
    [No. 13591.
    In Bank.
    August 4, 1890.]
    THE PEOPLE, Appellant, v. DOUGLAS GUNN, Respondent.
    Municipal Corporations — Proceeding to Test Validity oe Charter— Parties. — Whenever a proceeding is such as must test and determine the validity of a municipal charter as such, the municipality, real or pretended, must be made a party.
    Id. — Quo Warranto against Mayor — Attack upon Freeholders’ Charter — City a Necessary Party.—In an action in the nature of quo warranto, where nominally the proceeding is to oust the defendant from the office of mayor, but it is apparent on the face of the complaint that the real object of the action is to determine the right of a city to exercise the franchise of a municipal corporation under a freeholders’ charter claimed to have been adopted by the people and approved by the legislature, and the complaint attempts to make no case against the defendant except through the alleged invalidity of the charter, the municipality is a proper and necessary party defendant to the proceeding.
    Id.—Pleading — Sueeioiency oe Complaint — Violation oe Constitution in Adopting Charter. — In such action, a complaint alleging that the board of freeholders was elected by only a portion of the qualified voters of the city; that a portion of the city was omitted in calling the election; that no duplicate of the proposed charter was delivered or returned to the mayor or recorder of the county, as required by the constitution; that the proposed charter was not published as required thereby; and that the election for its adoption and ratification was called and held less than the required number of days after the completion of the publication, contrary to the constitution, — states a cause of action for the annulment of the charter, and the ousting of the mayor from office, if the proper parties are made defendants.
    Id. — Deeects in Municipal Organization — Distinction between Mandatory and Directory Provisions.—Decisions holding that defects in a municipal organization are insignificant and immaterial, when relating to procedure under statutes held to be merely directory, have no application to procedure under constitutional provisions expressly declared to be mandatory and prohibitory.
    Id. — Constitution Mandatory and Prohibitory — Measure oe Power — Conditions Precedent to Legislation.—The provisions of the constitution of this state relating to the organization of municipal corporations are mandatory and prohibitory, and the mode of procedure required thereby is the measure of power, and the acts required by it to be performed are conditions precedent and necessary to the validity of the legislation which it authorizes, whether that legislation he by the people of a municipality under article 11, or by the senate and assembly under article 4, of the constitution.
    Id. — Power oe Legislature — Approval oe Freeholders’ Charter— Determination oe Regularity — Judicial Power.—The legislature does not exercise the law-making power in approving a freeholders’ charter by joint resolution, and cannot conclusively determine whether or not the municipal authorities and people of the city adopting the charter have proceeded regularly in its framing and adoption; and it devolves upon the courts to determine whether or not the constitutional conditions precedent to its validity have been complied with.
    Id. — Election of Board of Freeholders—■ Failure to Open Polls — Charter not Affected.—If all subsequent provisions of the constitution were complied with, it may be too late, after an election approving a charter recommended by the board of freeholders, to attack the charter, on the ground that polls were not opened in certain precincts at the election of freeholders, especially if it is not contended or shown that the result could or would have been changed had such polls been open.
    Id.—Election for Charter — Failure to Return or Record Charter — Insufficient Publication —• Improper Time of Election —Invalid Charter. — An election for the adoption of a charter recommended by a committee of freeholders is invalid, if it appears that no duplicate of the proposed charter was delivered or returned to the mayor or to the recorder of the county, and that the election was held without sufficient publication of notice, and in less than the required number of days after completion of the publication, as provided by the constitution; and the charter adopted at such election is illegal and void.
    Appeal from a judgment of the Superior Court of San Diego County.
    The facts are stated in the opinion of the court.
    
