I dissent. None of the constitutional questions affecting the validity of the recall amendment to the Los Angeles charter are decided by the court, and I shall not discuss them. But assuming, as the court does for the purposes of the decision, that the amendment is valid, I wish merely to point out what I deem to be the error in the conclusion of the court from its own premises. It is held to be essential to the jurisdiction of the council to order an election that the petition of the electors shall be accompanied by a certificate of the clerk that the petition is sufficient, and *Page 515 that this certificate must show that it is based upon a comparison of the signatures with the entries in the great register (meaning thereby, in this instance, the completed great register of 1902, and ignoring the nearly completed great register of 1904). I do not concur in this view; but conceding for the present that it is correct, it is plain to my mind that the clerk's certificate, even on the view of the court is in full compliance with the charter. It is quoted in the opinion of the court, and the criticism upon it is that the first part of it is ambiguous, but that the subsequent clause shows what the clerk did. I think, on the contrary, that nothing could be clearer, more direct, or unequivocal than the first part of the certificate down to and including the words "and I hereby certify that the amended petition is sufficient." So far it is in exact and literal compliance with the charter, and contains everything that the charter requires. There is no ambiguity and no deficiency. It shows, that is to say, that he has examined the great register and from that ascertained that the petition is signed by the requisite number of electors entitled to vote for the successor, etc. Where is the ambiguity to which the court refers? I certainly can discover none, and, unless the following clause contains something inconsistent or contradictory, it may and must be treated as mere surplusage. I am equally unable to discover the assumed inconsistency or contradiction. All that appears from the last clause is, that the names were compared with the original and duplicate affidavits of registration — a statement not in the slightest degree inconsistent with the first part of the certificate. For every name on the great register there is a corresponding affidavit on file, and a statement that such affidavits have been compared does not on any known principle of construction invalidate a certificate that the register has been examined. Both statements may be entirely and literally true, and if the first satisfies the law the latter is merely superfluous and harmless. If this view is correct, the certificate was sufficient on its face, and as against this collateral attack upon the order of the council that is conclusive in favor of the jurisdiction. It is of no consequence what may be alleged to the contrary in the pleadings, or stipulated by the parties, or stated in the briefs. If the certificate was sufficient on its face, the jurisdiction of the board cannot be assailed. If the *Page 516 record shows jurisdiction, it cannot be impeached by allegation or proof aliunde. For these reasons it seems clear to me that the opinion of the court fails to sustain itself on the purely technical grounds upon which it is rested.
I am also of the opinion that if the clerk's certificate could be construed to mean what it is held to mean, and what is said to be the fact, — viz., that he did not find the requisite number of names of petitioners on the completed great register, and could only find them by resorting to the affidavits of registration from which the register of 1904 was to be made up, — the council still had jurisdiction to order the election. The sole qualification of a petitioner is the right to vote for a successor to the incumbent whose removal is demanded, and the council derives its jurisdiction to order the election from the filing of a petition by the requisite number of electors so qualified. This petition must, it is true, go first to the clerk, who before he submits it to the council must satisfy himself that it is sufficient. But his decision upon its sufficiency is not final or binding upon the council, and only determines whether it shall be submitted for their consideration, for when so submitted they are empowered, and it is therefore their duty, to determine for themselves whether it is sufficient. (Stats. 1903, p. 575.) If this is what the statute means (and it is the construction for which petitioner contends), the clerk's certificate would seem to be of very little practical consequence as affecting the jurisdiction.
But conceding that the clerk's certificate is essential, and that it must show that he has found the requisite number of names on "the great register," the important question remains: What is the great register to which this charter provision refers? On the first day of January of every even-numbered year the clerk or registrar commences the registration of voters for the ensuing general election, and the work of registration goes on continuously until forty days previous to such election. The great register for that year is then completed, and after the general election in November becomes functus officio except for the purpose of determining the right to vote at ensuing local or special elections occurring prior to the close of registration in the next even-numbered year. In case of any such election inscription in this old register secures to the elector the right to vote although a new registration *Page 517 may be in progress and he may not have registered again. (People v. Worswick, 142 Cal. 71.) But an elector whose name is not on the old register is also entitled to vote if he has complied with the Registration Law by filing the proper affidavit, and this right to vote is unaffected by the failure of the clerk — if he has failed — to perform the simple and imperative clerical duty of entering his name in a book of registration. In legal contemplation his name is on the great register when he has complied with the law by doing everything he could do, and when in due performance of official duty it ought to be there. Especially is this so in view of the fact that no delay in inscribing his name in the register affects or impairs his right to vote, or the legality of his vote when cast. His ballot must be received by the election officers if his name is on the precinct register, and the file of affidavits constitutes the precinct register, which is all sufficient for the purposes of the election whether the substance of the affidavits has been transcribed in the great register or not.
In view of these conditions it must be assumed that the freeholders of Los Angeles and the members of the legislature in adopting and ratifying this recall amendment to the charter foresaw, and intended to provide for, the contingency out of which this controversy has arisen; the contingency, that is to say, of a recall petition being filed at a time when the right of some electors to vote for a successor to the incumbent would be shown by the old great register completed in a former year, and the right of others to vote could only be shown by reference to the incomplete great register of the current year. What, then, did they mean by directing the clerk to examine the great register for the purpose of determining the sufficiency of the petition? Did they mean that he was to confine his examination to a book which would afford only partial information, and would not disclose the names of all electors entitled to vote, or that he was to examine everything answering to the description of great register from which the requisite information could be obtained? The sole object of the examination being the ascertainment of the number of qualified electors signing the petition, it is my opinion that not only the old register but the new register was intended and that it was the right and duty of the clerk to take account not only of the names actually inscribed in the new register, *Page 518 but of every name which legally and of right should be there. This is the liberal and beneficial construction which is justly applied to all laws affecting the elective franchise. I do not think we are called upon or justified in construing the law in any other spirit. The people of Los Angeles have chosen to make an experiment in municipal government by applying to municipal business a principle and a practice which obtains universally in the conduct of private business. They propose to appoint their agents not absolutely for a fixed term, but for a term of two years subject to the condition that their authority may be revoked whenever they have forfeited public confidence by any failure of diligence or lack of capacity in dealing with the matters confided to their discretion.
The success or failure of this experiment is exclusively the affair of the people who have chosen to make it, and if it is not an infringement of the constitution it is the business of the courts to let it have a fair trial. It may prove a wise departure, or the reverse. If found to involve evil consequences, no doubt it will be repealed; but in the mean time its policy or impolicy is a question with which the courts are not concerned.