People ex rel. Connolly v. City of Coronado

Belcher, C. A general demurrer to the complaint in this action was sustained by the court below, and, the plaintiff declining to amend, judgment was entered in favor of the defendant, from which the plaintiff appeals.

The facts stated in the complaint are in substance as follows: Under the provisions of section 8 of article XI of the constitution of this state, a charter for the city of San Diego was framed by fifteen freeholders, ratified by a vote of the electors, and on March 16, 1889, approved by the legislature. (Stats. 1889, p. 643.)

On March 19, 1889, an act was passed by the legislature, entitled: “ An act to provide for changing the boundaries of cities and municipal corporations, and to exclude territory therefrom.” (Stats. 1889, p. 356.)

On March 17, 1890, proceedings were commenced, [573]"under the provisions of this act, to change the boundaries of the city of San Diego as described in its said •charter, and to exclude therefrom certain territory known as “ Coronado Beach,” the boundaries of which were specifically described. These proceedings were conducted and carried on in strict conformity to the provisions of the said act, and resulted, in October following, in the exclusion of the said territory, if the provisions of the act were applicable to the city of San Diego and the proceedings could be taken at that time.

Afterwards, in November and December, 1890, the excluded territory was regularly organized as a municipal corporation of the sixth class, called the “ City of Coronado,” pursuant to the provisions of an act of the legislature, approved March 13,1883, and entitled: “An act to provide for the organization, incorporation, and government of municipal incorporations.” (Stats. 1883, p. 93.)

It is alleged that said pretended corporation, the city of Coronado, has “ usurped and exercised, without any warrant, charter or grant, the franchises of a municipal corporation of California, to wit, a city of the sixth class, and continues so to do, and has exercised and still continues to exercise franchises of a city of the sixth class without any right so todo.” And the prayer is for judgment “ that the defendant, the city of Coronado, be excluded from all corporate rights, privileges and franchises”; and that said corporation be dissolved.

It is admitted by counsel for appellant that the facts stated in the complaint show “ the due incorporation and organization of the defendant city in all respects, if the stated proceedings had for the purpose of excluding territory from the city of San Diego were effectual for that purpose.” And it is said: “ Our point of contention is that these segregation proceedings were wholly ineffectual to segregate the territory therein described from the city of San Diego; that the said territory remained and still is a part of the city of San Diego, and that therefore the incorporation and organization of the