157 P. 830 | Cal. Ct. App. | 1916
In this proceeding the plaintiff, an elector of the city of Oceanside, asks for a writ of prohibition directing that the defendants refrain from proceeding to enter judgment on the merits in a certain election contest, and from taking any further steps concerning said contest save and except to dismiss that proceeding.
On the fourteenth day of October, 1915, in the city of Oceanside, a city of the sixth class, an election was held to *257 vote upon the question whether the sale of alcoholic liquors should be licensed in that city. This election was held pursuant to the provisions of a statute enacted in 1911 (Stats. 1911, p. 599), to provide for the regulation of the traffic in alcoholic liquors by establishing local option. On October 19th, the returns of that election were duly canvassed by the board of trustees of the city, who declared the result to be 217 votes against and 221 votes in favor of licensing such sales. On November 6, 1915, one C. G. Borden, an elector of the city, filed in the superior court of the county of San Diego a complaint in a proceeding entitled, "In the Matter of the Election held in the City of Oceanside, County of San Diego, State of California, on the 14th day of October, 1915, in pursuance of that certain act of the legislature of the State of California known as the 'Wyllie Local Option Act,' " for the purpose of contesting the election upon certain stated grounds of contest; praying for a recount of the ballots and for judgment that the result of the election was not in favor of license, "and that the said board of trustees of said city of Oceanside be ordered to make an entry in its records declaring that the said city of Oceanside is no-license territory." On November 16, 1915, an order was made for a special session of the superior court to be held on the third day of December for the purpose of hearing said election contest. No citation was then issued to any defendant or respondent in that case (none being named in the complaint); but a direction was incorporated in the order that a copy thereof be published in two successive issues of a designated weekly newspaper published in the city of Oceanside; and that publication was made in accordance with the order. On December 3d the court continued the hearing of the contest until December 6th, and on December 4th caused to be issued a citation directed to David Rorick, president of the board of trustees of the city of Oceanside, citing him to appear before the court on December 6th to show cause, if any he had, why contestant should not be granted judgment as prayed for in his petition of contest. The citation was duly served upon Rorick on December 4th, and at the hearing on December 6th Rorick filed an answer protesting that the court had no jurisdiction for any purpose in that case. The court having overruled all objections to its jurisdiction, proceeded to hear the evidence in the matter of said election contest, and will *258 proceed to enter judgment thereon unless prevented by means of the writ demanded in this proceeding.
The petitioner claims that the superior court is without jurisdiction in the case brought before it; that such jurisdiction does not exist, except so far as conferred by statute, and that the statutory provisions upon which respondents must rely are insufficient to confer the jurisdiction which the superior court is attempting to exercise in that proceeding.
The original jurisdiction of superior courts extends to sundry subjects declared in the constitution, and to "all such special cases and proceedings as are not otherwise provided for." (Cal. Const., art. VI, sec. 5.) This means necessarily that wherever a case, or cause, exists which is outside the scope of those directly mentioned in the provisions vesting jurisdiction in the superior court, and jurisdiction thereof has not been vested in any other court or official body authorized to exercise judicial functions, the jurisdiction to hear and determine such special case is vested in the superior court. In section 9 of the local option election law above cited, we find that "any elector of the territory in which an election under this act is held may contest such election for malconduct on the part of an election board or of any member thereof or on account of illegal votes. Such contest shall be subject to all the provisions of law relating to the contesting of elections, so far as the same may be applicable. . . ."
The right of contest being thus created and there being no other court vested with jurisdiction over the matter, it follows that by virtue of the constitution and the statute, the subject matter of any contest arising under the local option act is a special case within the jurisdiction of the superior court. There are no statutory provisions outlining a procedure for election contests, except as found in section 1111 et seq. of the Code of Civil Procedure. Those sections furnish a procedure for contesting the right of any person declared elected to an office to be exercised in any county, city and county, city, or any political subdivision of either. They contemplate an adversary proceeding in which the contestee is one who has been declared elected to an office, and he is to be brought before the superior court by means of a citation issued and served after an order providing for a special session of court to hear the contest. The petitioner *259
herein contends that the provisions of the Code of Civil Procedure are not applicable to a contest relating to a question submitted to the electors other than one including the election of a public officer; that there being no contestee, the provisions for citation and service as set forth in section 1119 of the Code of Civil Procedure cannot be applied to the case. He directs attention to the fact that the public is the real party in interest in such a proceeding, and claims that because there is no provision anywhere made by statute prescribing who shall represent the public, or how the representative of the public shall be cited or served with process, the attempted contest must fail for want of legal parties or procedure. Cases are not wanting which tend to support the argument thus made. Among these, and very strongly relied upon, are Beason v. Shaw,
Section
The petition is denied.
James, J., and Shaw, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on June 1, 1916.