I dissent.
It is of course conceded, as a general proposition, that an ordinance proposed by the electors of a city under the initiative law must constitute such legislation as the legislative body has the power to enact. Conversely it is true that if the city council was without power to adopt the redistricting ordinance here involved it could not be compelled to do so through the medium of an initiative petition, and likewise would not be authorized to submit it to the electorate of the city for adoption. (Hurst v. City of Burlingame, 207 Cal. 134, 140-141 [277 P. 308].)
In the present case the majority discover an implication in the provisions of the Government Code relating to the districting of cities to the effect that such cities also have the power to redistrict their territory. (Gov. Code, §§ 34871 and 34876.) Those sections are contained in that part of the Government Code setting out the procedures and conditions under which a city of the sixth class may provide for the election of its legislative body by districts, either at the time of its incorporation or at a time after the city has functioned with a legislative body chosen at large. If it be true that those and other sections imply a power to redistrict, as held by the majority, then the mode and method prescribed by the Legislature for districting a city should be followed when redistricting is sought to be brought about. Such special procedures are in substance set forth in Government Code, section 34874, as follows: “If three-fourths of the qualified electors of the City vote in favor of the ordinance [to district a city then functioning with a legislative body chosen at large], at the expiration of the terms of office of the members *814of the legislative body or when a vacancy occurs, members of the legislative body shall be elected by districts.” However, redistricting the city as proposed by the ordinance in the present case would become valid and binding, if enacted under the initiative law, if “a majority of the voters . . . vote in its favor,” and it would “be considered as adopted upon the date that the vote is declared by the canvassing board, and shall go into effect ten days thereafter.” (Elec. Code, § 1715.) The discrepancies in procedure between the proposed method of redistricting and the one provided for in the Government Code are obvious and substantial. The initiative process does not accord applicable procedural safeguards afforded by the special legislation on the particular subject.
In Hurst v. City of Burlingame, supra, 207 Cal. 134, this court held invalid a zoning ordinance of the city of Burlingame enacted by initiative. Procedural provisions of the Zoning Act of 1917 (Stats. 1917, p. 1419) had not been complied with. The court stated at pages 140 and 141: “It is too clear for controversy that if the Board of Trustees of the City of Burlingame had adopted the ordinance in question without compliance with the requirements of the Zoning Act above outlined said ordinance would have been inoperative and void. It is equally clear that the infirmity would not be cured by the purported adoption of the ordinance by the electors of the City under the initiative law. . . . The Zoning Act is a special statute dealing with a particular subject and must be deemed to be controlling over the initiative, which is general in its scope.” The failure to comply with the districting provisions of the Government Code by the method through which the defendant city is sought to be redistrieted in the present case creates a situation which cannot be materially distinguished from that in the Hurst case, and there is no reason why the same principles of law should not apply.
There is another good reason why the city council was not required to submit the proposed ordinance to the electorate. The effect of the ordinance, if enacted either by the council or under the initiative process, would be to oust the incumbents from a portion of the districts they now represent, leave some areas with two councilmen and others with none, create confusion within the newly created districts as to the right of recall by electors therein, and reduce to an absurdity the residential requirements of both councilmen and electors. *815This would cast in doubt the validity of the status of the membership of the city council and any legislation or other official action of that body. It was never intended that an ordinance with the foregoing consequences could be passed by the council or be subject to the initiative process. In commenting on the scope of the reservation to the people of the power to enact legislation by initiative, it has been correctly stated that consideration must be given to the consequences of applying it to a particular act of legislation. Thus if it be found that the inevitable effect of direct legislation would be greatly to impair or wholly destroy the efficacy of some essential or indispensable governmental power, then in such case it is said that the courts may and should assume that the people intended no such result to flow from the application of those powers and that they do not so apply. (Chase v. Kalber, 28 Cal.App. 561, 569-570 [153 P. 397] ; 18 Cal.Jur. 946-947; see also Starbuck v. City of Fullerton, 34 Cal.App. 683 [186 P. 583].)
The city council properly refused to pass or to submit to the electorate a provision which, if enacted, would not constitute proper legislation (Hyde v. Wilde, 51 Cal.App. 82, 84 [196 P. 118]), and mandamus should not be invoked to compel the performance of an act when, as here, there is no duty to perform it. I would affirm the judgment.
EDMONDS, J.Admittedly, the Legislature has made no express provision for redistricting cities of the sixth class by an initiative measure, and to imply such a procedure, in my opinion, requires the court to reason from analogies which do not fit.
The conclusion that such a procedure is a proper one appears to be based upon this reasoning: (1) certain provisions of the Government Code permit the legislative body of the city to enact or submit to the voters measures relating to councilmanic districting; (2) as a general rule, the power to enact includes the power to amend or repeal legislation; (3) the initiative process includes those measures which the legislative body may enact.
I do not believe that a general power of redistricting properly may be implied from the limited situations provided for districting the city in the first instance. The situations relied upon as permitting districting are limited in number, and in each instance, a procedure is required which differs from that of the others. But in each case, the result is the *816same—the city is divided into conncilmanic districts. Accordingly, it is impossible to state, and the majority do not attempt to delineate, the exact basis and the proper procedure for implying a power to redistrict.
It seems clear that the fault lies not in the failure of the Legislature to indicate clearly a method of redistricting, but in its failure to provide for such a procedure at all. Rather than to attempt to create such a procedure by judicial legislation, it would be preferable for the court to await the action of the Legislature to enact a measure for redistricting with the procedural safeguards it may deem appropriate.
I would affirm the judgment.
Respondents’ petition for a rehearing was denied June 16, 1954. Shenk, Acting O. J., and Edmonds, J., were of the opinion that the petition should be granted.