222 P.2d 166 | Cal. Ct. App. | 1923
Petition for writ of mandate to compel respondent city clerk of the city of San Diego to certify and transmit to the Secretary of State copies of certain records and a statement of facts concerning a special election relating to a proposed consolidation of the city of East San Diego and the city of San Diego. The consolidation proceedings were in attempted compliance with an act to provide for consolidation of municipal corporations as adopted in the year 1913 and amended in the year 1917. (Stats. 1913, p. 577; Stats. 1917, p. 26.)
The petition herein sets forth proceedings conducted by the city of East San Diego and by the city of San Diego, primafacie sufficient to establish the conditions which, under the provisions of section 4 of said act, as amended in the year 1917, imposed upon the clerk of the city of San Diego the duty to make and certify and transmit to the Secretary of State the documents and statement demanded by petitioners herein. The law requires that the same shall be filed by the Secretary of State, and provides that from and after the date of the filing of said documents in the office of the Secretary of State "the annexation of such territory shall be deemed to be and shall be complete," etc. The petitioners are residents, electors, and taxpayers of the city of East San Diego.
Without formal notice of application for a peremptory writ, and without the issuance of an alternative writ, counsel for petitioners and for respondents, together with Mr. Sanders, one of the attorneys appearing here as amici curiae, severally waived notice and agreed on presentation of this matter to the court at a stated time. At that time respondents demurred to the petition on the ground that it does not state facts sufficient to constitute a cause of action or to entitle petitioners to any relief against respondents. At the same time Sloane Sloane, representing one Charles H. *500 Harris, a resident and taxpayer of the city of East San Diego, asked leave to file a petition for intervention by said Harris and requested that he be allowed to intervene in this proceeding. The petition proposed for filing sets forth the pendency in the superior court of San Diego County of a quowarranto action wherein People of the State ex rel. Charles H. Harris are plaintiffs and the city of East San Diego and the city of San Diego are defendants. Petitioner Harris in said proposed complaint in intervention sets forth facts upon which he contends that the granting of the writ of mandate in this proceeding will injuriously affect and damage the said Harris and prevent the relief prayed for in said quo warranto action. The court announced that the application for leave to intervene would be submitted, for decision at this time.
[1] Section
[2] We may assume it to be true that (as contended by counsel for Mr. Harris), upon completion of the consolidation proceedings, if the same are valid, all property within the present city of East San Diego, equally with all property within the present city of San Diego, will be subject to taxation to obtain funds with which to meet certain outstanding municipal bonds of the city of San Diego as they become due. But those bonds are not a lien upon private property, although they may at some time lead to the creation of a tax lien. The completion of the annexation proceedings will not create any lien upon the property of Mr. Harris. Therefore, we are of the opinion that the proposed intervener can lose nothing by the direct legal operation or effect of a judgment granting the writ of mandate demanded in this proceeding. *501
Moreover, it does not appear that there exists any collusion or fraud whereby the respondents are failing to defend against the granting of the writ demanded. It being conceded that they are acting in good faith, they are not bound to interpose objections which they may think cannot be sustained, even though others in the situation of Mr. Harris or his counsel may be of a different opinion.
For the foregoing reasons the application for leave to file the proposed petition in intervention is denied. It was understood, however, that in the event of denial of the proposed intervention, the argument presented by counsel for Mr. Harris against the granting of a writ of mandate would be considered as an argument presented by counsel as amici curiae. That argument will be thus considered by the court in disposing of this case.
The petition for writ of mandate in the paragraph thereof showing reasons for making the application to this court and not to the superior court of the county of San Diego, states that in an action entitled Tocque v. The City of San Diego etal., now pending in said superior court, a judge of that court, without jurisdiction and contrary to the provisions of subdivision 4 of section
We think that our conclusion on this question is in accordance with the law as set forth in People v. Board ofSupervisors,
The demurrer to the petition herein is overruled. There being no further answer the relief demanded should be granted.
Let the peremptory writ issue.
Houser, J., and Curtis, J., concurred. *503