Norlund

*674 Opinion

This proceeding in mandamus presents an issue not passed upon to date—is the resolution of a city council ordering annexation of uninhabited territory subject to referendum by the voters of the annexing city? The strongest argument advanced by the City of Napa against this right of referendum is that annexation of territory by a city is a matter of statewide concern and that the Legislature has specifically delegated the annexation power to the legislative bodies of the cities, thus excluding any right of the city electorate. We cannot accept that argument.

On August 7, 1972, the City Council of Napa adopted Resolution 6076, approving annexation of some 99 acres known as the Longwood Ranch. Only two days later, certified copy of the resolution was filed by the Secretary of State and certificate of filing issued. On September 5, 1972, petitioner here and others (an alleged total of 4,111) filed a petition seeking submission of the annexation resolution to vote of the people of the city in a referendum. The city council, also on September 5, refused to file the referendum petition. Petition for writ of mandate, filed October 5, .sought to compel the city clerk to…

I dissent.

This annexation was pursuant to the Annexation of Uninhabited Territory Act of 1939 (Gov. Code, § 35300 et seq.); “uninhabited territory” being territory in which fewer than 12 registered voters reside. (Gov. Code, § 35303.) Petitioner is not challenging the procedure by which the city council approved Resolution No. 6076, the annexation resolution, but seeks only to have the resolution submitted to a referendum vote. The city council, however, rejected the referendum petition on the basis of the city attorney’s advice that Resolution No. 6076 was not a proper subject for referendum.

Article IV, section 1 of the Constitution of California provides “[t]he legislative power of this State is vested in the California Legislature which consists of the Senate and Assembly, but the people reserve to themselves the power of initative and referendum.” The power of initiative and referendum, thus, is a power reserved to the people, not a granted power. (Ley v. Dominguez, 212 Cal. 587, 593 [ 299 P. 713 ].) Such legislative powers will be liberally construed to uphold the power wherever reasonable. (Collins v. City & Co. of S. F., 112 Cal.App.2d 719 [ 247 P.2d 362 ].) There are,…

William R. Mackey and Heller, Ehrman, White & McAuliffe for Real Party in Interest.

OPINION

DRAPER, P.J.

This proceeding in mandamus presents an issue not passed upon to date — is the resolution of a city council ordering annexation of uninhabited territory subject to referendum by the voters of the annexing city? The strongest argument advanced by the City of Napa against this right of referendum is that annexation of territory by a city is a matter of statewide concern and that the Legislature has specifically delegated the annexation power to the legislative bodies of the cities, thus excluding any right of the city electorate. We cannot accept that argument.

On August 7, 1972, the City Council of Napa adopted Resolution 6076, approving annexation of some 99 acres known as the Longwood Ranch. Only two days later, certified copy of the resolution was filed by the Secretary of State and certificate of filing issued. On September 5, 1972, petitioner here and others (an alleged total of 4,111) filed a petition seeking submission of the annexation resolution to vote of the people of the city in a referendum. The city council, also on September 5, refused to file the referendum…