Drumhiller v. Wright

California Court of Appeal Nov 23, 1923 No. Civ. No. 4612.Published

Before: Conrey

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Holding. The court denied a petition for intervention because the proposed intervener lacked a direct legal interest in the outcome, and granted a peremptory writ of mandate compelling the city clerk to perform his statutory duty, holding that a superior court lacks jurisdiction to enjoin public officers from executing a public statute.

Issues

Whether a taxpayer has a sufficient interest to intervene in a mandamus proceeding concerning municipal consolidation.
Whether a superior court has the power to restrain a city clerk from performing statutory duties related to municipal consolidation.
Whether a writ of mandate should issue to compel the certification and transmission of consolidation records.

Disposition. Peremptory writ issued.

Quotations verified verbatim against the opinion

“the interest mentioned in the code which entitles a person to intervene in a suit between other persons must be in the matter in litigation and of such a direct and immediate character that the intervener will either gain or lose”

“An injunction cannot be granted: . . . Fourth. To prevent the execution of a public statute, by officers of the law, for the public benefit.”

“The demurrer to the petition herein is overruled. There being no further answer the relief demanded should be granted. Let the peremptory writ issue.”

CONREY, P. J.

Petition for writ of mandate to compel respondent city clerk of the city of San Diego to certify and transmit to the Secretary of State copies of certain records and a statement of facts concerning a special election relating to a proposed consolidation of the city of East San Diego and the city of San Diego. The consolidation proceedings were in attempted compliance with an act to provide for consolidation of municipal corporations as adopted in the year 1913 and amended in the year 1917. (Stats. 1913, p. 577; Stats. 1917, p. 26.)

The petition herein sets forth proceedings conducted by the city of East San Diego and by the city of San Diego,

prima facie

sufficient to establish the conditions which, under the provisions of section 4 of said act, as amended in the year 1917, imposed upon the clerk of the city of San Diego the duty to make and certify and transmit to the Secretary of State the documents and statement demanded by petitioners herein. The law requires that the same shall be filed by the Secretary of State, and provides that from and after the date of the filing of said documents in the office of the Secretary of State “the annexation of such territory shall be deemed to be and shall be complete,” etc. The petitioners are residents, electors, and taxpayers of the city of East San Diego.

Without formal notice of application for a peremptory writ, and without the issuance of an alternative writ, counsel for petitioners and for respondents, together with Mr. Sanders, one of the attorneys appearing here as

amici curiae,

severally waived notice and agreed on presentation of this matter to the court at a stated time. At that time respondents demurred to the petition on the • ground that it does not state facts sufficient to constitute a cause of action or to entitle petitioners to any relief against respondents. At the same time Sloane & Sloane, representing one Charles H.

[500]

Harris, a resident and taxpayer of the city of Bast San Diego, asked leave to file a petition for intervention by said Harris and requested that he be allowed to intervene in this proceeding. The petition proposed for filing sets forth the pendency in the superior court of San Diego County of a

Drumhiller v. Wright

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CONREY, P. J.

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