Los Angeles herald. [microfilm reel] (Los Angeles [Calif.]) 1900-1911, 1909-03-24
Judge BOrdzVeH'S Opinion Holding
That Recall Election Must Proceed

and their meaning thereby rendered
doubtful; but this fact will not be
allowed to stand in the way of Civ
ing effect to the true intent If that
can be ascertained from an exam
ination and consideration of the en-
tire writing or law. having in mind
the circumstances and the pur-
poses for which the writing was ex-
ecuted or the law enacted. Nor will
the court insert anything which has
been omitted from statute or omit
that which has been inserted in
constituting it's provisions. (See.
1858, c. c. P.)
Question of Law
Whenever the question arises
whether or not the law requires the
election of a public officer by the
vote of the people or by some other
method, all doubts are to be re-
solved in favor of, allowing the
choice to be made by popular vote.
The courts have universally held
that the right to exercise the cleo
toral franchise must be jealously
guarded on all occasions.
Special provisions of a state con-
stitution or a city charter, with re-
spect to a particular matter, are
to be deemed as controlling general
provisions.
The recall provisions of the char
ter, and those alone, must be looked
to for the purpose of determining
the issues here presented. If these
provisions do not allow the selec-
ton of a mayor by popular vote to
succeed one who has resigned after
an election has been called, then the
Gnlanfinr1 Of n hx1 he
city council must be considered as
emitting him to remain in office
until the end of the term for which
Mr.. Harper was originally selected.
and the election ought not to be
held. If, however. all things consid-
cred, it can be said that under such
circumstances the holding of the
election is allowed, then the court
must not interfere.
1t is clearly contemplated by the
section of the charter dealing with
the recall that the successor of him
against whom the proceedings are
instituted shall be elected by the
people. The court should not lay
down rule denying the people this
right which they have reserved to
themselves when the incumbent
against whom the proceedings were
inaugurated has resigned after the
election is ordered, undess the
charter plainly demands it.
The constitutionality of the recall
provisions of the charter are not
questioned by the plaintiff. Indeed.
it must now be regarded as settled
that they do not violate either the
state or the federal constitution, the
point having been practically deter
mined by the decision of the SUI
Ill =
Cal, p. ID, and the court must re-
spect them without discussion OF
their merit or demerit.
Presents Difficulties
While it must be conceded that
the case presents difficulties, never
theless, having in mind the general
principles to which 1 have ad-
verted the manifest objects of the
recall provisions of the charter, the
fact that an election had actually
been called before the resignation
of the mayor, it cannot be con-
cluded that the plaintiff has
presented a case free from the
doubt which is always required be-
fore the extraordinary remedy of
injunction is allowed, and, there
fore, it must be denied. This con-
cluSion can be reached without
iCeiuihS ally lliliiS iItU luC CHdH lcA
nor emitting anything which has
been placed therein. Indeed, I am
inclined to the view that contrary
conclusion would require a reading
into the charter a provision to the
effect that where the officer sought
to be recalled resigns after the
election has been ordered, the pro-
ceedings shall be suspended and
the council then empowered to fill
the vacancy caused by the resigna-
ton, for the remainder of the
elected. Such an Interpolation
would be violative of legal rules by
which the court is bound.
There is a further reason why
the plaintiff may not be granted a
writ enjoining the election. The
judicial must not interfere with the
political branch of the government.
This doctrine is universally recog-
nized by the courts and it's infrac-
ton regarded as trepass upon the
domain of the coordinate branch of
the government. Its use for such
purposes as that desired here would
be a dangerous exercise of judicial
power. (See Sec. 1882, C. c.
In some cases where the legisla-
tive branch of a government is at
tempting to exercise its power
without warrant of law or fraudu-
lently to the damage of the citizens,
the judiciary may interfere. But
no such case is presented here; it is
conceded that the defendants are
acting in entire good faith.
Has Remedy at Law
Moreover, any party interested in
questioning the result of the cleo
ton has his remedy at law. He
may institute quo warranto pro-
ceeGings to determine the rights of
one declared elected to and in
Quoted in the office of mayor. 1t Is
n rule without exception recognized
| by all courts that where a legal
remedy exists, which may be en-
ployed to remedy that of which a
litigant complains, injunction is
| never granted.
| BY the second of the above en-
titled actions the plaintiff seems only
to enjoin the city auditor from
auditing a bill which has already
been incurred for a part of the
election expenses. If the defendants
were acting in bad faith, or if they
were attempting to exercise legis-
lative or administrative functions
which are clearly beyond their
powers as granted by the state
laws and the municipal charter, the
| courts might restrain them. But,
as already stated, such a case is
not made out by plaintiffs COM
plant. And for that reason the
/ injunction must be denied. Further
more, if the judiciary may not in
terfere with the legislative branch
of the government Except in in
stances | have suggested) in an
action where it is directly sought to
have them enjoined, neither will the
court grant such relief where the