      Attorney-General Johnson, Hunsaker & Britt, and Stanly, Stoney & Hayes, for Appellant.
    The constitutionality or validity of the statute, charter, or other authority under which a person assumes to act as an officer may be controverted in a proceeding of the nature of the present, instituted against such person to oust him from the office usurped by him, without joining as a party the municipality whose agent he unlawfully assumes to be. (High on Extraordinary Legal Remedies, sec. 695; Hinze v. People, 92 Ill. 407, 414; Stephens v. People, 89 Ill. 337; Chesshire v. People, 116 Ill. 493.) The usual and legal course is to proceed against the individual officers who it is claimed have usurped the franchise as complained of. (City of Chicago v. People, 80 Ill. 512; People v. Carpenter, 24 N. Y. 86; People v. 
      Gladwin, 41 Mich. 648; Attorney-General v. Page, 38 Mich. 286; People v. Bennett, 29 Mich. 451; 18 Am. Rep. 107; People v. Maynard, 15 Mich. 463; State v. Coffee, 59 Mo. 59, 67; State v. McReynolds, 61 Mo. 203; State v. Parker, 25 Minn. 215; People v. Draper, 15 N. Y. 532; Commonwealth v. Meeser, 44 Pa. St. 341, 343; State v. Independent School District, 44 Iowa, 227; State v. Parsons, 40 N. J. L. 1; Commonwealth v. Fowler, 10 Mass. 290.) In this state the decisions of the supreme court show that the uniform practice has been, not to join as a party the municipality or other corporation or quasi corporation in the service of or under which a defendant in quo warranto claims to exercise a franchise or hold an office, even though the existence of such corporate entity or of its asserted prerogatives is involved in the issues to be determined. (People v. Stanford, 77 Cal. 360; People v. Henshaw, 76 Cal. 436; People v. La Rue, 67 Cal. 526; People v. Parks, 58 Cal. 624; People v. Horsley, 65 Cal. 381; People v. Selfridge, 52 Cal. 331; People v. Chambers, 42 Cal. 201; Brooks v. Fischer, 79 Cal. 173; Ex parte Ah You, 82 Cal. 339.) The exclusion of part of the city from the established election precincts thereof was sufficient to vitiate the subsequent proceedings. (Fort Dodge School District v. Wahkansa, 17 Iowa, 85; Cooley on Constitutional Limitations, 616, and cases cited; State v. Fitzgerald, 37 Minn. 26; People v. Maynard, 15 Mich. 463, 469; Const. Cal., art. 11, sec. 8.) The fact that no copy or duplicate of the charter was delivered or returned to the mayor of the city, or to the recorder of the county, that the proposed charter was never published for the period of twenty days, and that the election upon the question of ratification was held on a day less than thirty days after the completion of publication, are of the essence in the adoption of an instrument of this character. (Const. Cal., art. 11, sec. 8; People v. Riverside, 66 Cal. 288; Harding v. R. R. Co., 65 Ill. 90; State v. Young, 4 Iowa, 561; McKune v. Weller, 11 Cal. 49; McCrary on Elections, sec. 145.) The questions attempted to be passed upon in the recital to the preamble of the statute are judicial questions. (See Weill v. Kenfield, 54 Cal. 111, 117; Jones v. Hutchinson, 43 Ala. 721; Cooley on Constitutional Limitations, 130 et seq.) Re? citáis in a statute are not conclusive of the matters recited, unless for the purpose of interpreting the meaning of the act. (Endlich on the Interpretation of Statutes, sec. 375, and cases cited.) The charter here is not an act of the legislative department, and the recitals in question are entirely dehors the matter before the legislature, which was simply the ratification or rejection of a document submitted to it for that purpose, (Const, Cal., art. 11, sec. 8; Brooks v. Fischer, 79 Cal. 173.)
    
      James P. Goodwin, M. H. Luce, H. L. Titus, and Garber, Boalt & Bishop, for Respondent,
    An information or other proceeding in the nature of quo warranto to test and determine the validity of a municipal charter must be directed against the de facto or pretended corporation as the real party interested, and not against the officers thereof. (High on Extraordinary Legal Remedies, 2d ed., sec. 696; People v. Riverside, 66 Cal. 288; People v. Flint, 64 Cal. 49; State v. North, 42 Conn. 79; State v. Atlantic Highlands, 50 N. J. L. 457; State v. Bradford, 32 Vt. 50; State v. Brown, 31 N. J. L. 355; State v. Taylor, 25 Ohio St. 279; State v. Atchison etc. R. R. Co., 24 Heb. 143; 8 Am. St. Rep. 164; People v. Whitcomb, 55 Ill. 172; Regina v. Taylor, 11 Ad. & E. 949; Regina v. Jones, 8 L. T., N. S., 503.) Where the legislature is authorized to enact a particular statute only in a certain contingency or upon the existence of certain facts, the power to determine whether or not such contingency has arisen or such facts exist is committed to the legislature, unless the constitution provides otherwise, and its passage of such statute, with or without recitals to that effect, will be presumed by the courts to have been based upon sufficient evidence of the existence of such contingency or facts, and will be deemed conclusive against any inquiry into the actual existence thereof. (Cooley on Constitutional Limitations, 5th ed., 222, 223; De Camp v. Eveland, 19 Barb. 81, 89; Rumsey v. People, 19 N. Y. 41, 54; People v. Devlin, 33 N. Y. 269, 279; 88 Am. Dec. 377; Eld v. Gorham, 20 Conn. 7,16; Lusher v. Scites, 4 W. Va. 11, 14; Martin v. Mott, 12 Wheat. 19, 29-31; Luther v. Borden, 7 How. 42, 43; Hall v. Steele, 82 Ala. 562; Hare v. Kennerly, 83 Ala. 608; Sherman v. Story, 30 Cal. 253; 89 Am. Dec. 93.) Excluding legal voters from participating in an election will not vitiate the election, unless it affirmatively appears that the excluded voters' were desirous of voting, and that their votes might have changed the result. (Paine on Elections, secs. 514 et seq., citing numerous cases.) Defects and omissions in giving notice of an election will not vitiate it, if the election was held, and there is nothing to show that a sufficient number of voters were prevented from attending or voting, to change the result. (People v. Hoge, 55 Cal. 619; Dishon v. Smith, 10 Iowa, 212, 217, 219; Page Co. v. American etc. Co., 41 Iowa, 115; Commonwealth v. Smith, 132 Mass. 289; Paine on Elections, sec. 389, 399.)
   Fox, J.

