Fawkes v. City of Burbank

SHAW, C. J.

This was a proceeding in

mandamus

begun in the second division of the district court of appeal of the second district. The decision by that court was vacated and the cause transferred to this court for rehearing and submitted on the briefs on file, without further argument.

The petition seeks to compel the defendants, constituting the board of trustees and clerk of the city of Burbank, to adopt a resolution and call a special election for the purpose of determining the question whether the city of Burbank shall be consolidated with the city of Los Angeles and assume its share of the bonded indebtedness of the city of Los Angeles.

On September 14, 1920, a petition was filed with the trustees, in pursuance of section 5 of the Municipal Consolidation Act (Stats. 1915, p. 311), signed by not less than one-fourth of the qualified electors of the city of Burbank, asking the board to submit to the electors of the city the question whether such consolidation should be had, and setting forth the several items of the bonded indebtedness of the city of Los Angeles to be proportionately assumed by the inhabitants of the city of Burbank, amounting to over $50,000,000. Thereafter, on October 5, 1920, the trustees adopted a resolution calling for the election prayed for in said petition, to be held on November 16, 1920, and directing the clerk to give the notice accordingly. In pursuance thereof, the clerk proceeded to cause a notice of the election to be published in a newspaper printed in the city of Burbank for a period of four weeks preceding the day of said election. Thereafter, on November 5, 1920, this petitim for a writ of mandate was filed, and an alternative writ was issued by the district court of appeal. The petition alleges that the resolution and the notice are both defective in, that certain items of bonded indebtedness of the city of Los Angeles, to be assumed by the city of Burbank, are erroneously stated, so that the true amount of indebtedness to be assumed was not given therein, and that for this reason the said resolution and the said notice of election were ineffectual and void. Neither the order for the issuance of the alternative writ

[401]

nor the alternative writ itself commanded the officers of the city of Burbank to desist from holding the election pursuant to the notice then being published. They merely ordered said defendants, to show cause why a resolution should not be adopted and a notice given conforming to the facts, in compliance with the said petition for the election. The answer of the defendants, filed in, the district court of appeal, admitted the alleged inaccuracy in the resolution and notice of election. By a supplemental answer the defendants showed that the election called by the resolution was held at the time required and in accordance with said resolution on the sixteenth day of November, 1920; that at said election 939 votes were cast upon the proposition submitted by the resolution calling the election and the notice thereof as published, and that of said number of votes 92 were in favor of the proposed consolidation, and 847 against said proposed consolidation; that at that time there were in all 1,397 qualified electors in said city entitled to vote at said election; that the petition for the calling of such election was signed by 355 of the qualified voters of said city, and that 249 of said voters who signed the petition voted at said special election.