Alden v. Superior Court In and For San Luis Obispo County

• Decision Date: 07 February 1963
• Citation: 28 Cal.Rptr. 387,212 Cal.App.2d 764
• Court: California Court of Appeals Court of Appeals
• Parties: A. M. ALDEN, Franklin B. Drysdale, Clarence Garms, Frank McAllaster and Louis S. Woolman, Petitioners, v. The SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF SAN LUIS OBISPO, Respondent; William C. TABB et al., Real Parties in Interest. Civ. 26875.

Page 387

28 Cal.Rptr. 387

212 Cal.App.2d 764

A. M. ALDEN, Franklin B. Drysdale, Clarence Garms, Frank McAllaster and Louis S. Woolman, Petitioners, v. The SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF SAN LUIS OBISPO, Respondent William C. TABB et al., Real Parties in Interest.

Civ. 26875.

District Court of Appeal, Second District, Division 3, California.

Feb. 7, 1963.

Lloyd E. Somogyi, San Luis Obispo, for petitioners.

No appearance for respondent.

Shipsey & Seitz and John L. Seitz, San Luis Obisp, for real parties in interest.

FILES, Justice.

The directors of the Morro Del Mar County Water District have petitioned this court for a writ of prohibition to halt further proceedings in an injunction action which is now pending against them. Real parties in interest are the citizens who commenced the action in the respondent superior court to enjoin the operation of the district on the ground that the formation election was not lawfully conducted. The facts, as recited in the petition here, are not in controversy.

On February 19, 1962, a petition was filed with the County Clerk of San Luis Obispo County asking the formation of a water district in accordance with the provisions of Division 12 of the Water Code (section 30000 et seq.). The preliminary steps were completed as required by statute and on June 26, 1962, an election was held, pursuant to Water Code, section 30290, to submit to the electors the question of whether the district shall be formed, and to elect the first directors. The canvass of votes indicated that a majority favored the organization. Thereafter the board of supervisors adopted a resolution declaring the district to have been duly organized and the petitioners to have been duly elected as its directors. Appropriate papers were then filed with the Secretary of State of the State of California who, on July 31, 1962, issued his certificate reciting that the district had been duly incorporated.

The purpose of the proponents of the incorporation was that the new county water district would take over the business and assets of Waterworks District No. 4, which district is located entirely within the boundaries of the newly created district. Accordingly, a petition was submitted to the board of supervisors of the county requesting that the board convey the property of Waterworks District No. 4 to the new district, and that the old Waterworks District be dissolved. This application is still pending, action by the board of supervisors having been held up awaiting the outcome of this litigation.

On September 7, 1962, a civil action was commenced in the respondent superior court by the group of citizens who are the real parties in interest here, against the persons who had been declared elected directors. The complaint in that action alleged that all of the ballots cast at the election of June 26, except the absentee ballots, were illegal and contrary to article II, section 5, of the California Constitution, which provides: 'All elections by the people shall be by ballot or by such other method as may be prescribed by law; provided, that secrecy in voting be preserved.' It was alleged that all of the ballots were printed on paper of such weight and composition that an election inspector or any person could observe how any voter had voted when the folded ballots were handed to the election inspector; and that the only legal votes were those cast by absent voters' ballots, a majority of which were opposed to incorporation. The complaint prayed a judgment declaring that the proposition for incorporation had been defeated, and enjoining the defendants from exercising any of the powers of directors.

The defendants demurred to this complaint and the plaintiffs applied to the superior court for a preliminary injunction. Both matters came on for hearing at the same time. Oral testimony was taken and a sample of the ballots used at the June 26 election was received in evidence. A member of an election board testified that after each voter had marked his ballot, the voter folded his ballot and handed it to the inspector, who tore the number tab from the ballot, returned the tab to the voter and then deposited the ballot in the ballot box. There was no evidence that anyone did attempt to discover how anyone else voted, or that any voter had objected to a lack of secrecy when he voted. According to the witness, at no time did any inspector or other election official attempt to inspect any ballot to determine how the voter had voted before depositing it in the box.

Thereafter, on October 26, the judge of the respondent court filed a written opinion in which he stated that it was obvious that the paper used in the ballot was so transparent that the vote could be detected through the folded paper. The opinion concluded that the ballots cast in this manner violated the requirement of the state Constitution that secrecy in voting be preserved; that the election 'must be declared invalid and void in toto,' and that the superior court had jurisdiction to grant relief in that action.

The record in this court does not disclose whether the respondent court has yet made a formal ruling on the demurrer or on the application for a preliminary injunction. This court will assume, as do the parties, that the respondent court will proceed to grant relief consistent with its October 26 opinion unless restrained by a higher court.

If the defendants in the injunction suit (petitioners here) were lawfully elected as directors of a lawfully constituted water district, then the injunction which the respondent court proposes to issue would prevent the exercise of a public office. Such an injunction would violate Civil Code, section 3423, subdivision Sixth, and Code of Civil Procedure, section 526. Where a court threatens by injunction to interfere with the functioning of another branch of the government, a proceeding by writ of prohibition is a proper means of testing the propriety of the proposed injunction. (Santa Clara County v. Superior Court, 33 Cal.2d 552, 559, 203 P.2d 1.) Furthermore, where the public interest requires a speedy determination of the question, the remedy by appeal is inadequate, and the more speedy review by extraordinary writ is in the interest of justice. In this case it appears that an application for the dissolution of a waterworks district is pending, and that it is of some importance to the citizens of the area to have it determined which entity may lawfully furnish their water. Upon these considerations this court issued its alternative writ of prohibition to bring the matter here.

Preliminarily, it should be observed that the action in the superior court is not an election contest within the meaning of the Elections Code, or any other statute. A proceeding to contest an election may be brought only when and as authorized by statute. (Carlson v. Burt, 111 Cal. 129, 132, 43 P. 583; Castle Rural County Fire P. Dist. v. Superior Court, 105 Cal.App.2d 816, 234 P.2d 726.) Division 12 of the Water Code, under which this district was organized, contains no provision for a court contest of the formation election.

The injunction suit is a kind of attack upon the legal existence of a public corporation which the plaintiffs, as private citizens, have no standing to maintain. Code of Civil Procedure, section 803, authorizes an action to be brought by the Attorney General, in the name of the People of the state, against any person who unlawfully holds any public office or any corporation, whether de jure or de facto, which unlawfully exercises any franchise within the state. This remedy, commonly known as quo warranto, is the only kind of proceeding in which the legal existence of this county water district may be questioned, once it has acquired de facto status under the certificate issued by the Secretary of State on July 31. (See San Ysidro Irr. Dist. v. Superior Court, 56 Cal.2d 708, 713-715, 16 Cal.Rptr. 609, 365 P.2d 753, and authorities cited there.)

Real parties in interest argue that since the water district is new and has not been shown to have as yet acquired property or incurred indebtedness, it has not yet acquired de facto status. Water Code, section 30323, states:

'From and after the date of the certificate of the Secretary of State, the district named therein is incorporated as a county water district with all the rights, privileges, and powers set forth in this division and necessarily incident thereto.'

The record here shows that this certificate has been issued and that the members of the board of directors have qualified. This is enough to place the formation procedure beyond attack by an individual acting on his own behalf. (See Williams v. McClellan, 119 Cal.App.2d 138, 143, 259 P.2d 12.) The effect of the certificate, and the purpose of the law, is to give to the corporation a color of right under which to commence carrying out its public responsibilities, unless and until the Attorney General, acting in the name of the People, challenges the...