L.A. No. 755.
January 14, 1901.
APPEAL from a judgment of the Superior Court of San Luis Obispo County and from an order denying a new trial. E.P. Unangst, Judge.
The facts are stated in the opinion.
P.O. Chilstrom, and S.M. Swinnerton, for Appellant.
A.E. Campbell, and Venable Goodchild, for Respondent.
This is a proceeding to review the action of the board of supervisors of San Luis Obispo county in the matter of the alleged creation of Templeton sanitary district in said county.
The plaintiff based his application for the writ upon an affidavit as required by section 1069 of the Code of Civil Procedure. The writ was issued and served and a return thereto was made, setting out the petition for the formation of the district, which purported to be signed by twenty-seven "residents and freeholders" of the district therein described.
On November 7, 1898, the board made an order reciting that "a petition in due form having been received from residents and freeholders of the district hereinafter described," praying for the creation of a sanitary district, and ordering that an election be held on December 10th by the qualified electors residing within the district, the boundaries of which were stated in the order, designating the place at which the election should be held and the persons who should conduct the same, and further ordering "that a copy of said order be posted for four successive weeks prior to said election in three public places within the proposed district," and that it should be published for four successive weeks in the "Templeton Advance."
The return to the writ further shows that officers of the district were nominated, and an affidavit of the publication of said order calling an election was made and filed; that on January 4, 1899, the board canvassed the returns of the election and found the whole number of votes cast to be, for a sanitary district, fifty-nine votes, and against it forty-four votes, and that persons therein named had been elected respectively to the offices of sanitary assessor and members of the sanitary board, and declared that "a sanitary district, to be known and designated Templeton sanitary district, has been duly established," with boundaries therein described.
The return does not show that any evidence was taken or heard as to whether the signatures to the petition were genuine, nor whether twenty-five of them were each a resident freeholder within the boundaries of the proposed district, nor does the return show that the order calling an election was posted in three public places within said proposed district for four weeks, or at all, or that any evidence in regard thereto was heard.
The defendant also filed an answer to the petition for the writ denying the allegations of the petition. This was irregular. The return to the writ constitutes the answer, as well as evidence, and the case is heard thereon, unless upon motion an additional or amended return is made.
Upon the hearing, however, Mr. Whicher, the clerk of the board of supervisors, was called by the plaintiff, and testified that no evidence was received by the board as to whether or not the signers of the petition were residents and freeholders within the district; that no witnesses were produced or examined before the board upon that question; that Mr. Smith, a member of the board, examined the names and was satisfied with them.
Mr. Fisher was called by the defendant, and testified that he was one of the petitioners; that he was present at the time the petition was presented to the board. He was then asked several questions by counsel for defendant as to whether he was questioned by any member of the board as to the residence of the signers of the petition, and whether the petitioners were freeholders, and whether Supervisor Smith did not go over the names and question him in "regard to them." These questions were each objected to by plaintiff upon the ground that it did not appear that the witness was sworn before the board, and that the questions were incompetent. Each objection was overruled, and the plaintiff excepted. The witness answered each question affirmatively, and further testified that Supervisor Smith looked over the petition and asked witness about the names, if they were freeholders, "And I said yes; if you are not satisfied you can go down and look at the records"; and he said, "We will take it for granted."
No objection was made upon either side to the introduction of parol evidence, and the question of its admissibility need not now be considered; but if its admissibility be conceded, the court erred in overruling plaintiff's objections above noted, for the reason that the unsworn statements of the witness made before the board of supervisors was incompetent, and its repetition before the court was mere hearsay, or the repetition of unsworn statements, and did not tend to prove that as a matter of fact the petitioners were each residents and freeholders within the proposed district and that their signatures were genuine. The determination of these questions, upon which the jurisdiction of the board depended, required the exercise of judicial power, and as the statute did not prescribe the character of the proof by which they should be determined, they must be established in accordance with the rules of evidence recognized by the courts and the common law. "An exception to the rule that the sufficiency of the evidence will not be reviewed is made when the question is whether jurisdictional facts were or were not proved. This exception arises out of the most important office and function of the writ — the keeping of inferior courts and tribunals within proper bounds. If the decision of the inferior tribunal as to the sufficiency of the evidence to establish jurisdictional facts were not reviewable, the writ of certiorari would be of no avail as a remedy against an assumption of jurisdiction. And for the purpose of enabling the reviewing court to determine whether jurisdictional facts were established, it will require a return to be made of the evidence upon which such facts are based." (4 Ency. of Pl. Pr. 262.) This court has said: "In all cases it is essential that there be proof of a sufficient petition, inasmuch as without it the board could acquire no jurisdiction to act, and its proceedings would be absolutely void. . . . . Upon certiorari, though the inferior tribunal is required to certify only matters of record, yet if the jurisdictional facts do not appear of record, it must certify not only what is technically denominated the record, but such facts, or the evidence of them, as may be necessary to determine whatever question as to the jurisdiction of the tribunal may be involved." (In re Madera Irr. Dist., 92 Cal. 296, 333, 335; citing Blair v. Hamilton, 32 Cal. 52; Whitney v. Board of Delegates, 14 Cal. 479; Lowe v. Alexander, 15 Cal. 300.)
27 Am. St. Rep. 106.
The statute authorizing the formation of sanitary districts requires that the order or proclamation calling an election "shall be posted for four successive weeks prior to the election, in three public places within the proposed district, and shall be published," etc. The return shows that proof of publication was made by affidavit of the publisher in due form, but there is no evidence of posting, nor is there even a recital in the proceedings to the effect that such notice was posted. Without such posting the election was void, and the subsequent declaration of the board of supervisors to the effect that the Templeton sanitary district was duly organized is a nullity.
As it is only the evidence that was heard by the board of supervisors upon questions essential to their jurisdiction that can be considered by the court in determining whether the board acquired jurisdiction, it is obvious from the parol testimony hereinbefore recited that it would have been useless for the court to require an additional or amended return, and no leave to make an amended return having been requested, we advise that the judgment and order appealed from be reversed, and that judgment be entered annulling all the orders, records, and proceedings of the board of supervisors in the matter of the alleged creation of Templeton sanitary district, in said county of San Luis Obispo.
Gray, C., and Chipman, C., concurred.
For the reasons given in the foregoing opinion it is ordered that the judgment and order appealed from be reversed, and that judgment be entered annulling all the orders, records, and proceedings of the board of supervisors in the matter of Templeton sanitary district, and adjudging that said district has no legal existence.
McFarland, J., Henshaw, J., Temple, J.