269 P. 757 | Cal. Ct. App. | 1928
The petitioner has moved for a peremptory writ of mandate upon a petition which he has filed alleging that the respondent, as city clerk of the city of Oakland, has arbitrarily, and through coercion on the part of his superiors, fraudulently refused to certify as sufficient a petition filed with him asking for an election to vote upon the question of the recall of C.C. Young, one of the commissioners of said city. The respondent has filed a demurrer and answer at the same time and the cause has been submitted on briefs.
In support of the demurrer the respondent argues that his action in rejecting the petition, no matter how arbitrary or fraudulent it may be, is conclusive and cannot be controlled by court action. In support of this argument he cites a former decision of this court — Fraser v. Cummings,
[1] It is the duty of the city clerk to examine the individual certificates for the purpose of ascertaining whether they comply with the requirements of the charter, and if a sufficient number of valid certificates are filed, he must certify that fact to the council and the election must then be called. (Ratto v. Board of Trustees,
[2] The duty of the clerk is not judicial (Wright v.Engram,
[4] It is unnecessary to discuss the petition further. It states a cause of action and the demurrer must be overruled. The answer denies certain material allegations of the petition, and, though in many instances these denials are in conflict with public records prepared by the same respondent, we deem it proper to order a reference in order that findings may be had and the proceedings finally determined. It is therefore ordered that the matter of ascertaining the truth of the allegations of fact hereinafter detailed be referred to Judge J.T.B. Warne to after detailed be referred to Judge J.T.B. Warne to take evidence and make findings thereon, at such time and place as he may direct, and to transmit his findings to this court for further proceedings. The questions of fact thus referred are: The number of individual certificates, if any, wrongfully rejected by the respondent under the separate headings specified in paragraph XIX of the petition, and the total number of valid certificates filed with the respondent in addition to those certified as valid by him, as admitted in the pleadings, and the total number of withdrawals thereof. It is further ordered that said referee take such evidence as may be offered upon the issue pleaded that respondent's rejection of any of said certificates was wrongful, arbitrary, or fraudulent, and that all the evidence on that issue be transmitted to this court for further proceedings.
Pending the report of said referee, and until the further order of this court, the submission of all other matters *369 connected with this proceeding is set aside. The clerk of this court is directed to transmit to said referee a certified copy of this order.
Warne, P.J., pro tem., and Sturtevant, J., concurred.