the result that the election therein was ineffective for any purpose. It would follow, the consent of the electors manifested by their votes at such an election being essential to a consolidation, that no consolidation was ever effected.

At the time of the proceedings the city of Los Angeles had a large existing bonded indebtedness, for which, of course, none of the property in the city of Sawtelle was liable. It was proposed as one of the conditions of consolidation that for the payment of a very considerable part of such bonded indebtedness the property in the city of Sawtelle should, after consolidation, be subject to taxation in common with the property in the city of Los Angeles as it had theretofore existed.

This condition was fully expressed in the petition originating the consolidation proceeding and in the various orders and notices in such proceeding in both cities.

It is conceded by both parties, as it must be, that the question to be submitted to the electors of each city was the single and indivisible proposition that the two cities be consolidated with the assumption by the city of Sawtelle of the burden of taxation for the payment of the specified part of the existing bonded indebtedness of the city of Los Angeles, and that unless the proceedings were such as to impose that burden on Sawtelle, no consolidation was effected. The proceedings were had under the provisions of

an act “to provide for the consolidation of municipal corporations,” approved June 11, 1913 (Stats. 1913, p. 577), as amended April 29, ,1915 (Stats. 1915, p. 311).

Section 2 of that act, having to do with such proceedings where no assumption of existing bonded indebtedness by either city is contemplated, ■ provided, among other things, that upon the filing of the proper petition with the legislative body of the city having the smaller population, that body must call a special election “and submit to the electors of such municipal corporation the question whether such municipal corporation shall be consolidated.” Notice of such election is required to be given, which notice, among other things “shall distinctly state the proposition to he submitted” (italics ours).

It further provided that upon the ballot there shall be printed the words “Shall the cities of -• and - be consolidated?” with the words “Yes” and “No” with voting squares in which the voter was to stamp a cross to indicate his vote. Various other provisions as to time and manner of notice, voting precincts, election officers, polls, etc., are included.

Section 3 had to do with the subsequent proceedings in the larger city, and it is here expressly provided that “the question” submitted to the electors thereof “shall be stated in the notice of such election and on the ballots to be used at such election.”

Section 5, as amended April 29, 1915, had to do with such consolidation where there was an existing bonded indebtedness on the part of either or both of the municipalities as to which assumption was desired.

It provided that in such a case “the petition . . . may contain a request that the question to be submitted to the electors of the municipal corporation proposed to be consolidated shall be, whether such municipal corporations shall be consolidated, as herein-before in this act provided, and the property in such municipal corporations shall, after such consolidation, be subject to taxation at the same rate, to pay any of such bonded indebtedness specified in said petition.” It was then provided that if such request be made in the petition, “the question of such consolidation shall be submitted to the electors in such municipal corporation not having the greatest population, the same in all respects as upon a petition presented under the provisions of

section two, excepting that the notice of election shall, in addition to the matters required by said section, distinctly state that it is proposed that the property in such municipal corporation shall be taxed at the same rate to pay such bonded indebtedness set forth in said petition.” (Italics wherever used are ours.) The petition here did ask for the submission of this question of consolidation and assumption by Sawtelle of the burden of taxation with the city of Los Angeles for certain specified portions of the bonded indebtedness of the city of Los Angeles.

The ordinance of Sawtelle calling the election was one “calling a special election to submit to the electors of the city of Sawtelle” the question, “Shall the cities of Sawtelle and Los Angeles be consolidated and the property in the said city of Sawtelle thereafter be taxed ... to pay for certain bonded indebtedness of said city of Los Angeles.” The notice of election distinctly stated the proposition “to be so submitted” as including said burdening of the property in Sawtelle with a part of the Los Angeles indebtedness, such part amounting to something over thirty million dollars.

The notice, however, provided for an official ballot entirely silent on the question of bonded indebtedness, and containing only the questions, “Shall the cities of Sawtelle and Los Angeles be consolidated?” “Yes,” and “Shall the cities of Sawtelle and Los Angeles be consolidated?’.’ “No,” with a voting square to the right of and opposite each proposition, in which the voter, to whom such official ballot was delivered at the polling place, was called upon to vote by stamping a cross.

The notice of election stated if he stamped a cross in the square after “Yes” his vote should be counted in favor of consolidation, and if in the square after “No” the vote should be counted against the consolidation. The ballot used at the election was as follows: “INSTRUCTIONS TO VOTERS. “To vote on the question or proposition, stamp a cross (

X) in the voting square after the word ‘Yes’ or after the word ‘No.’ All marks, except the cross (

X) are forbidden. All distinguishing marks or erasures are forbidden and make the ballot void. If you wrongly stamp, tear or deface this ballot, return it to the inspector of election and obtain another. The only votes for consolidation at the election in Sawtelle were such as were indicated by a cross stamped in the square at the right of the word “Yes” on such a ballot. No opportunity was given to any elector to vote in any other way or upon any proposition other than the one printed therein. At the time of the proceedings, subdivisions 6 and 7 of

section 8% of

article XI of the state constitution provided as follows: Subdivision 6. “ ...

No property in any territory hereafter consolidated with or annexed to any city or city and county shall be taxed for the payment of any indebtedness of such city or city and county outstanding at the date of such consolidation or annexation and for the payment of which the property in such territory was not, prior to such consolidation or annexation, subject to such taxation, unless there shall have been submitted to the qualified electors of such territory the proposition regarding the assumption of indebtedness as hereinbefore set forth and the same shall have been approved by a majority of such electors voting thereon.” Subdivision 7. “In all cases of . . . consolidation of two or more incorporated cities, assumption of existing bonded indebtedness by . . . either of the cities so consolidating may be made by a majority vote of the qualified electors voting thereon in the territory or city which shall assume an existing bonded indebtedness.” It is obvious, in view of the constitutional provisions set forth, that consolidation upon the basis of subjecting property in Sawtelle to taxation for the payment of any part of the existing bonded indebtedness of Los Angeles was not effected “unless there” was “submitted to the qualified electors” of Sawtelle “the proposition regarding” such assumption, and such proposition was approved “by a majority of such electors voting thereon.” This is conceded.

