Koehler v. Board of Trustees

THOMPSON, J.

This original proceeding by a qualified elector of the city of Coronado is brought to secure a writ of mandate directed to the trustees of that city compelling them to call a special election for the purpose of determining whether the following trustees (Humphrey J. Stewart, George Holmes, Fellows Jones, J. E. Alearez, and Margarethe M'acMullen) should be recalled and their successors elected. Since the filing of the recall petition making these demands, however, J. E. Alearez has resigned as trustee and one. Frank L. Wilson has been appointed in his stead, and George Plolmes has died and Captain Wm. M. Grose has been elected in his stead, also the respondent Mar-gar ethe MacMullen failed to join with her eotrustees in either the answer, the demurrer, or the motion to strike filed in response to the petition and the alternative writ. So far as the motion to strike is concerned, it relates to various conclusions of law and is submitted by respondents with the statement that a reading of the complaint is sufficient to show that they have no place in the complaint. When no more cogent reason is assigned for their detrimental effect it is enough in a proceeding of this character to say that conclusions of law in a pleading are disregarded. Nor are we called upon to pass upon the special demurrer which attacks the petition for alleged uncertainties, ambiguities, and unintelligibilities. No argument is presented to support the specification, and but one authority which goes to the merits of the general demurrer.

The answer to the petition having raised issues of fact a referee was appointed to try the issues and make his findings, from which, together with the pleadings, it appears that on October 18, 1926, a recall petition was first

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filed in this present situation, but was apparently abandoned. A second petition, the one here involved, was circulated, and filed on October 21, 1926. The city clerk compared the names on the petition with the printed indices furnished by the county clerk and not with the original affidavits of registration and attached to the petition his certificate as follows:

“I, W. Tilden Clark, City Clerk of the City of Coronado, State of California, do hereby certify: That I am the regularly elected, duly qualified and acting City Clerk of the said City of Coronado, State of California. That on the 21st day of October, A. D. 1926, there was filed in my office a petition demanding the recall of and election of successors to the following-named members of the Board of Trustees of the City of Coronado, to-wit: Humphrey J. Stewart, George Holmes, Fellows Jones, J. E. Alcarez and Margarethe F. MacMullen. That said petition contains the names of more than twenty-five per cent of the entire vote cast at the last preceding municipal elections at which such offices were respectively voted for. That in ascertaining such percentage I have counted only the names of duly qualified electors of said city.