This action is brought under chapter 5, title 10, part 2, of the Code of Civil Procedure, to remove the respondent from the office of mayor of the city of San Diego, it being charged that respondent has . usurped and intruded into and unlawfully exercises such office. Judgment went for defendant on demurrer to the complaint, and from such judgment the plaintiff appeals.

The allegations of the complaint necessary to be considered here are: 1. That the city of San Diego is, and at all times mentioned in the complaint has been, a municipal corporation of the fourth class, organized, created, and existing under and by virtue of the general law providing for the organization, incorporation, and government of municipal corporations, approved March 13, 1883, and the act to provide for the classification of municipal corporations, approved March 2, 1883; 2. That the defendant claims to have been elected mayor of said city at a pretended election held on the first Tuesday after the first Monday in April, 1889, and at which pretended election he received a majority of the votes cast for mayor; and that, claiming title to the office by virtue of such pretended election, and not otherwise, or by other authority, he has obtruded himself into, and ever since withheld, and now usurps, the said office of mayor, and exercises the functions and duties thereof. 3. It then proceeds to show that said pretended election was one claimed to be held under and in pursuance of the provisions of a charter pretended to have been framed and adopted under section 8, article 11, of the constitution, and approved by a joint resolution of both houses of the legislature, and sets out facts which show that such charter was not in fact framed or adopted in accordance with the requirements of said or any section of the constitution, and points out numerous defects in the proceedings, by reason whereof it is claimed, and if the allegations of the complaint are true (and by the demurrer they are admitted to be true) it is correctly claimed, that said pretended charter never did become a valid law, and furnished no authority for the holding of such election.

The complaint is demurred to on two grounds: 1. That there is a defect of parties defendant, in that the city of San Diego is a necessary and proper party defendant; 2. That the complaint does not state facts sufficient to constitute a' cause of action.

1. The authorities are by no means uniform upon the first point made upon this demurrer. Several cases are cited from other states, where proceedings which, in effect, would determine the legal existence of a municipal corporation have been sustained without making the municipalty a party, and that where, as here, the question was directly raised. But we think that the weight of authority in sister states and in England, and the better reasoning, is, that whenever the proceeding is such as must test and determine the validity of a municipal charter as such, the municipality, real or pretended, must be made a party. It may be otherwise where the only effect of the proceeding will be to determine the right of some particular person to exercise certain powers under the charter. In this state we are cited to no case, and know of none, where the question of corporate existence was involved, and the question of parties was raised, in which the alleged corporation was not made a party in the first instance, or if not, the court required it to be done, except it be that of People v. Stanford, 77 Cal. 360, and that was a case of a private corporation. In that case it was expressly held that it would be different in the case of a municipal corporation; that in such a case “it would seem to be proper that a defendant claiming to be a city, .... and acting as such, should he made a party in an action to determine the validity thereof.” In People v. Riverside, 66 Cal. 288, the municipality was made a party, and held to be the proper party to the proceeding. In People v. Flint, 64 Cal. 49, a case of a private corporation, the question was, as here, whether there ever had been a legal incorporation, and the court expressly held that the pretended corporation must be made a party defendant. In Brooks v. Fischer, 79 Cal. 173, People v. Parks, 58 Cal. 624, and People v. La Rue, 67 Cal. 526, the question of corporate existence was incidentally involved, but in neither of them was any question made as to whether or not the proper parties were before the court. In People v. Plenshaw, 76 Cal. 436, and Ex parte Ah You, 82 Cal. 339, the question of corporate existence was not involved.

