276 P. 120 | Cal. Ct. App. | 1929
THE COURT.
A proceeding in mandamus to compel respondents above named to call a special election in the city *566 of Albany for the purpose of determining whether that city shall be consolidated with the city of Berkeley. The two cities are contiguous, the city of Berkeley having the greater population and the larger number of electors.
Section 2 of the Municipal Consolidation Act of 1913 (Stats. 1913, p. 577), provides as follows: "Whenever a petition signed by not less than one-fourth in number of the qualified electors of any municipal corporation, as shown by the registration of electors of the county in which such municipal corporation is situated, is filed with the legislative body thereof asking that such municipal corporation and another municipal corporation contiguous thereto, designated in such petition and having a greater population, be consolidated, such legislative body must without delay call a special election and submit to the electors of such municipal corporation the question whether such municipal corporation shall be consolidated . . ." It is admitted that on October 1, 1928, there was filed and presented to respondents at their regular meeting a petition, purporting to be signed by 1,557 qualified electors of the municipality, requesting respondents to call a special election and submit to the electors the above question. While the statute requires no action by the city clerk nor any certificate by him as to its sufficiency (Hirons v. Clare,
[1] Neither the Consolidation Act of 1909 (Stats. 1909, p. 282), nor the Act of 1913 (Stats. 1913, p. 577) requires the affidavits of those who circulate the petition to be attached, and the petition filed with respondents sufficiently shows that petitioner was proceeding under the latter act.
[2] The verified petition in the present proceeding alleged that the election petition was in fact signed by over one-fourth of the qualified electors of the municipality. This allegation was met by a general denial by respondents, which was insufficient to put the matter in issue (Hirons v. Clare,supra); but this court notwithstanding caused the petition to be referred to the superior court of Alameda County for determination, and according to its findings the petition was signed by more than one-fourth of such electors within two weeks preceding its presentation to the board. It is not claimed by petitioner that the signatures of 1,211 signers referred to in the clerk's statement were dated by them. It, however, appears that dates were affixed thereto, but by whom is not shown. In passing upon the sufficiency of such a petition with respect to the number of qualified electors who have signed the same the statute expressly limits the source of information "to the registration of electors of the county in which such municipal corporation is situated" (Stats. 1913, p. 578, sec. 2); and in determining the question the council acts in a ministerial capacity (Wolfskill v. City Council, supra). [3] Here, as in other cases, where the duty is ministerial, the obligation to call the election depended upon the determination of prerequisite facts; but where such facts exist and are established by sufficient proof the duty is mandatory and its performance may be compelled (Tulare Water Co. v. State Water Com.,
It is contended that it inferentially appears from certain letters written by the clerk to the attorneys for the petitioner, and which were set forth in his petition to this court, that the former did in fact ascertain from the registration records that the election petition was signed by the requisite number of qualified electors, and that having done so the board was not justified in refusing to act thereon. But whatever may have been the facts known to the clerk, so far as shown, he did not so certify to the board. The question here presented is, what did the petition with the statement made by the clerk as to its sufficiency show to respondents; and we are to determine whether the writ should issue by a consideration of the situation as presented to them (Chambers v. Glenn-Colusa Irr. Dist.,supra). *569 [5] In view of the foregoing we feel bound to hold that the petition did not substantially comply with the requirements of the statute, and that it was consequently not the duty of the respondents to act thereon.
The writ is denied.
A petition for a rehearing of this cause was denied by the District Court of Appeal on April 13, 1929.