Roche v. Superior Court

CONREY, P. J.

In this proceeding the plaintiff, an elector of the city of Oceanside, asks for a writ of prohibition directing that the defendants refrain from proceeding to enter judgment on the merits in a certain election contest, and from taking any further steps concerning said contest save and except to dismiss that proceeding.

On the fourteenth day of October, 1915, in the city of Oceanside, a city of the sixth class, an election was held to

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vote upon the question whether the sale of alcoholic liquors should be licensed in that city. This election was held pursuant to the provisions of a statute enacted in 1911 (Stats. 1911, p. 599), to provide for the regulation of the traffic in alcoholic liquors by establishing local option. On October 19th, the returns of that election were duly canvassed by the board of trustees of the city, who declared the result to be 217 votes against and 221 votes in favor of licensing such sales. On November 6, 1915, one C. G. Borden, an elector of the city, filed in the superior court of the county of San Diego a complaint in a proceeding entitled, “In the Matter of the Election held in the City of Oceanside, County of San Diego, State of California, on the 14th day of October, 1915, in pursuance of that certain act of the legislature of the State of California known as the ‘Wyllie Local Option Act,’ ” for the purpose of contesting the election upon certain stated grounds of contest; praying for a recount of the ballots and for judgment that the result of the election was not in favor of license, “and that the said board of trustees of said city of Oceanside be ordered to make an entry in its records declaring that the said city of Oceanside is no-license territory.” On November 16, 1915, an order was made for a special session of the superior court to be held on the third day of December for the purpose of hearing said election contest. No citation was then issued to any defendant or respondent in that ease (none being named in the complaint); but a direction was incorporated in the order that a copy thereof be published in two successive issues of a designated weekly newspaper published in the city of Oceanside,- and that publication was made in accordance with the order. On December 3d the court continued the hearing of the contest until December 6th, and on December 4th caused to be issued a citation directed to David Roriek, president of the board of trustees of the city of Oceanside, citing him to appear before the court on December 6th to show cause, if any he had, why contestant should not be granted judgment as prayed for in his petition of contest. The citation was duly served upon Roriek on December 4th, and at the hearing on December 6th Roriek filed an answer protesting that the court had no jurisdiction for any purpose in that case. The court having overruled all objections to its jurisdiction, proceeded to hear the evidence in the matter of said election contest, and will