In this case, while nominally the proceeding is to oust the defendant, Gunn, from the office of mayor, it is apparent on the face of the complaint that the real object of the action is to determine the right of the city of San Diego to exercise the franchise of a municipal corporation under a freeholders’ charter, claimed to have been adopted by the people and approved by the legislature. The complaint attempts to make no case against the defendant, except as it is made through the alleged invalidity of such charter. This being its purpose, we are of opinion that the municipality was a proper and necessary party defendant to the proceeding, and hold that the demurrer was properly sustained on that ground.

This conclusion necessarily leads to an affirmance of the judgment of the court below, but as new proceedings may be instituted, making the city a party, we deem it proper to state our views on the second ground of the demurrer.

2. In order to show that the charter of 3889 never did become a valid law, and supersede the law under which the corporation theretofore existed, and consequently that the election of April, 1889, was illegal and void, the complaint alleges,—1. That instead of causing the board of freeholders to be elected by the qualified voters of said city, the city council caused them to be elected by only a portion of said qualified voters; that in calling the election therefor, a portion of the city containing a population of more than twelve hundred, including three hundred qualified voters, was omitted, and given no voice in said election; 2. That when such proposed charter was prepared, no copy or duplicate thereof was delivered or returned to the mayor, as required by the constitution; 3. That no copy of such charter was delivered or returned to the recorder of the county, as required by the constitution; 4. That said proposed charter was not published in two daily papers of general circulation, or in any daily or other paper, of said city for at least twenty days, as required by the constitution; 5. That the election for the adoption and ratification of said proposed charter was called and held less than thirty days after the completion of such publication, contrary to the requirements of the constitution.

■ It may be that none of these alleged defects exist in fact, but for the purposes of the demurrer these allegations must be taken as true. So taking them, the complaint very clearly states facts sufficient to constitute a cause of action, if brought against the proper party.

Responsive to this ground of demurrer, the respondent claims, first, that the alleged defects are insignificant and immaterial, and cites many authorities which, it is claimed, support that proposition. But the misfortune is, that they are not in point. They all relate to procedure under statutes held to be merely directory. In this case the procedure was under constitutional provisions expressly declared to be mandatory and prohibitory. Under such provisions the mode is the measure of .power. The acts required by the constitution to be performed are conditions precedent, and necessary to the validity of the legislation which it authorizes, whether that legislation be by the people of a municipality under article 11, or by the senate and assembly under article 4.

The city of Riverside attempted to incorporate under the general statute on that subject. With reference to it this court held that “ the right to enjoy and exercise the franchise of a municipal corporation depends on a compliance with the provisions of the statute which authorizes the organization of such corporations.” (People v. Riverside, 66 Cal. 291.) And this in discussing alleged omissions similar to and not more important than those alleged to have taken place in the present case. If this strict compliance is required with reference to the provisions of a statute passed by the legislature, around which are thrown none hut the ordinary safeguards of construction, — which in fact are to be construed liberally, for the accomplishment of the object and the promotion of justice, — how much more strict should be the compliance with the requirements of a constitution which on its face declares that all its provisions are mandatory and prohibitory, unless otherwise expressly provided? We are not at liberty to say that any constitutional prerequisite to the validity of a law is of no practical service, or to consider the policy of a provision when its language seems plain and positive. (Weill v. Kenfield, 54 Cal. 117.) The language of Judge Cooley in his work on Constitutional Limitations, page 78, quoted and adopted in State v. Rogers, 10 Nev. 253, is directly in point, and shows that, even in the absence of a clause making its provisions mandatory and prohibitory, the courts will not hold the provisions of a constitution to be directory or unessential, but will rather hold that wherever it prescribes a mode, that mode is the measure of power.

It is claimed by -respondent 'that- the question of whether or not these alleged defects exist, or the proceedings in the framing and adoption of the charter were regular, has been conclusively determined by the legislature in its preamble to the joint resolution of the two houses in approving the same; and authorities are cited which are claimed to support this contention. But in this case, as in the other, the authorities are not in point. They relate to matters of legislative discretion, and to cases where the legislature is authorized to pass laws only in certain contingencies,—such as acts for the creation of new counties, when the constitution provides that no county shall be created with less than a certain prescribed population, and the like. In such cases it has been held that the determination of the legislature upon the question of whether the contingency had happened which authorized the passage of the act was conclusive. And in all cases it may be said that, unless there is a constitutional inhibition, the determination of the legislature upon the question of the policy of the passage of an act is conclusive. But even in such cases the courts are not concluded from inquiring into the regularity and constitutional sufficiency of the mode adopted by the law-maker in the passage of the act.

