Olsen v. Board of Supervisors

California Court of Appeal Feb 3, 1939 No. Civ. 12114Published

Before: Wood

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Holding. The court held that a board of supervisors exercises ministerial, not judicial, functions when canvassing election returns, and therefore is not subject to writs of certiorari or prohibition. Additionally, the court denied the petition for a writ of supersedeas because there was no judgment to enforce and the court lacked authority to issue an injunction against the board.

Issues

Whether a board of supervisors exercises judicial functions when canvassing election returns such that it is subject to writs of certiorari or prohibition.
Whether a writ of supersedeas is appropriate to restrain a board of supervisors from canvassing election returns following the dismissal of a petition in intervention.

Disposition. Writ discharged and petition for supersedeas denied.

Quotations verified verbatim against the opinion

“The board of supervisors in canvassing election returns exercises a ministerial and not a judicial function.”

“A writ of supersedeas is an order for the stay of proceedings pending an appeal and is limited to restraining action upon the judgment from which the appeal is taken.”

WOOD, J.

—An election was held on October 18, 1938, for the purpose of determining whether certain territory in the county of San Luis Obispo should be incorporated as a city of the sixth class under the name of “City of Pismo Beach”.

[637]

The election board transmitted to the county clerk the returns showing that 205 votes were cast for the incorporation and 198 votes were east against the incorporation. A petition was filed in the superior court by Martin Olsen on October 24, 1938, in which it was alleged, among other irregularities charged, that 22 votes were cast by persons not entitled to vote in the election. Thereafter the petitioners herein, Fred Scott and Ida J. New, filed a petition in intervention in which similar allegations were made and in which they asked that writs of

certiorari

and prohibition be issued against the board of supervisors, that the election be declared void and that the supervisors be restrained from canvassing the returns of the election. The original petitioner, Olsen, dismissed his petition. The superior court on October 24, 1938, issued a writ of

certiorari

and temporarily restrained the supervisors from taking further proceedings. The court later sustained a demurrer to the petition without leave to amend and on December 15, 1938, rendered a judgment dissolving the writ which had been issued and dismissed the petition in intervention. The interveners filed notice of appeal on December 16, 1938.

A writ of

supersedeas

should issue if it appears that it is necessary to protect the rights of an appellant but it should not issue if it appears that the appellant is not entitled to the relief denied by the judgment from which an appeal has been taken.

O’Brien

Municipal Court,

140 Cal. App. 362 [35 Pac. (2d) 395].) In this proceeding petitioners seek to prohibit action by a board not exercising judicial functions. The question whether the remedy sought be called a writ of review or a writ of prohibition is of no consequence. In section 1068 of the Code of Civil Procedure it is provided:

Olsen v. Board of Supervisors

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WOOD, J.

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