Taylor v. Burks

TAGGART, J.

Application for writ of mandate to compel defendants as members of board of trustees of city of Ocean Park to call an election to vote upon the disincorporation of that city, and to fix a date for such election within a reasonable time.

The petition sets out that the city of Ocean Park is a municipal corporation of the sixth class governed by a board of trustees composed of five persons; that the defendants are three of such trustees and that the other two, as petitioners are informed and believe, have

tendered

their resignation as members of said board; that petitioners as electors, owners of property and taxpayers in said city of Ocean Park, on the twenty-fourth day of June, 1907, filed with said board of trustees a petition signed by a majority of the qualified electors of said city, requesting said board of trustees to submit to the electors of said city the. question whether said city should disincorporate; that no action was taken on said petition until July 22, 1907, at which time said board of trustees, by the affirmative vote of all of the defendants, called said election and ordered the same to be held April 13, 1908, which date is the same day fixed by law for the regular election of trustees in cities of the sixth class.

For return to the order to show cause, the defendants' demur severally to the petition and file a joint answer. In support of the demurrers it is contended that the proceeding is improperly brought in this, that it runs against the de

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fendants as individuals and not officially, and that the board of trustees as such is the only party competent to act in the premises, and that it is the action of the board of trustees that is required in making the order desired. The prayer of the petition is that the defendants be “commanded to rescind the action of the board” fixing April 13, 1908, for the date of the election, and “to order an election.” Neither of these things can be done by the individual members of the board.

The act which a court may, by writ of mandate, compel a tribunal, corporation, board, or person to perform is one which the law specially enjoins, as a duty resulting from an office, trust or station. (Code Civ. Proc., sec. 1085.) The statute under which the proceedings to disincorporate are taken (Henning’s Gen. Law, p. 989) reads (sec. 1): “A municipal corporation of the sixth class may disincorporate after proceedings had as required in this act. The council, the board of trustees, or other legislative body of such corporation shall, upon receiving a petition therefor . . . submit the question,” etc.