In Re Board of Trustees of El Cerrito

NOURSE, J.

This is an original application for a writ of mandate to require the trustees of the city of El Cerrito to call a special election for the election of a city treasurer. The cause has been submitted on the demurrer of the board of trustees, who have voluntarily appeared as respondents, though they were not named as such in the petition. The grounds of the demurrer are, first, want of jurisdiction, and, second, failure of the petition to state sufficient facts.

The petition alleges that heretofore, but at a time not stated, the petitioner filed in the superior court in and for the county of Contra Costa a petition praying for a writ of mandate to compel the board of trustees of the city of El Cerrito to call a new election for the office of city treas

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urer; that said petition was denied by the judge of the said superior court, and the petitioner, therefore, applies to this court for the same relief. A full copy of the former petition is then pleaded and the petition before us closes with a prayer for the relief mentioned without further allegation of facts. It appears from the copy of said petition that on the fourteenth day of April, 1924, at an election duly held in the city of El Cerrito, the petitioner, Mary E. Curtin, and one Cora J. Simonson were candidates for the office of city treasurer; that upon the canvassing of said election the trustees, sitting as a canvassing board, reported that the petitioner had received 216 votes and that Cora J. Simonson had received 217 votes. The latter candidate having been declared elected, this petitioner instituted proceedings in the superior court to contest said election. It is then alleged that in said proceeding the trial court found that the two candidates each received an equal number and the highest number of votes, to wit, 213 votes each. The petitioner then alleges that by reason of said finding she made demand upon the said board of trustees that they call a new election, but that said demand was refused.

(1) At the outset the trastees, to whom we will hereafter refer as the respondents, insist that this court is without jurisdiction to entertain the petition because it appears upon the face of the petition that a similar petition was made to the superior court in the county of Contra Costa and was denied by that court. If we could assume from the allegations of the petition that this application was denied by the superior court upon its merits, the demurrer of the respondents upon this ground would have to be sustained because the matter would be