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Law School Case Brief

Ault v. Council of San Rafael - 17 Cal. 2d 415, 110 P.2d 379 (1941)


The granting of a writ of mandate is discretionary and it will be granted only where necessary to protect a substantial right and only when it is shown that some substantial damage will be suffered by the petitioner if said writ is denied. It therefore follows that a petitioner upon application must show that as a result of a failure to grant such writ, he will suffer some substantial damage.


Petitioner, as a registered elector of the City of San Rafael, filed his application for a writ of mandamus to compel respondents to publish a proposed amendment to the city charter, and to call a special election thereon not less than 40 nor more than 60 days thereafter. An alternative writ of mandate has been heretofore issued; a return filed by respondents; and the cause argued orally by counsel for the respective parties.

The elector alleged that a petition requesting the city council to submit to city voters a proposed amendment to the city charter was circulated and signed by more than 15 per cent of the registered electors; that the petition was filed with the city clerk on December 4, 1940, along with a request to publish the same within 15 days thereafter and to hold a special election thereon within 40 to 60 days. The elector alleged that no publication was made within 15 days from the date of filing nor was a special election called within 75 days following the December 4th filing.

Petitioner contended that failure to publish and call a special election within 75 days was in direct violation of article XI, section 8, of the state Constitution. The provisions therein, it is argued, make it obligatory, on the part of the city council, to so act within the period above designated. Petitioner sought a writ of mandate to order the council to publish immediately and call a special election within 40 to 60 days.

Respondent city council admitted the filing of the petition and its refusal to publish and call a special election within 75 days, but alleged that a resolution was adopted at its meeting on February 3, 1941, wherein it ordered that publication of the petition for the proposed amendment be made on February 20, 1941, and that an election be held thereon on April 14, 1941; the latter date being the date fixed for the holding of a general municipal election of the city. Petitioner admitted during oral argument that it was the intention of respondents to submit the proposed amendment at the city's next general election, as ordered by the city council in the February 3, 1941 resolution.

Respondents denied violating article XI, section 8, of the state Constitution, and maintained that under its provisions it was discretionary with the council to submit said proposed amendment either at a special election to be called after publication of the proposed amendment or at the general election.


Was the elector entitled to the issuance of a writ of mandate to compel the city council to publish the proposed amendment to the city charter and hold a special election pursuant to article XI, section 8 of the state Constitution?




The court denied the petition and reasoned that the elector was asking the court to issue its writ of mandate directing the city council to publish immediately the proposed amendment, and within not less than 40 nor more than 60 days thereafter to call a special election on the proposed amendment even though a general election was to be held only 12 days after the earliest possible special election date. The court found that the elector had failed to show how he, as a taxpayer, would have been injured in any way by the short delay between the earliest date of a special election and the general election.

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