People Ex Rel. Smith v. City of San Jose

[58]

NOURSE, P. J.

In these proceedings in quo warranto to test the validity of the annexation of inhabited territory to the city of San Jose the defendants had judgment. The cause was tried on an agreed statement of facts and without any additional evidence. Findings of fact were made. They add nothing to the judgment as will appear hereafter. Accordingly the appeal presents questions of law alone and we may confine our discussion to two of these as they control the judgment.

The proceedings are taken under the Annexation Act of 1913 (2 Deering’s Gen. Laws, Act 5159, Stats. 1913, p. 587) prior to its repeal in 1949. Section 6 of that act as amended, Statutes 1915, page 307, reads as follows: “. . . Whenever, upon proceedings had and taken and at elections called and held in accordance with the provisions of this act,

the electors of each of two or more such bodies of outside territory

have voted in favor of the annexation thereof to the same municipal corporation, the legislative body of such municipal corporation must submit to the electors thereof, as separate propositions, each to be voted upon separately and without regard to the others, the question whether each [of] such bodies of new territory shall be annexed to, incorporated in and made a part of such municipal corporation.” (Emphasis ours.)

The complaint alleged that the two parcels were two separate and entirely severable properties and did not adjoin each other in any particular.

(1) The trial court found that both parcels were contiguous to the boundaries of the city of San Jose but there was no agreement and no finding that they were contiguous to each other. But even if that finding could be effective here it must be disregarded because there was no evidence disclosing that the two parcels were contiguous to each other. On the other hand it is frankly conceded that they were not.

It is this finding which forms the basis for respondents’ main argument that the judgment must be affirmed. But if we were to accept respondents’ interpretation of the finding it is not supported in that respect by the agreed statement of facts and, since no additional evidence was taken, the finding will be disregarded on appeal.