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<br />
<br />In Re
<br />Petitions
<br />Freedom of Choice
<br />
<br />The Clerk stated that she had requested the City Attorney to furnish a
<br />written opinion a~ to the legality of the petitions requesting the
<br />City Council to submit to the voters the following entitled initiative
<br />measure:
<br />
<br /> "Petition requesting the City Council of the City of Santa
<br /> Ara to submit to the voters a proposition for the adoption
<br /> of an Ordinance to provide that businessmen, property owners
<br /> and employers residing within the corporate limits of the
<br /> City of Santa Ara shall have the right to choose their own
<br /> guests, patrons, tenants, neighbors and employees."
<br />
<br />The Clerk also stated that an affidavit of publication to circulate
<br />
<br />petitions had not bee~ filed in the office within ten days after such
<br />
<br />publication. On advice of the City Attorney, and on motion of
<br />Trustee Dahl, seconded by McBride and carried, the Clerk was instructe~
<br />not to check the names app'earlng on the petitions and not to place theii
<br />
<br />measure on the ballot in the forthcoming City election on the g~ounds ~,
<br />that it is not proper legislation within the meaning of the initiative!'
<br />
<br />and referendum statutes and laws of the State of California.
<br />
<br />A written opinion from the City Attorney, dated January 6, 1953, was
<br />filed in the Clerk's Office on January 7, 1953 and is quoted in full:
<br />
<br />"In furtherance and confirmation of the discussion had with you yesterday during the Council meet-
<br />lng and in response to the request for a written opinion regarding the matter herein discussed, I
<br />submit the following:
<br />The factual ~ackground is as follows: On July 17, 1952 notice of intention to circulate a
<br />petition with the accompanying statement required was published in the Santa Ara Register; on
<br />December 23, 1952 proponents of the initiative ordinance offered petitions bearing signatures to
<br />the City Clerk for filing; these abe declined to file because she had no affidavit ef publication
<br />.which, by Section 1705 of the Election Code, is required as fellows: "Within 10 days after the
<br />date of publication cf notice, the proponents shall file a copy of the notice, accompanying state-
<br />ment and an affidavit of publication#*# with the City Clerk." Section 15 of the Election Code
<br />states: "Shall is mandatory and may is permissive." The signed petitions were left in the
<br />Clerk's office; on December 24,~ 1952 the proponents filed the affidavit of publieatlon and one
<br />petition with the City Clerk.
<br />Based On the language of the Sections herein referred to, this is a defect in the preliminary
<br />steps of attempting to get this initiative ordinance presented to the voters. The filing of the
<br />affidavit creates a public record in the office of the City Clerk and is notice to the whole City,i!
<br />in addition to the published notice, that petitions will be circulated and signers solicited.
<br />This step was not complied with. Had it been, under the Oode the Clerk would have had 10 days
<br />in which to verify the names to determine whether or not a sufficient number of signatures had
<br />been obtained. On about the 26th of December, 1952, the 0ity Clerk discussed this matter with
<br />me and I suggested to her that no check of signatures be made until after the Council meeting on
<br />Monday, the 5th of January, 1953, to allow an opportunity to present the whole question to the
<br />0ouncil. This I did yesterday, outlining the factual background as set out hereinabove.
<br />I further stated to your Honorable Body that I had been informed that if an attempt were made to
<br />place this measure on the ballot, a writ of mandate would be sought to prevent our doing so; that
<br />if no action were taken to place the matter on the ballot, there would be cou~t action seeking to
<br />compel the City to do so.
<br />The provisions of the initiative by Sections a~e briefly as follows:
<br />Section 1 provides that the right to employ or not to employ other persons in free discretion "
<br />shall not be abridged and declares organized laborts right to contract and bargain collectively.
<br />This, I believe, is a restatement or a brief snmmation of rights as they exist in California today~
<br />Section 2 provides that the right of owners ofproperty to contract among themselves or Join an
<br />association for establishing regulations, restrictions, and prohibitions concerning use and
<br />occupancy of housing accommodations, shall not be abridged; that the majority of them may agree
<br />in writing to let any person occupy housing accommodations and such right shall not be abridged
<br />by law or contract to prevent giving consent solely becaus~ of race, color, nationality, er
<br />religion. This Section may be in conflict with the Fourteenth Amendment to the Constitution of
<br />the United States as recently Intex-preted by the Supreme Court. If it is not, then it would.
<br />appear to be meaningless.
<br />Section 3 states that ~he concensus of opinion of the voters.is that owners and operators of
<br />places of public accommodation where eating, drinking, dancing, or living under the same r6of
<br />together shall have the right to choose their own guests, patrons, and tenants and this right
<br />shall not be abridged. This Section is not legislative since it merely expresses an opinion
<br />which opinion is in conflict with provisions of the Penal and Civil Codes. The material of this
<br />Section is a proper subject of petition which is a right reserved to the people but ia in no sensel!
<br />legislative in nature and it is my opinion.that it is not properly a part of any ordinance.
<br />Section 4 contains provisions on severabllity, stating that if any Section be declared
<br />unconstitutional, this shall not affect the validity of other Sections.
<br />Section ~ provides that the provisions shall be self-executlng.
<br />Section6 provides that all ordinances in conflict are repealed to the extent of the conflict.
<br />In my opinion this Section is surplusage since ! do not know of any Ordinance of the City of Santa:
<br />Aha that is in conflict with any of the provisions of said proposed initiative ordinance.
<br />Section 7 provides that after two years, the Oouncil may amend or repeal any of the provisions of
<br />the proposed initiative or~tlnance.
<br />The right of initiative is a reservation to the people, of legislative power equal to that grante~~
<br />to the City Council. The right is limited to the same extent that the City Council's right to
<br />legislate is limited. The right can apply only to matters that are legislative in nature.
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