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1104.

1105.

Writ may be alternative or peremptory. Form of. Certain provisions of the preceding chapter appli cable.

§ 1102. (N. S.) The writ of prohibition is the counterpart of the writ of mandate. It arrests the proceedings of any tri bunal, corporation, board or person, when such proceedings are without or in excess of the jurisdiction of such tribunal, corporation, board or person. 47 Cal. 82, 585.

§ 1103. (N. S.) It may be issued by any court except police or justices' courts, to an inferior tribunal or to a corporation, board or person, in all cases where there is not a plain, speedy and adequate remedy in the ordinary course of law. It is issued upon affidavit, on the application of the person beneficially interested.

30 Cal. 244.

As to jurisdiction, see §§ 43, 57 and 85.

§ 1104. (N. S.) The writ must be either alternative or peremptory. The alternative writ must state generally the allegation against the party to whom it is directed, and command such party to desist or refrain from further proceedings in the action or matter specified therein, until the further order of the court from which it is issued, and to show cause before such court, at a specified time and place, why such party should not be absolutely restrained from any further proceedings in such action or matter. The peremptory writ must be in a similar form, except that the words requiring the party to show cause why he should not be absolutely restrained, etc., must be omitted and a return day inserted.

§ 1105. (N. S.) The provisions of the preceeding chapter, except of the four first sections thereof, apply to this proceeding.

C. C. P.-31

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WRITS OF REVIEW, MANDATE AND PROHIBITION MAY ISSUE AND BE HEARD AT CHAMBERS.

SECTION 1108. Writs of review, mandate and prohibition may issue and be heard at chambers.

1108. (§ 653.)

may be issued by

Writs of review, mandate and prohibition

three of the justices of the supreme court,

or by any district or county judge in vacation, and may, in the discretion of the justices or judge issuing

writ, be made

returnable and a hearing thereon be had in vacation.

Vide §§ 143 and 165.

Stat. 1854, 72, § 65, read: "Writs of certiorari and mandamus, may be issued in the cases prescribed by said act, by a judge of the supreme court, district court, or county court, in vacations, and may in the discretion of the judge issuing the writ, be made returnable, and a hearing may be had on the return thereof in the vacation "

CHAPTER V.

RULES OF PRACTICE AND APPEALS.

SECTION 1109. Certain provisions of part two applicable.

1110. Same.

§ 1109. Except as otherwise provided in this title the provisions of Part II, of this code, are applicable to, and constitute the rules of practice in the proceedings mentioned in this title.

§ 1110. The provisions of Part II, of this code, relative to new trials and appeals, except in so far as they are inconsistent with the provisions of this title, apply to the proceedings mentioned in this title.

TITLE II.

OF CONTESTING CERTAIN ELECTIONS.

SECTION 1111. Who may contest, and grounds of contest 1112. Irregularity and improper conduct of judges, when to annul elections.

1113. When not to.

1114. Illegal votes, when not to vitiate election.

1115. Proceedings on contest.

1116. Statement of cause of contest. When based on re ception of illegal votes, contestant to deliver to respondent a list of votes claimed to be illegal. 1117. Statement of cause of contest; want of form not to

vitiate.

1118. County judge to hold special term for trial of con

test.

1119. Clerk to issue citation to respondent.

1120.

Witnesses-attendance of, how enforced. 1121. Power of court. Adjournment of court. 1122. Rules to govern court in trial of contest.

1123. Court may declare who was elected.

1124. Fees of officers and witnesses.

1125. Costs.

1126. Appeal.

1127. When election void and office vacant.

111. Any elector of the county may contest the right of any persen declared elected to an office to be exercised in and for such coun; and, also, any elector of a township may contest the right of a person declared elected to any office in and for such township, any of the following causes:

1. For malconduct on the part of the board of judges, or any member thereof.

2. When the person whose right to be office is contested was not, at the time of the election, eligible such office.

3. When the person whose right is contested has given to any elector or inspector, judge or clerk of the elect, any bribe or reward, or has offered any such bribe or reward

the purpose of procuring his election, or has committed any other offence against the elective franchise defined in Title IV, Part I, of the penal code.

4. On account of illegal votes.

Stat. 1850, 101, § 51, omitted the words in italics and inserted an additional subdivision, in the following words: "When the person whose right is contested shall have been, previous to such election, convicted of an infamous crime by any court of competent jurisdiction, such conviction not having been reversed, nor such person relieved from the legal infamy of such conviction."

Generally: 13 Cal. 145; 23 Cal. 314; 24 Cal 449; 28 Cal. 123; 30 Cal. 325; 31 Cal. 82; 34 Cal. 635 46 Cal. 401, 403.

SUB-DIVISION 1: 2 Cal. 135; 12 Cal. 352; 26 Cal. 161; 31 Cal. 82.
SUB-DIVISION 3: 27 Cal. 655.

SUB-DIVISION 4: 14 Cal. 479; 28 Cal. 123; 34 Cal. 273.

§ 1112. No irregularity or improper conduct in the proceedings of the judges, or any of them, is such malconduct as avoids an election, unless the irregularity or improper conduct is such as to procure the person whose right to the office is contested to be declared elected when he had not received the highest number of legal votes.

Stat. 1850, 101, § 52, substantially the same.

12 Cal. 352; 31 Cal. 173; 34 Cal. 273, 635.

§ 1113. When any election held for an office exercised in and for a county is contested on account of any malconduct on the part of the board of judges of any township election, or any member thereof, the election cannot be annulled and set aside upon any proof thereof, unless the rejection of the vote of such township or townships would change the result as to such office in the remaining vote of the county.

Stat. 1850, 101, § 53.

20 Cal. 50; 31 Cal. 173.

1114. Nothing in the fourth ground of contest, specified in section eleven hundred and eleven, is to be so construed as to authorize an election to be set aside on account of illegal votes, unless it appear that a number of illegal votes has been given to the person whose right to the office is contested, which, if taken from him, would reduce the number of his legal votes below the number of votes given to some other person for the

same office, after deducting therefrom the illegal votes which may be shown to have been given to such other person. Stat. 1850, 101, § 54.

§ 1115. When an elector contests the right of any person declared elected to such office, he must, within forty days after the return day of the election, file with the county clerk a written statement, setting forth specifically:

1. The name of the party contesting such election, and that he is an elector of the district, county or township, as the case may be, in which such election was held.

2. The name of the person whose right to the office is contested.

3. The office.

4. The particular grounds of such contest.

Which statement must be verified by the affidavit of the contesting party, that the matters and things therein contained are true.

Stat. 1851, 182, § 10, substantially the same, adding the words "as he verily believes."

15 Cal. 117; 30 Cal. 393; 31 Cal. 261; 43 Cal. 239; 46 Cal 403.

§ 1116. When the reception of illegal votes is alleged as a cause of contest, it is sufficient to state generally, that in one or more specified townships, illegal votes were given to the person whose election is contested, which, if taken from him, will reduce the number of his legal votes below the number of legal votes given to some other person for the same office; but no testimony can be received of any illegal votes, unless the party contesting such election deliver to the opposite party, at least three days before such trial, a written list of the number of illegal votes, and by whom given, which he intends to prove on such trial; and no testimony can be received of any illegal votes except such as are specified in such lists.

Stat. 1850, 101, § 57, substantially the same.

30 Cal. 393.

§ 1117. No statement of the grounds of contest will be rejected, nor the proceedings dismissed by any court for want of form, if the grounds of contest are alleged with such cer

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