People v. Board of Supervisors

45 Cal. 395

Opinion

By the Court, Wallace, C. J.:

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 te cum, 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.