Hirons v. Clare

MYERS, J.,

pro tem.

This is an appeal from a judgment of the superior court, after hearing upon the return of an alternative writ of mandate and defendants’ answer thereto, adjudging and ordering that a peremptory writ issue commanding and directing said defendants, as trustees of the city of East San Diego, a municipal corporation of the sixth class, to call and hold a special election for the consolidation of said city with the city of San Diego, adjacent and contiguous thereto, pursuant to the provisions of the Municipal Consolidation Act of 1913, and the amendments thereto of 1915 and 1917.

The court below filed findings of fact wherein it found, generally and specifically, that all the material allegations of the complaint are true. It appears, moreover, from an inspection of the record that all of these allegations were admitted by the failure to deny them in the answer. The complaint being verified, a general denial was insufficient to put them in issue.

From the facts thus established, it appears that a petition was duly filed with said board of trustees of said city of East San Diego, signed by more than one-fourth in number of the qualified electors of said city, asking and requesting that a special election be called to vote upon the question of such consolidation, and that said defendants refused and ever since have refused to call or hold said election.

Appellants’ first contention is that they were not required to call said election because it does not appear that the city clerk, to whom the petition was referred by them for checking, ever reported back to them that it was sufficient. Appellants cite

Davenport

v.

City of Los Angeles,

146 Cal. 511, [80 Pac. 684], That ease is not in point here. It arose under a provision of the charter of Los Angeles, which expressly made such certificate of the city clerk a condition pre

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cedent to the action of the city council. The statute under which petitioners are proceeding here does not provide for or require any such certificate. It provides as follows: “Whenever a petition, signed by not less than one-fourth in number of the qualified electors of any municipal corporation, . . . is filed with the legislative body thereof, asking that such municipal corporation and any other municipal corporation contiguous thereto, designated in such petition, ... be consolidated, such legislative body must, without delay, call a special election,” etc. This case is, therefore, ruled by the case of