Opinion
Docket No. 6913.
May 20, 1929.
PROCEEDING in Mandamus to require the City Councilmen of the City of Albany to act upon an annexation petition to determine whether a special election should be called.
The facts are stated in the opinion of the court.
Clark, Nichols Eltse for Petitioner.
Lovett K. Fraser for Respondents.
This is a proceeding in mandamus to require respondents to act upon an annexation petition with a view to determining whether a special election should be called to vote upon the proposition of annexation.
The respondents, by demurrer and answer, have presented but two excuses for their failure to act which require consideration.
[1] First, it is pleaded that another action of the same character is pending. In October, 1928, a similar petition was filed with these respondents, asking them to call a special election for the same purpose. Having refused to act upon the petition a proceeding in mandamus was instituted in the first division of the district court of appeal. This was decided adversely to petitioners on March 15, 1929, and the judgment therein is now final. ( Carter v. Green, 97 Cal.App. 564 [ 276 P. 120].) Assuming that the two actions are of the same character, so that the pendency of the first action would support a plea in abatement to the second, such plea is no longer available when the former action is no longer pending.
[2] Second, it is argued that the petition for mandate herein does not sufficiently allege demand made upon the respondents to perform the acts sought by this proceeding. Without engaging in a technical discussion of the pleadings it is sufficient to say that no specific demand was necessary, because the respondents are here acting under a statute for the benefit of the public in general and without any private or personal interest in the subject matter. In such cases the law itself stands in lieu of a specific demand. ( Wilson v. Board, etc., 138 Cal. 67, 69 [ 70 P. 1059]; Thoits v. Byxbee, 34 Cal.App. 226, 236 [ 167 P. 166]; Jensen v. McCullough, 94 Cal.App. 382 [ 271 P. 568, 571].)
Let a writ issue as prayed.
Koford, P.J., and Sturtevant, J., concurred.
A petition for a rehearing of this cause was denied by the District Court of Appeal on June 17, 1929, and a petition by respondent to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on July 18, 1929.
All the Justices present concurred.