Lail v. People ex rel. Osgood

Mr. Justice Denison delivered the opinion of the court. An alternative writ of mandamus directing respondent Lail to transmit a recall' petition to the Denver Election Commission was made permanent and he brings error. The petition was for the recall of Stapleton, mayor of Denver, and was tendered to respondent for filing-; he examined it and refused to accept it for filing for the following reasons: (1) - That it was “not signed by qualified electors equal in number to at least twenty-five per cent of the vote * * * for such office at the election at which” Stapleton was elected. (2)' That the petition was, in form, six hundred and five petitions instead of one. (3) That it did not comply with the ordinance chapter XXVII of the municipal code. Whether and to what extent the respondent might consider the sufficiency of the petition, in view of our conclusions hereinafter stated, it is not necessary to decide. The [461] question of what time is reasonable for such consideration is not before us because the respondent considered and reached a decision. The questions for us are whether he had authority to consider the questions he decided. 1. As to the first ground for rejection of the petition: We are not entirely agreed as to what authority the clerk has, but we are agreed that the most he can do is, as the trial court held, to determine whether the petition is valid on its face. He cannot question the qualifications of the signers; therefore he had no power to reject the petition on this ground. 2. The second point is trifling: The petition was presented in six hundred and five parts. This is expressly permitted by the recall amendment. Charter, Chap. XVII, Sec. 23. 3. The court below rightly held that the third reason for rejection was bad, because the requirements of the ordinance there referred to were in violation of chapter XVII of the charter. Some of the requirements of the ordinance which were not obeyed were that every signer should make oath before a notary public at the time of signing that he was a qualified elector, that he had not signed any other or like petition for the same purpose, that he was fully acquainted with the subject-matter of said petition and that he resided at the address accompanying his signature. The recall amendment provides fully for procedure and this is additional. The council might by ordinance facilitate, but not by added difficulties practically nullify or hinder the purposes of the charter provisions. Schaefer v. Herman, 172 Cal. 338, 155 Pac. 1084. These added requirements would practically prevent recall. The rest of the requirements of the chapter refer to qualifications of signers and are treated above. 4. It is claimed that the expression in said § 23 “the six preceding sections” cannot refer to sections 22a and 22b, because they, having been passed at the same election as 23, had no existence when that section was voted on, and [462] that other sections were defeated at that election which, if they had been carried and the present 22a and 22b defeated, would have occupied their places, that therefore the electors would be voting for they knew not what, and that it follows that the six preceding sections means those which have preceded § 23 before its amendment even though some of them have no relation to its subject. We think it enough to say that § 23'must be construed as referring to such of the preceding sections as are applicable to it and that it is more reasonable to say that the voters intended to refer to relevant sections then being enacted than to irrelevant ones already enacted. 5. It is said that § 2 of the amended charter of 1916, called the Speer amendment, is inconsistent with and therefore repeals said § 23 because it declares who shall become mayor in case of a vacancy in that office. Of this we need only to say that we all think there is nothing inconsistent in the two sections, because in case of recall the incumbent is put out and his successor put in at the same moment and there is therefore no vacancy. The judgment is affirmed. Mr. Chief Justice Teller and Mr. Justice Burke dissent.