People Ex Rel. Escalle v. Town of Larkspur

This is an action in quo warranto calling upon the corporation of the town of Larkspur to show cause for the exercise of the franchise under which it is acting, failing in which that an ouster be decreed. The defendant haa judgment, from which plaintiff appeals.

It is alleged in the amended complaint that the town of Larkspur is and has been, since March 2, 1908, a de facto (but not a de jure) municipal corporation, claimed to be a legally organized municipal corporation, by virtue of certain proceedings taken under the municipal incorporation act, approved March 13, 1883, and amendments thereto, and by virtue of certain articles or an order of incorporation issued by the board of supervisors of the county of Marin and filed in the office of the Secretary of State, and that certain trustees have been elected and are now pretending to be the officers of said de facto municipal corporation, and ever since said second day of March, 1908, “have usurped and intruded upon, and municipally exercised the following franchise, to wit: That of assessing, levying and collecting municipal taxes and exercising municipal and governmental control over the following described premises and real…

I dissent from the order denying a rehearing of this cause.

The electors of the territory claiming to he a corporation having been deprived by the misconduct of the election board of the opportunity of casting their votes, which the law is intended to secure to them, the omis of proving that the result of the election would have been the same if the law had been strictly complied with was on the defendant. This proof the defendant undertook to make by showing that from the total number of registered voters within the territory affected (viz., 297), there must be deducted four who had died, 17 whose registry had been canceled, 86 removed from the territory, 10 who had voted, but had not voted on the question of incorporation, and 10 who were indifferent and would not have voted under any circumstances—a total of 127, leaving but 170 electors to be considered, of whom 89—a majority—voted in favor of the incorporation. But conceding that the statute is not mandatory in respect to the hours during which the polls must be kept open—a proposition by no means clearly established—and that all of the 86 supposed removals were fully proven—a point vigorously contested by the appellant-^-…