Wiedwald v. Dodson

California Supreme Court Aug 1, 1892 No. No. 14596Published

Before: McFarland

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Holding. The court held that a writ of mandate should not be issued to compel a city to hold an election for the exclusion of territory when such exclusion would effectively disincorporate the city, as the statute was intended for reasonable boundary changes rather than the destruction of the municipality. Furthermore, the court held that the issuance of a writ of mandate rests in the sound judicial discretion of the court and should not be used to enforce the letter of the law against its spirit.

Issues

Whether a statute providing for the exclusion of territory from a city authorizes an exclusion that effectively disincorporates the municipality.
Whether a court has the discretion to refuse a writ of mandate even when the applicant has a technical legal right to the remedy.

Disposition. reversed

Quotations verified verbatim against the opinion

“The act was evidenty intended to provide for an ordinary, reasonable change of the boundaries of a city; but it was clearly not intended as a means by which a city might be practically disincorporated.”

“The writ of mandamus is not wholly a writ of right, but lies, to a considerable extent, within the sound judicial discretion of the court where the application is made”

“The writ of mandate should not he used to wrongfully wrest a statute from its true purpose.”

Synopsis

. 1 Municipal Corporations — Change of Boundaries — Construction of Statute—Unreasonable Exclusion of Territory—Special Election —Mandamus. —The act of March 19,1889 (Stats. 1889, p. 356), providing for the changing of the boundaries of cities and municipal corporations, and the exclusion of territory therefrom, was intended to provide for an ordinary reasonable change of the boundaries of a city, ^nd not a means by which a city might be practically disincorporat.ed; and where it appears, in a proceeding thereunder, that the extent and proportion of the population sought to be excluded from a city would leave less than one half the population necessary to form a municipal corporation, the right of an elector and property owner to a writ of mandate to compel the trustees of the city to call a special election, for the purpose of submitting • the question of the exclusion of the territory to the electors, will be denied.

¡Id. —Mandamus in Discretion of Court —Violation of Spirit and Purpose of Law. — The writ of mandamus is not wholly a writ of right, but lies to a considerable extent within the sound discretion of the court where the application is made, and should not issue to compel a technical compliance with the letter of the law, in violation of its plain intent and spirit, nor to wrest a statute from its true purpose.

McFarland, J. The respondent filed a petition in the superior court, praying for a writ of mandate to compel the appellants, as trustees of the city of San Pedro, to call a special election, and submit to the electors of said city the question of excluding therefrom certain territory described in the petition. After a trial, the court rendered judgment granting the writ, and the trustees appeal from the judgment.

The respondent bases the right to maintain this proceeding upon the fact that he is an elector and tax-payer and real estate owner within the city.

The petition for a special election, involved in the case at bar, was filed March 10, 1891; and it appears from the findings that a prior similar petition had been filed on December 11, 1890 (involving exactly the same territory); that said prior petition had been granted by [452]the trustees, and an election under it had been held on January 12,1891; that one Anderson had filed a petition in said superior court for a writ of mandate to compel the trustees to declare the result of such election, and to certify to the secretary of state that such result was in favor of the exclusion of such territory; and that said petition for such writ of mandate is still pending and undetermined.

It further appears from the findings that the territory described in the petition to the trustees (in the case at bar) “ is nearly the whole of the said city of San Pedro, and that if the said territory should be excluded it would carry with it nearly or quite nine tenths of the popula-' ti on of said city, and four members of the board of trustees, and that the whole number of voters left in the city of San Pedro, if the said territory should be excluded, would not exceed thirty.” It appears that at the last municipal election, held in April, 1890, there were 258 votes cast, and that there are five trustees of said city.

Passing other points made by appellants, it is clear that the judgment must be reversed upon the finding as to the extent and the proportion of the population which would be excluded from the city if the judgment were affirmed. The proceeding before the board of trustees was under the statute approved March 19,1889, entitled “ An act to provide for changing the boundaries of cities and municipal corporations, and to exclude territory therefrom.” (Stats. 1889, p. 356.) This act was re-enacted, inadvertently perhaps, on March 20,1889. (Stats. 1889, p. 433.) The act was evidenty intended to provide for an ordinary, reasonable change of the boundaries of a city; but it was clearly not intended as a means by which a city might be practically disincorporated. It is based upon the theory that the city whose boundaries are to be changed shall continue its existence, and provides for many things to be done by the city after the change; as, for instance, to levy taxes upon the excluded territory. But by the election which the trustees are

Wiedwald v. Dodson

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