Hevren v. Reed

COOPER, C.

—This appeal is from a judgment dismissing a petition for a writ of prohibition after a demurrer had been sustained to said petition. The petition alleges that the petitioner is a citizen and taxpayer of certain territory described therein; that certain proceedings were taken before the board of supervisors of Tulare county, but without proper petition, order, notice, or other essential required by law, and by virtue of such illegal proceedings and without authority of law the said board of supervisors declared the said territory to he a municipal corporation of the fifth class under the name of “city of Tulare.” That on the fourth day of October, 1889, a certain pretended board of trustees of said pretended city unlawfully and wrongfully, and without color of right, assuming to act as a pretended board, passed a pretended license prdinance numbered 66. That on the fourth day of November, 1895, the said pretended city, acting by its said pretended board, issued to plaintiff a permit or license to conduct the business of retailing spirituous liquors. “That defendants are not in fact the board of trustees of said city or of any city.” That defendants, without any authority whatever, assuming to act as a pretended board of trustees, are about to, and will, unless prohibited, revoke plaintiff’s permit, and declare his license forfeited. Judgment is prayed that defendants, as such pretended board of trustees, he prohibited from revoking said license.

The petition was demurred to upon the ground, among others, that it does not state facts sufficient to constitute a cause of action. We think the demurrer was properly sustained.

[221]

The writ of prohibition is for the purpose of and can only he granted for arresting proceedings without and in excess of the jurisdiction of some inferior tribunal, corporation, hoard, or person. (Code Civ. Proc., sec. 1102.) The complaint or petition in any case in a proceeding against a board of trustees of a city would have to show that the persons against whom the writ was sought were a “board” either

de facto

or

de jure,

and that the proceedings were in excess of the jurisdiction of the board as a body. In this ease, the complaint must he taken as true, and it is the universal rule that upon demurrer the court below will consider the applicant’s case to be such as he has stated in his pleadings, without investigation or inquiry touching the merits of the action. (High on Extraordinary Legal Eemedies, see. 767 b.)