Morin v. City Council

PATTERSON, J. pro tem.

This is an appeal from the judgment granting a peremptory writ of mandate to compel the City Council of the City of San Jose to find valid certain protests against the annexation of contiguous territory and to set aside any determination to the contrary.

On December 5, 1949, the city council by resolution commenced proceedings to annex territory designated as “Bradley Manor No. 3.” The proceedings were initiated under the provisions of Annexation Act of 1913, Government Code, sections 35100-35157. Pursuant to the statute January 23, 1950, at 8 p. m. was fixed as the time for hearing protests. On that date purported protests were filed on behalf of the owners of 386 of the 668 parcels in the territory to be annexed. In view of the large number of protests the council continued the hearing for one week to determine their sufficiency. On January 30th the following week the council recessed to meet as a committee of the whole in a closed meeting out of the presence of the protestants or their representatives and considered the merits of the protests. They then returned to the council room and declared the protests to be insufficient in that they were not signed by a majority of the owners in the area to be annexed. The attorney for the protestants asked wherein the protests were insufficient. The council declined to answer and suggested that he should see the city attorney the following day. A resolution finding the protests insufficient was then adopted.

The plaintiffs as landowners and taxpayers filed on their own behalf and as representatives of the other protestants a petition for a writ of mandate to sustain the protests. An alternative writ was issued directing the council to show cause on February 17, 1950, why a peremptory writ should not issue. An answer was filed and the matter was set for

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trial on March 22, 1950. In the meantime an election was held on February 23, 1950, with the result that 326 ballots were cast for annexation and 291 against.

. It developed at the trial that the council after receiving the protests directed the city, clerk to check their sufficiency. The clerk testified that she cheeked the names listed on the protests against the record holders of the legal title and reported insufficient those protests wherein any discrepancies occurred. Prior to the January 30th meeting she found 52 of the protests showed a variance and so informed the council at the closed meeting on that date. Upon the basis of this report the council without a hearing declared the protests invalid. After the meeting of January 30th she made a further examination of the entire petition and found 14 additional protests to be insufficient. This would leave 320 valid protests and the total required to defeat the annexation would be 335.