This is an appeal from a judgment denying petitioner’s application for a writ of mandamus. The proceeding was instituted for the purpose of compelling the payment of a judgment which the petitioner theretofore had recovered against the Fontana County Fire Protection District, and against one George Calkins, asserted to be the agent or employee of the district.

A hearing was granted by this court after decision by the District Court of Appeal, on rehearing, -in which that court upheld the judgment of the trial court denying issuance of a peremptory writ upon the ground that the peremptory writ, if issued, could not be made to conform legally to the exact terms of the alternative writ—the hearing having been granted herein in order to give further consideration to the several questions presented on the appeal. After a review of the entire record we conclude that the first opinion prepared by the District Court of Appeal, and filed on February 8, 1939, correctly expresses the views of this court with respect to the principal issues presented by the appeal. Therefore, we shall incorporate hereinafter, as a part of this opinion, certain portions of the language of that decision.

It appears that on May 23, 1923, an act of the legislature (Stats. 1923, p. 431) with relation to the organization and maintenance of fire protection districts was approved by the governor, and in due course thereafter became the law of this state.

Briefly, as far as here seems essential to be noted in that respect, the provisions of the act authorize the board of supervisors of any county of the state to proceed in a specified manner toward the formation and organization of fire protection districts within the county; and in the event that any objection be made to the proposed creation of any fire protection district, the board is authorized to call and conduct an election by the qualified voters of the proposed district on the question whether the organization and establishment of such district shall become effective. The act also provides that the board of supervisors “shall be the governing body” of the district; and among the various powers and duties of such body as are therein specified is included the right to appoint “agents and employees ... to police the district”, and “to perform all other acts necessary or proper to accomplish the purposes” of the act. (Emphasis added.) By the terms of the act the said governing body is also authorized “to maintain and operate the property acquired for the purposes of the district”, as well as to “acquire real or personal property needful for the purposes of said district and to dispose of the same when no longer needed”,—the title to such properties to be vested in the county in which such district is located. Furthermore, power is conferred upon the board of supervisors to levy taxes on the taxable property in the district to defray the cost of maintenance and other expenditures of the district; and, in specified circumstances, procedure is outlined for the dissolution of the district, the determi nation of which is effected by a majority vote of the voters of the district,—and for the disposition of the property of the district in the event of such dissolution.

In 1925 (Stats. 1925, p. 671) the original act was amended, by which it was provided that the board of supervisors be retained as the “governing body” of a fire protection district, also that the said board might appoint five commissioners as its agents to manage the affairs of the district and to exercise any or all of the powers therein specified.

However, by a further amendment to the act noted in statutes of 1931, page 1599, the provision which related to the appointment by the board of supervisors of “five commissioners as its agents to manage the affairs” of the district was deleted from the act,—which alteration had the probable effect of restoring the pertinent original provisions of the act with respect to the management of the district by the said board.

Pursuant to such statute and the 1925 amendment herein-before referred to, on April 16, 1928, the board of supervisors of San Bernardino County adopted a resolution by which it was declared that the respondent Fontana County Fire Protection District had been duly established; and thereafter, on April 20 of the same year, the said board of supervisors appointed a board of fire commissioners for that district,—the members of which board assumed office and thereafter continued to serve in their appointive capacity as such board of fire commissioners for the district, at least up to and including the date of the commencement of the action against Calkins and the district which resulted in the rendition of the judgment here sought to be enforced.

With regard to the last-mentioned judgment, it appears that on or about October 3, 1935, appellant herein, as plaintiff, commenced an action in the Superior Court of San Bernardino County against George Calkins, the Fontana County Fire Protection District, the county of San Bernardino, and others (as to whom the action was later dismissed), to recover a judgment for damages asserted to have arisen from personal injuries alleged to have been sustained by plaintiff through the negligence of defendant Calkins in the operation of a certain “Willys Knight” automobile. The complaint filed therein contained allegations to the effect that “the defendant, The Fontana County Fire Protection District, . . . was, and now is, a body politic and a district organized and exist ing pursuant to a statute of the State of California, approved May 23rd, 1923; Statutes of 1923, Page 431 thereof, as amended”; also that the defendant, George Calkins, was the owner of the aforementioned automobile “and that at all times herein mentioned, . . . the Defendant George Calkins was an officer, agent and employee of the said District, . . . and was driving and operating the said ‘ Willy s Knight’ [automobile] within the scope of his office, agency and employment as such officer, agent and employee . . . and on behalf of said District . . . and with the knowledge and consent of [the latter]”. By its answer to said complaint the defendant Fontana County Fire Protection District specifically admitted the truth of each and all of said allegations.

On the trial of the mandamus action, the following facts were stipulated: That before the former action came to trial it was dismissed as against the county of San Bernardino; that the defendants George Calkins and the fire protection district appeared at the trial, pursuant to which a judgment for $3,500 and costs was entered in favor of plaintiff and against George Calkins and the said district; that the judgment had become final as no appeal therefrom had been taken; and that “said George Calkins was, at the time of said collision, acting as a volunteer fireman for said Fontana County Fire Protection District, by appointment of one Earl Reeves, who was then and there acting in the capacity of Fire Chief of the Fontana Volunteer Fire Department; that said Earl Reeves was acting as such Fire Chief under appointment by the aforementioned Fire Commissioners”.

