182 P. 324 | Cal. Ct. App. | 1919
The plaintiff made application to the superior court of Ventura County for a writ of review directed to certain proceedings whereby the board of supervisors of that county attempted to create a certain protection district known as "Sespe Protection District of Ventura County." The defendants demurred to the petition and moved for dismissal of the action. The demurrer was based upon the ground that the petition did not state facts sufficient to constitute a cause of action, and that the plaintiff did not have legal capacity to sue. The motion was made upon the ground that the petitioner "has not legal capacity to sue, in this, that plaintiff is an individual and is attacking the validity of a public orquasi-public corporation, and that the legal existence of same cannot be questioned by a private individual on certiorari, but only *193 by the state of California on quo warranto proceedings." The motion was made upon the petition and upon an affidavit setting forth various proceedings had in performing the work of the supposed Sespe Protection District during the two years intervening after the district was declared to be formed and before the commencement of this action. The court sustained the demurrer without leave to amend and granted defendants' motion to dismiss and accordingly entered judgment of dismissal. The plaintiff appeals from the judgment.
The petition shows that the only petition filed before the board of supervisors was a petition signed by more than ten owners of land in a certain district in that petition described, asking for the formation of a stormwater district in conformity with a certain act approved March 13, 1909, (Stats. 1909, p. 339), amended June 6, 1913, (Stats. 1913, p. 504). That petition was presented to the board of supervisors on April 7, 1916. Thereupon, on the same day, the board of supervisors passed a resolution of intention reciting that a petition had been presented praying for the formation of a protection district in accordance with an act of the legislature approved March 27, 1895, and acts amendatory thereto, and thereupon the board by resolution declared its intention to form a protection district under said act of 1895 (Stats. 1895, p. 248 et seq.), which act has been amended at several subsequent sessions of the legislature. (Stats. 1897, p. 219; Stats. 1903, p. 328; Stats. 1909, p. 809; Stats. 1911, p. 446; Stats. 1915, p. 1493; Stats. 1917, p. 1219.) The law requires that the board by its resolution of intention shall fix a time and place for the hearing of the matter, not less than thirty days after the passage of the resolution. It is only after such notice and hearing, and due disposition of the objections, if any are made, that the board may declare the protection district formed. In this case the petition shows that in its resolution of intention the board, in fixing a time for the hearing, named a day only twenty-eight days subsequent to the passage of the resolution, and the notice was given for that day.
It is apparent that if the plaintiff is entitled to maintain a proceeding of this nature, the demurrer to his petition should have been overruled, since it states facts showing that *194 the board of supervisors did exceed its jurisdiction in determining that the petition which had been filed was a petition under the Protection District Act of 1895, and further exceeded its jurisdiction by naming for the hearing of the matter a day prior to any time within which, under the statute, the matter could be brought to a hearing.
Respondents contend that upon the showing made by them the Sespe Protection District is a de facto corporation and that its right to exist can only be determined by proceedings in the nature of quo warranto, which proceedings must be brought by the attorney-general in the name of the people of the state. In making this contention respondents must depend upon the provisions of section
The judgment is reversed.
Shaw, J., and James, J., concurred. *195