Tocque v. Superior Court

[495]

CONREY, P. J.,

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.

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 170 of the Code of Civil Procedure. Respondents have demurred to the petition on the ground that it does not state facts sufficient to constitute a cause of action or to entitle the petitioner to any relief.

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 170 reads as follows: “In an action or proceeding brought in the superior court or justices’ court by or against the reclamation board of the State