The answer of the several respondents herein to the petition for the writ of mandamus discloses the fact that their principal defense and objection to its issuance consisted in the alleged invalidity of the judgment which theretofore had been rendered in favor of plaintiff against the Fontana County Fire Protection District,—for the reason, as asserted by them, that the district is not “an entity against which such a judgment can be rendered, and that there is no provision in law for the rendition of such a judgment against said Fontana County Fire Protection District predicated upon the negligence of said George Calkins, and that the records and proceedings in [the] action show upon their face that the said judgment is void”; also for the asserted reason that “there is no provision in law for collecting any such judgment against said Fontana County Fire Protection District”, it not being “a body politic or a district which can be sued ... ”. By amended answer to the petition for the writ, certain of the respondents further alleged, in addition to the foregoing, that “the said 1 Fontana County Fire Protection District’ is not . . .- a public corporation, a body politic or a district established by law, or a subdivision of the State of California, . . . also “that the said George Calkins was not . . . appointed by the Board of Supervisors as an agent, officer or employee of said Fontana County Fire Protection District, and upon information and belief these respondents allege that at no time mentioned in said complaint was said George Calkins an officer, agent or employee of said Fontana County Fire Protection District, nor was he at any of the times mentioned in said complaint acting within the scope of any agency or employment under said Fontana County Fire Protection District, and that if he were then assuming to so act, he was doing so without authority and without being appointed, employed or authorized so to do”. (Emphasis added.)

The trial court made its findings of fact and conclusions of. law strictly in accordance with the said defense of the respondents to the writ, in that its findings of fact recited “that the said Fontana County Fire Protection District is not a body politic, nor is it a county or a city; nor is it a district against which any suit or action can be maintained or prosecuted; that said Fontana County Fire Protection District has no legal entity, nor legal status as an entity, and had no authority to employ agents or servants, nor to contract any liability, either directly or indirectly, for which such district would be liable; that no provision has been made in law or otherwise for the payment of any judgment rendered or entered against such district”; furthermore, “that, there is no statute or law which authorized the bringing or prosecution of the action by petitioner against Fontana County Fire Protection District, in which action the aforesaid judgment was rendered, and that such judgment is without force or effect insofar as said district is concerned”. In other words, the respondents to the petition alleged, and the trial court found and declared as its conclusions of law, that Fontana County Fire Protection District was not a body politic nor a legal entity; that it had no authority to employ agents or servants; and that, as such, no suit or action might be maintained or prosecuted against it. In accordance therewith the trial court rendered the judgment which is the subject of the instant appeal, to wit, that the petitioner was “not entitled to the relief prayed for and that the application for a writ of mandamus be denied, . . . ”.

We here quote from the first decision of the District Court of Appeal hereinbefore referred to (reported in (Cal. App.) 87 Pac. (2d) 426 ), which includes further consideration of the points raised on this appeal by the respective parties:

Additionally, as hereinbefore has been stated, as no appeal was taken from the original judgment it long since had become final and, in accordance with the above rulings, it is not now open to what amounts to no more than a collateral attack by the respondents herein.

From the foregoing, therefore, it becomes apparent that, notwithstanding the question with respect to the existence or nonexistence of the board of fire commissioners at the time the action was originally instituted, the board of supervisors nevertheless was the governing body of the respondent district and, as such, had full authority to pay plaintiff’s judgment if there was money properly available therefor,—or, if funds were not available, to levy a tax for that purpose upon the taxable real property within the district. The obvious purpose of the mandamus proceeding was to enforce the payment of petitioner’s judgment, and as he had a substantial right to protect we should not deny him relief for the reason that either by the terms of his prayer, or by those of the alternative writ, it was assumed that the board of fire commissioners was or might be then in existence and possessed of the authority to act for or on behalf of the district in the matter of the payment of said judgment. In that regard it appears that petitioner also asked relief against the duly constituted board, to wit, the board of supervisors. Furthermore, it appears that the prayer of the petitioner contained a request for general relief. In a proper ease this court may pursue the exception to the general rule that a peremptory writ will not issue where it legally cannot follow the directions set forth in the alternative writ. (Larkin v. Superior Court, 171 Cal. 719 [ 154 Pac. 841 , Ann. Cas. 1917D, 670].) Where principles of justice and fairness may require its issuance, the writ may issue in an appropriate case despite the provisions of the alternative writ.

Accordingly, it follows that the judgment is reversed, with instructions to the trial court to issue a peremptory writ of mandamus directed to the board of supervisors of San Bernardino County as the governing board of the Fontana County Fire Protection District, requisitioning the county auditor of San Barnardino County to draw a warrant upon funds of the said Fontana County Fire Protection District for payment of the judgment herein mentioned together with interest for the period and in the amount set forth in the alternative writ; directing the county treasurer to pay such warrant if there be sufficient money in the county treasury to the credit of the said fire protection district not otherwise appropriated; or, if there be insufficient funds to pay the said warrant, directing the board of supervisors to include the amount of such unpaid judgment, with interest and costs, in the next tax levy made or to be made by the said board on the taxable real property within the limits of the said fire district, and that the said county treasurer be ordered to pay the said warrant when such tax so levied is collected.

Respondents herein also have filed a motion for diminution of the record to have included as a part of the present record (1) the original alternative writ issued in the present action, together with (2) the judgment roll in the former action entitled Johnson v. Calkins, No. 38967. In view of the conclusions arrived at hereinbefore respecting appellant’s right to have issued a peremptory writ in accordance with the terms and in the manner heretofore indicated, and since the court in the present action has considered the effect of the said former judgment (No. 38967) the same as though the judgment roll therein had been included in the present record, the said motion for diminution is denied.

Curtis, J., Waste, C. J., Edmonds, J., Gibson, J., Carter, J., and Shenk, J., concurred.