Opinion
Application to the Supreme Court for writ of mandate to compel the Board of Supervisors of the County of Alameda to make an order calling an election to determine the question of the removal of the county seat, under sections three thousand nine hundred and seventy-six to three thousand nine hundred and eighty-five of the Political Code.
On the 10th day of December, 1872, a petition was presented to the Supreme Court, praying for an alternative writ of mandate to the Board of Supervisors of Alameda County. The petition stated that, on the 22d day of October, 1872, the relator presented to said Board a petition praying for an election to be called for a removal of the county seat from San Leandro, where it was fixed by law; that such petition was signed by one thousand four hundred and fifty-two residents and electors of said county, whose names were on the Great Register, and that they composed more than one third of all the votes cast in Alameda County at the last pending general election, and that, at the time of presenting the petition, the relator also presented proof that the persons who signed it were electors of said county, and their names were on the Great Register, and that the names of the petitioners were signed by themselves, and that four thousand and sixty were the whole number of votes cast in said county at the last preceding election, and that said Board refused to call the election.
The answer admitted the presentation of a petition, and averred that some of the names affixed to the petition were placed there by persons other than petitioners, and without their assent, and denied that it was made to appear to the Board that the persons whose names were on the petition signed it, or that any testimony was offered to the Board that the signatures to the petition were genuine, or that one thousand four hundred and fifty-two electors, whose names were on the Great Register, signed it. The answer also alleged that, excepting the fact that names similar to those on the Great Register were found on the petition, no proof of identity was offered. The answer also denied that the Board of Supervisors were satisfied with the proof offered to establish the facts stated in the petition, and alleged that the Board was not satisfied, and that more than one hundred persons who signed the petition were, and now are, opposed to the petition being used or acted upon by the Board.
The petitioner moved for a peremptory writ on the pleadings, and also moved to strike out the answer as sham, false, and frivolous, and because the denials were made upon information and belief. Affidavits were filed by the petitioner in support of the proposition that the answer was false, sham, and frivolous.
COUNSEL
Foote & Haight, for Relator.
A. A. Moore, District Attorney of Alameda County, and William Irvine, for Respondents.
JUDGES: Wallace, C. J.
OPINION
WALLACE, Judge
The motion of the petitioner for a peremptory writ of mandamus upon the pleadings is denied.
The motion to strike out the answer of the respondents is sustained, except as to that portion of the answer which is in the following words, viz.:
" And denies, upon information and belief, that there were, in fact, the number of one thousand four hundred and fifty-two, or other number equal to one third of all the votes cast at the last preceding general election in said county of genuine names of electors of said county, signed to the said petition, whose names were on the Great Register of said county; " and as to the recited portion of said answer the said motion is denied.
It is ordered that the following question of fact be tried: Was the petition (alleged in the application for the writ to have been presented to the Board of Supervisors of Alameda County) signed by as many as thirteen hundred and fifty-five persons, who were, at the time of such signing, qualified electors of the County of Alameda?
It is further ordered, that the aforesaid question be tried before a jury in the District Court of the Twentieth Judicial District, in and for the County of Santa Clara, as soon as the current business of the Court will permit; that a certified copy of the petition on file in this Court, praying a writ of mandamus, together with a certified copy of this order, be transmitted forthwith to the Clerk of the said District Court of the Twentieth Judicial District, in and for the County of Santa Clara.
And it is further ordered, that the said District Court, upon the application of either party, by subpoena duces tecum, or appropriate order, cause the original petition, and such other records of the Board of Supervisors of the County of Alameda, as may be necessary, and also the great Register of the County of Alameda, if the same be necessary, to be produced before the said Court, at the trial of said question.
And it is further ordered, that the verdict upon said question be certified to this Court in due form, and that the further hearing of the application in this behalf be postponed until said trial by jury be had, and the verdict certified and returned as aforesaid.