Myers v. Mayor of Placerville

RHODES, C. J. — The objections to the petition for a mandamus — that it does not state the title of the action, nor describe the parties as plaintiffs or defendants, and that it does not state facts sufficient to constitute a cause of action — are not well taken. The Practice Act does not prescribe that a title shall be given to the proceeding, nor that the respective parties shall be designated by particular names, nor has any particular rule in those respects become established by the usage of the profession. The petition states sufficient facts to entitle the petitioner to the benefit, of the writ.

The answer of the respondents takes issue upon many of the averments of the petition, which we regard as immaterial. It is alleged in the petition that the subscription to the capital stock of the Placerville and Sacramento Valley Railroad Company was made by the common council of the city of Placerville upon the books of the company upon the express condition that the city should not be liable for any of the debts or liabilities of the company beyond the amount of the stock so subscribed. This allegation is denied in the answer. The sixteenth section of the act to authorize the city of Placer-ville to subscribe to the capital stock of said company (Stats. 1863, p. 90) provides that such subscription shall be made upon the express condition named, but it was not thereby intended that such condition should be annexed in writing to the subscription upon the books of the corporation; but, rather, that such condition should, as matter of law, attach to the subscription when made. The averment of matter of law requires no denial, and, if denied, presents no issue.

They further deny that the notice required by law of the submission to the qualified electors of said city of the proposition to make such subscription to the capital stock of said company was given. This is not a matter entering into the contract between the city and the railroad company, but is addressed to the common council of the city. An election is required to be held under their direction, and they are to declare its result, and their conclusion is final, unless their proceedings are reviewed, and their decision reversed by competent authority; and after the result has been declared, and [568]they have proceeded to act thereon, the election cannot be collaterally contested by them. They are thereafter estopped to deny that the election was legally held, or that the result was in favor of the proposition voted upon.

By the seventeenth section of the act, the bonds of the city are forbidden to be issued until all that portion of the railroad lying in Sacramento county has been graded and put in a condition to receive the ties and iron, and it is the duty of the proper authorities of the city to see that ithe road has been so graded before issuing the bonds; but after the bonds are issued, they are estopped to say that, in violation of law, they issued the bonds before the requisite work was performed.