Opinion
Department Two
APPEAL from a judgment of the Superior Court of San Luis Obispo County. W. B. Cope, Judge.
COUNSEL:
W. H. Spencer, for Appellants.
Graves & Graves, for Respondent.
OPINION
THE COURT Mandamus. The court below awarded a peremptory writ requiring the board of trustees of San Luis Obispo to call an election on the question of disincorporating the municipality under the act (Stats. 1895, p. 115) to provide for the disincorporation of cities of the sixth class. It is contended on appeal that plaintiff's complaint or affidavit -- to which defendant interposed a demurrer -- did not make a case for the issuance of the writ.
Said act makes it the duty of the board of trustees to call an election for the purpose stated upon receiving a petition in that behalf signed by not less than one-fourth of the qualified electors of the municipality; and it is objected that the petition presented to the board in this instance was ineffectual because it contained no representation that the subscribers thereto were qualified electors, but described them only as citizens of the city of San Luis Obispo. The objection cannot be sustained. It is shown by averment in the complaint that the petition was signed by the requisite number of qualified electors; and it was the fact of the receipt of such a petition which under the statute imposed the obligation on the board to call an election; whether the names subscribed were those of electors was, of course, a matter for consideration by the board, and an affirmative allegation on the subject in the petition itself would neither preclude nor materially aid the inquiry.
It is contended by appellants that the complaint does not show the respondent to be a "party beneficially interested" within the meaning of section 1086 of the Code of Civil Procedure, and that, therefore, he has no standing to maintain this proceeding; and they rely for this contention upon the doctrine of Linden v. Alameda County , 45 Cal. 6. But in the Linden case the averment was merely that the petitioner was a qualified elector in the county; while in the case at bar the averments are that the respondent is a resident and elector within said city, "and is the owner of real and personal property therein which is annually taxed for municipal purposes." This distinguishes the case at bar from the Linden case, which latter case is the only one to which our attention has been called in which the petitioner rested merely upon the general allegation that he was an "elector" or a "citizen." Whatever, under the various decisions which have been made on the subject, the law may be in other respects, it is sufficient, at least in a case like the one at bar, to aver that the petitioner is a property owner and taxpayer. (Hyatt v. Allen , 54 Cal. 353; Maxwell v. Supervisors , 53 Cal. 390; Eby v. School Trustees , 87 Cal. 166. See, also, Wiedwald v. Dodson , 95 Cal. 450.) There are also other cases in which this court assumed that it was sufficient for the petitioner to aver that he was a property owner and taxpayer.
The judgment appealed from is affirmed.