221 P. 207 | Cal. | 1923
This is an action of quo warranto commenced in the superior court of Los Angeles County by the attorney-general upon the relation of Walter P. Temple, to determine the validity of the proceeding leading to the incorporation of the city of Montebello as a city of the sixth class, under the Municipal Corporation Act of 1883 (Stats. 1883, p. 93). After decision rendered in favor of defendants, judgment was entered that plaintiff "take nothing by this action." From this judgment plaintiff appeals.
The plaintiff contends that the incorporation order is illegal and void, basing its contention upon the single ground that the published notice of the hearing of the petition for *490 the incorporation not being signed, was legally insufficient to vest the board of supervisors with jurisdiction to hear the petition. The defendants' position is, (1) that the published notice shows on its face that it was given by the petitioners, and fully complies with the Municipal Corporation Act,supra; (2) that the proceeding for the incorporation of a city of the sixth class is a legislative act, therefore the jurisdiction of the board of supervisors is not open to attack in a quo warranto action.
Section 2 of the Municipal Corporation Act, supra, as amended, provided that the incorporation proceedings shall be initiated in the following manner:
"A petition shall first be presented to the board of supervisors of such county, signed by at least fifty of the qualified electors of the county, residents within the limits of such proposed corporation, and the affidavit of three qualified electors residing within the proposed limits, filed with the petition, shall be prima facie evidence of the requisite number of signers. The petition shall set forth and particularly describe the proposed boundaries of such corporation, and state the number of inhabitants therein, as nearly as may be, and shall pray that the same may be incorporated under the provisions of this Act. Such petition shall be presented at a regular meeting of such board, and shall be published for at least two weeks before the time at which the same is to be presented, in some newspaper printed and published in such county, together with a notice stating the time of the meeting at which the same will be presented. . . ." (Stats. 1889, p. 371.)
Plaintiff alleges in its complaint that late in August and early in September, 1920, there was published in the "Montebello News," a newspaper of general circulation in the county of Los Angeles, the following notice:
There was also published, together with and following said notice, a petition in the following terms: *491
"We, the undersigned petitioners, respectfully represent that we are qualified electors of the county of Los Angeles, state of California, and reside within the limits of the hereinafter proposed municipal corporation. . . ." (Here follows the names of said petitioners.)
On the day designated in the notice the petition was presented to the board. Thereupon, and after an election had been held, in which 401 out of the 473 electors of Montebello had voted in favor of incorporation, such proceedings were had, that, on the 11th of October following, by an order entered upon its minutes, the board declared said territory to be a municipal corporation of the sixth class, under the name of Montebello. A certified copy of this order was filed in the office of the Secretary of State; and from that time on the city of Montebello has exercised all the functions of a municipal corporation.
[1] We are of the opinion that the published notice was sufficient, and that consequently the record shows a compliance with the statute. To sustain its contention that the notice was insufficient the plaintiff relies chiefly upon the case ofIn re Central Irr. Dist.,
In the present case the notice comes first (while in In reCentral Irr. Dist., supra, it came last) and reads: "Notice is hereby given by the undersigned. . . ." Following this is printed the petition, beginning with the words, "We, the undersigned petitioners, respectfully represent . . .," and at the end of the publication appear the signatures of the petitioners. Surely, this notice could mislead no one. It gave full and detailed information in regard to the time and place at which the petition would be presented to the board of supervisors. No one could believe that the newspaper was publishing this formal document, separated from the rest of the contents of the newspaper by a heavy black line, and covering over ten pages of the printed manuscript, as a bit of news. In brief, as this notice showed upon its face that it was given by the petitioners, the only persons authorized to give such notice, it was sufficient to warn all persons who might desire so to do, to present their objections at the time and place named, why the petition should not be granted. And, as was said by this court in Imperial Water Co. v. Supervisors,
In Ahern v. Board of Directors,
We have taken some pains to distinguish the present case fromIn re Central Irr. Dist., supra, but we are of the opinion that a later case, Fogg v. Perris Irr. Dist.,
Under the view which we take of this case it is unnecessary to discuss any other points raised in the briefs.
For the reasons which we have above indicated, the judgment of the superior court of Los Angeles County, declaring the city of Montebello to be a de jure and a de facto municipal corporation, should be, and it is hereby, affirmed.
Wilbur, C. J., Myers, J., Seawell, J., Lawlor, J., and Lennon, J., concurred.