In this case the legislature was not the law-maker; it did not frame or pass the law. It simply passed a resolution approving it. It was not charged with any duty, and to it was not delegated any power, either in framing or adopting the law. Its act was not the enactment of a statute. It was not called upon or authorized by the constitution to adjudicate upon the question of whether the law-makers—the municipal authorities and people of San Diego — had proceeded regularly in the framing and adoption or passage of the law or not. That was a judicial question, the determination of which belonged to the judicial department of the government, and to meet which the makers of the law — those upon whom the proceedings prescribed by the constitution devolved — were bound to proceed at their peril. The legislature knew nothing, and under the law could know nothing, of the charter until it was presented to the two houses, not for enactment, but for approval, by those upon whom the power and duty devolved of framing and adopting it. When so presented, it brought with it the presumption of regularity in what had gone before, and the legislature exercised, as to it, simply the same power which is delegated to the governor with reference to bills framed and passed by the legislature, ■—-that of approval or rejection. It had no more judicial power to inquire into and determine the regularity or sufficiency of the precedent steps in the history of the framing and adoption of the measure than the governor would have to question, inquire into, and adjudicate upon the history of a legislative bill when it came to him, duly certified, for his approval or rejection. The preamble neither added to nor detracted from the resolution of approval. The conditions precedent,, which are here alleged to. have been violated, were all acts to be performed by the law-maker not facts to be found by the bodies whose sole function was to approve or reject the law. It now remains for the courts to determine (since the matter is disputed), upon proof of the facts, whether these conditions were performed or not.

We are not prepared to say that the first of the objections above noted under this point would of itself be sufficient to defeat the charter, if all the other requirements of the constitution have been complied with. The appointment of freeholders may be likened to the selection of a committee to prepare and draught an instrument to be presented for the consideration and approval or rejection of the body making the appointment. The result of their labors is without force or value until, having been duly authenticated, and so hedged about as to protect it, in two separate places, from alteration or change, then accurately published in the manner and for the time required by the constitution, so as to give it the largest publicity, and bring it home to the attention of the people to be affected thereby, and, thirty full days after such publication, given to the people to digest the same and deliberate thereon, and then, at an election at which all the electors to be affected by its provisions are given an opportunity to vote, it has been approved by a majority of the electors voting at such election. Then, and not till then, has it been given such vitality as to entitle it to be presented to the legislature. If there approved by a majority vote of the members of each house, it then becomes the organic law of the municipality, “ superseding any existing charter and any amendments thereof, and all special laws inconsistent with said charter.” If all the- subsequent proceedings have been in conformity to the constitution, it may then be too late to attack the charter on the ground that provision had not been made for the opening of polls in a given precinct of the city, at the election of the freeholders who draughted the charter, especially if it be not shown (and it is not here contended) that the number of voters thus deprived of the opportunity to vote at that election was sufficient to have changed‘the result. Even then it is questionable whether the attack ought not to have been made before the submission of the charter, and in the form of proceedings to contest the validity of the election.

But the other points of objection to the validity of this charter are, in our judgment, if shown to be founded upon fact, vital, and for that reason the demurrer on this ground should have been overruled, and the defendant put to answer.

The demurrer being sustained, however, on the first ground, the judgment must be affirmed, and it is so ordered.

Beatty, C. J., and Paterson, J., concurred.

McFarland, J., concurring.

I concur in the judgment, an din all that is said in the opinion of Mr. Justice Fox, except in these particulars: 1. I think that the language of the opinion is too strong on the subject of strict compliance with the provisions of the constitution relating to freeholders’ charters. Because the constitution declares the provisions to be mandatory, it does not follow that a substantial compliance with them is not sufficient. The proceedings for the adoption of a charter will probably never be so literally perfect that a critical and hostile eye cannot detect in them some slight defect or irregularity, which ought not to be considered fatal. Whether or not there has been a sufficient compliance with the constitution in any particular case must depend on the particular facts of that case. In the case at bar some of the alleged failures in the proceedings are clearly immaterial. 2. As to the alleged failure to give certain citizens an opportunity to vote for the freeholders, I think that matter should stand upon the same footing as other elections; that is, that it should be shown that the votes of those excluded might have changed the result. In all other respects I concur in the opinion of Justice Fox.  