222 P.2d 181 | Cal. Ct. App. | 1923
Petition for writ of prohibition.
It appears that there is pending in the superior court of the county of San Diego an action wherein Arthur Tocque is plaintiff and the city of San Diego and certain of its officers are defendants. In that action plaintiff questions the validity of certain proceedings for the consolidation of the city of San Diego with the city of East San Diego, and seeks to obtain an injunction to restrain and prevent the city of San Diego and its officers from performing certain acts necessary to complete the consolidation proceedings, and from in any manner assuming jurisdiction over the city of East San Diego or hindering or obstructing the present constituted officers and employees of the city of East San Diego in the discharge of their respective functions. It is alleged in the complaint in that action that the consolidation election in the city of East San Diego and the consolidation election in the city of San Diego were illegal and defective for various reasons, one of which was that at the time when the board of trustees of the city of East San Diego adopted its ordinance calling the election, the petition on which said ordinance was founded did not contain the names of one-fourth of the registered voters of said city of East San Diego. It was further alleged in said complaint that by reason of various facts alleged the city of East San Diego and the plaintiff and other residents or citizens thereof will lose their property and property rights by reason of the threatened acts of the defendants.
[1] The object of the present proceeding is to prohibit each and all of the judges of the superior court of the county of San Diego from sitting or acting in said action pending therein, and it is claimed that each and all of said judges are disqualified under the provisions of subdivisions 1 and 5 of section
No facts are alleged which would disqualify a judge of that court under subdivision 1. It is not made to appear that either of them is a party to or interested in said action.
Subdivision 5 of said section
It is evident that the disqualification relied upon by petitioner does not exist unless the clause "or any public agency," near the beginning of subdivision 5, was intended to include a city as a public agency within the meaning of said subdivision. We are of the opinion that a city, being a municipal corporation of general powers and not an agency organized for a special purpose similar to any of those mentioned in the subdivision, is not included therein; and that a judge of the superior court of the county in which *497
such city is located is not thereby disqualified in an action by or against such city, notwithstanding that the action may affect or relate to real property. While this question has not been directly decided, the conclusion at which we have arrived has been indicated by the supreme court inLindsay-Strathmore Irr. Dist. v. Superior Court,
We do not think that the said phrase was intended to include cities and other public corporations in general. If such had been the intention, it would not have been necessary with such particular care to limit and define the particular kinds of public agencies, boards, or districts to which the subdivision was intended to refer. In the principal case wherein the validity of said subdivision 5 was sustained, it was evidently understood by the supreme court that the legislature made a separate class of the corporations mentioned in the subdivision, and it was held that for the reasons there stated by the court there was sufficient justification for the legislation whereby that classification was made. (Sacramento etc. Drainage Dist. v. Rector,
The petition for a writ of prohibition is denied.
Houser, J., and Curtis, J., concurred. *498