Beaumont v. Samson

CHIPMAN, P. J.

The petition sets forth that on September 6, 1906, there was filed in the office of the clerk of defendants a petition asking that defendants give notice of an election to be held for the purpose of determining whether the

[702]

territory in said petition described, including the town of Corning, shall become incorporated under the act approved March 13, 1883. It is set forth in the petition for the writ that in certain particulars, alleged to be essential to the jurisdiction of the defendants to act in the matter, the petition presented to defendants was fatally defective. It appears that the petition was presented to and heard by defendants, as such board of supervisors; that an election was held pursuant to notice thereof published in the “New Era,” a newspaper published in the town of Coming, said county, but as to which it is alleged that no proof of such publication was made to said defendants before malting the order declaring the result of said election or before making the order declaring the territory described therein had become duly incorporated as a municipal corporation of the sixth class.

The petition for the writ alleges further: ‘1 That heretofore your petitioner presented his petition and application to the Hon. John F. Ellison, Judge of the Superior Court of Tehama county, State of California, praying that a writ of review issue to the Board of Supervisors of the county of Tehama in the matter hereinbefore set out and alleged in this petition, and on the 11th day of January, 1907, the said judge . . . made and entered an order refusing to issue a writ of review in said matter and denying the application of your petitioner herein for such writ of review and dismissing your petitioner’s petition in said matter. That the said Hon. John F. Ellison, judge of the Superior Court of Tehama county as aforesaid, denied the said application of your petitioner upon the sole ground that the subject was not a proper matter for the issuance of a writ.”

Upon filing the petition, this court issued an order for the defendants to show cause why the writ should not issue, in response to which defendants appeared by demurrer and also by answer, showing the proceedings before the superior court. The demurrer alleged the following grounds: 1. Insufficiency of facts to constitute a proper cause for writ of review; 2. That defendants, in respect of the matters set forth in the petition were not exercising judicial functions; 3. That in said matter there is “a plain, speedy and adequate remedy” without resort to writ of review; namely, by