Gunn

I concur in the judgment, an din all that is said in the opinion of Mr. Justice Fox, except in these particulars: 1. I think that the language of the opinion is too strong on the subject of strict compliance with the provisions of the constitution relating to freeholders’ charters. Because the constitution declares the provisions to be mandatory, it does not follow that a substantial compliance with them is not sufficient. The proceedings for the adoption of a charter will probably never be so literally perfect that a critical and hostile eye cannot detect in them some slight defect or irregularity, which ought not to be considered fatal. Whether or not there has been a sufficient compliance with the constitution in any particular case must depend on the particular facts of that case. In the case at bar some of the alleged failures in the proceedings are clearly immaterial. 2. As to the alleged failure to give certain citizens an opportunity to vote for the free *251 holders, I think that matter should stand upon the same footing as other elections; that is, that it should be shown that the votes of those excluded might have changed the result. In all other respects I concur in…

This action is brought under chapter 5, title 10, part 2, of the Code of Civil Procedure, to remove the respondent from the office of mayor of the city of San Diego, it being charged that respondent has . usurped and intruded into and unlawfully exercises such office. Judgment went for defendant on demurrer to the complaint, and from such judgment the plaintiff appeals.

The allegations of the complaint necessary to be considered here are: 1. That the city of San Diego is, and at all times mentioned in the complaint has been, a municipal corporation of the fourth class, organized, created, and existing under and by virtue of the general law *243 providing for the organization, incorporation, and government of municipal corporations, approved March 13, 1883, and the act to provide for the classification of municipal corporations, approved March 2, 1883; 2. That the defendant claims to have been elected mayor of said city at a pretended election held on the first Tuesday after the first Monday in April, 1889, and at which pretended election he received a majority of the votes cast for mayor; and that, claiming title to the office by virtue of such pretended election, and not…