But it is claimed, despite the fact that there was no word upon the official ballot to suggest that any question regarding assumption of indebtedness was involved, that the proposition was nevertheless “submitted to the qualified electors” of Sawtelle, and approved by a majority thereof, because of the statement of the proposition “to be . . . submitted” contained in the notice of election, and the requirement in said notice as to the form of ballot to be used at the election, which requirement, it is insisted, was in strict accord with the provisions of the act of June 11, 1913, as amended April 29, 1915, hereinbefore noted.

By this notice, it is said, the electors were given full and specific notice that a vote for consolidation meant consolidation with assumption of the indebtedness specified in the notice, and the ballot used, being, it is claimed, in the form required by the act, the proposition of assumption of indebtedness was, in fact, submitted to and approved by a majority of the electors.

It is to be observed that under our law relative to consolidation of municipal corporations there may be a consolidation without any assumption of existing bonded indebtedness, a consolidation with the assumption of all the existing bonded indebtedness, and a consolidation with an assumption of only a part of the existing bonded indebtedness, The proposition here “to be submitted” was the last of these, a consolidation with an assumption by Sawtelle of a part of the existing bonded indebtedness of Los Angeles.

It was placed upon the official ballot furnished the electors just as though it were the first of these, viz., a proposition for consolidation without any assumption of existing bonded indebtedness, a perfectly legal proposition under the law, but, in view of that very fact, one essentially misleading under the circumstances of this case.

The ballot professed on its face to tell the voter what proposition he was to vote on, but told only half the story, omitting all reference to the very essential part relative to the assumption of any existing bonded indebtedness, the thing as to which it has been deemed proper by the people of the state to enact a constitutional provision requiring submission of the proposition to the electors and approval by them before it could be accomplished.

The importance of stating upon the official ballot, at least in terms sufficiently specific to bring home to the voter knowledge' of the general nature of the proposition upon which he is to vote, has been uniformly recognized by all our laws relative to elections under the so-called Australian ballot system. It is a matter of common knowledge that a great proportion of the electors have no other official knowledge of the matters to be voted on.

The power of the legislature to prescribe the form of ballot may be fully conceded, but certainly it i$ not to be assumed that such body ever intended to provide a form of ballot that would present a proposition to the elector in such a way that it would appear to him to be an entirely different proposition from the one actually intended, even if we should assume it could legally do this. To our minds, under a fair and reasonable construction of the Consolidation Act of June 11, 1913, as amended April 29, 1915, no support can be found therein for the ballot that was used at the Sawtelle election.

It cannot fairly be disputed that it was the design of the act that the proposition to be submitted was to be stated upon the official ballot in terms sufficiently specific to tell the voter in a general way what the whole proposition was. As we have noted,

section 2 had to do solely with consolidations without any assumption of existing bonded indebtedness, and it was as to such a consolidation that the'requirment as to the statement of the question on the ballot was made. As to such a consolidation, the statement there set forth was a full and complete statement of the proposition to be voted on, and. the act, in terms, required this statement to be made on the ballot. In other words, the legislature said that the proposition must be stated on the official ballot. Can it be fairly doubted that such, viz., that the proposition, must be stated on the ballot, was the intent of the legislature in

section 5 of the act, the

section relative to consolidations with assumption of indebtedness. As we have seen, this

section in terms states as the question to be submitted in such a case, a very different question from that submitted under

section 2, one expressly including the matter of assumption of indebtedness, and the

section expressly provides that “the question of such consolidation” be submitted to the electors, meaning, of course, that the question theretofore described be submitted, with the reasonable implication to our minds that such be the question to be, in substantial part at least, printed on the ballot. In other words, the act, fairly construed, requires the proposition to be submitted to be printed, in substantial part at least, on the official ballot. The language of

section 5 of the act that except as to certain matter required to be distinctly stated in the notice of election, “the question” in such a case is to be submitted “the same in all respects as upon a petition under the provisions of

section two,” specially relied on by learned counsel, cannot fairly be construed, in the nature of things, as referring to the form of statement of the question on the ballot, and as authorizing a statement misrepresenting the question submitted, and not in accord with the fact. It is the question to be submitted that is to be submitted in all respects as on a petition presented under

section 2, and the provision simply means that such question, not some other question, is to be submitted in all respects as the question arising under

section 2 is submitted, which, to our minds, includes the statement of such question on the ballot. The departure from the form of ballot requisite in this case under ' the Consolidation Act was so substantial in nature that it cannot be held not to have affected the result. It is very clear that in view of the facts it must be held that under the provisions of that act, the proposition of assumption of indebtedness was never in fact submitted to the electors of Sawtelle or approved by them.

This being our conclusion as to the proper construction of the act, it is unnecessary to consider any question as to its validity under a different construction. From the foregoing it follows that there has been no consolidation of the city of Sawtelle with the city of Los Angeles. The material facts we have discussed, which are undisputed, are sufficiently shown by the findings to warrant, as asked by the appellants, direction that judgment be entered in their favor.

The judgment is reversed, with directions to the court below to enter judgment upon the findings already made, in favor of plaintiffs, in accord with the prayer of their complaint. Shaw, J., Lennon, J., Sloane, J., and Lawlor, J., concurred. Shurtleff, J., not having heard the oral agrument, did not participate.