118 Cal. 391 | Cal. | 1897
Mandamus. the court below awarded a peremptory writ requiring the board of- trustees of San Luis Obispo to call an election on the question of disincorporating the municipality under the act (Stats. 1895, p. 115) to provide for the disincorporation of cities of the sixth class. It is contended bn appeal tbat plaintiffs complaint or affidavit—to wbicb defendant interposed a demurrer—did not make a case for the issuance of the writ.
Said act makes it the duty of the board of trustees to call an election for the purpose stated upon receiving a petition in that behalf signed by not less than one-fourtb of the qualified electors of the municipality; and it is objected that the petition presented to the board in tbis instance was ineffectual because it contained no representation that the subscribers thereto were qualified electors, but described them only as citizens of the city of San Luis Obispo. the objection cannot be sustained. It is shown by averment in the complaint that the petition was signed by the requisite number of qualified electors; and it was the fact of the receipt of such a petition wbicb under the statute imposed the obligation on the board to call an election; whether the names subscribed were those of electors was, of course, a matter for consideration by the board, and an affirmative allegation on the subject in the petition itself would neither preclude nor materially aid the inquiry.
It is contended by appellants that the complaint does not show the respondent to be a "party beneficially interested” within the meaning of section 1086 of the Code of Civil Procedure, and that, therefore, be has no standing to maintain this proceeding; and they rely for this contention upon the doctrine of Linden v. Alameda County, 45 Cal. 6. But in the Linden case the averment was merely that the petitioner was a qualified elector in the county; while in the ease at bar the averments are that the respondent is a resident and elector within said city, "and is the owner of real and personal property therein which is annually taxed for municipal purposes.” this distinguishes the case at bar from the Linden case, wbicb latter case is the only one to
The judgment appealed from is affirmed.