Mintzer v. Schilling

Britt, C. The town, or, as it is called officially, the city, of Long Beach, in Los Angeles county, is a municipal corporation of the sixth class, in which class are included all cities having less than three thousand inhabitants, organized under the act of March 13, 1883, “To provide for the organization, incorporation, and government of municipal corporations.” Defendants compose the board of trustees of said town, which board is the legislative body of the corporation. Among the provisions of “An act to provide for the disinco-[362]poration of municipal corporations of the sixth class,” approved March 26, 1895 (Stats. 1895, p. 115), are the following: “A municipal corporation of the sixth class may disincorporate after proceedings had as required in this act. The council, the board of trustees, or other legislative body of such corporation, shall, upon receiving a petition therefor, signed by not less than one-fourth of the qualified electors thereof, as shown by the vote cast at the last municipal election held therein, submit to the electors of such corporation the question whether such municipal corporation shall disincorporate. Such question shall be submitted at a special election to be held for that purpose, and such legislative body shall give notice thereof by publication in a newspaper .... for a period of thirty days prior to such election.” In. June, 1896, a petition signed by the requisite number of electors was presented to said board of trustees, praying that body “ to call an election in said city for the purpose of the disincorporation of said city, as provided for in an act,” etc., designating the said statute of 1895. In compliance with such petition, the said board, by resolution passed June 25,1896, made appropriate provision for such election, and directed that the same be held on July 27, 1896, and that the city clerk give notice thereof by publication in a specified weekly newspaper. Accordingly, the clerk published such notice over his official signature, reciting therein that it was given pursuant to said resolution of the board of trustees directing the same. The notice was published in five weekly issues of the designated newspaper, commencing on June 27th, and ending July 25th. The election was held July 27th, and a majority of the votes cast were in favor of disincorporation. The board of trustees, however, refused to canvass the returns, as required by the statute, and'the present proceeding is in mandamus to compel them to do so. The court below awarded the writ as prayed by plaintiff.

The chief contention of appellants is that the act of [363]