Los Angeles herald., 1892-08-04
FROM THE SUPREME COURT,
San Pedro Will Have to Remain
An Intact City.
The Sensational Gibbs Case Not to
Be Retired.
TWO very Important Decisions Received.
cuu The City of San Pedro Writ OF
Mandate Case settled-The
Case of Rising VS.. Gibbs.

election case OF San Pedro, the opinion
being received yesterday. 1t is given
herewith:
E. Wiedwald, respondent, against Dod-
son ct AL, trustees of the town of San
Pedro, appellants. The respondent filed
a petition in the superior court praying
for q writ of mandate to compel the ap-
pellants, as trustees of the city of San
Pedro, to call special election and sub
NIT to the electors of said city the ques-
ton of excluding therefrom certain terri
tory described in the petition. After a
trial the court rendered judgment grant
ing the writ, and the trustees appeal
from the judgment.
The respondent bases the right to
maintain this proceeding upon the fact
that he is an elector and taxpayer and
real estate owner within the city. The
petition for special election was filed
on March 10, 1891, and similar petit
ton had been filed December IL, 1890,
which latter was granted by trustees,
and an election held January IL, 1891
that one Anderson filed petition in the
superior court for a writ of mandate to
compel trustees to declare result of such
election, and to certify to the secretary
of state that such election was in
favor of the exclusion of such
territory; and that said petit
tion for such writ of mandate is
still pending and undetermined. 1t
further appears from findings that the
territory described in the petition to
the trustees lin the case at barr is nearly
the whole of the said city of San Pedro,
and that il the said territory should be
excluded it would carry with it nearly
or quite nine-tenths of the population
of said city, and four members of the
board of trustees, and that the whole
number of voters left in the city of San
Pedro would not exceed thirty. 1t ap-
pears that at the last municipal cleo
tion, held in April 1890, there were 258
votes cast; and that there are five trus-
tees of said city.
Passing other points made by appel
lants, it is clear that the judgment must
be reversed upon the finding as to the
extent and the proportions OF the popu-
lation which would be excluded from
the city if the judgment were affirmed.
The court then recites that the act un-
der which the trustees acted was intend
ed to provide for an ordinary change in
city boundaries, but it was clearly not
intended as as means by which city
might be practically disincorporated.
To interpret the stat
ute as contemplating such q
result - disincorporation would be
to violate the maxim, dui
haeret in litera, haeret in cortice.
Counsel for respondent say that it would
be difficult to establish a line so as to
distinguish the extent of territory and
amountof population that may be ex-
cluded. That is no doubt true; but if
we imagine such line drawn with the
utmost liberality, we shall still find the
case at bar on the wrong side Of it. In
applying the principle, each case must
be determined upon its own facts.
After quoting numerous authorities,
the supreme judges state that the case
at bar is an attempt to compel COM
pliance with the letter of the law against
its plain intent and spirit. The writ of
mandate should not be used to wrong
fully wrest a statute from it's true pur-
pose. The judgment of the lower court
is reversed.
NO NEW TRIAL FOR GIBBS.
A supreme court opinion was re.
ceived by Clerk Ashmore yesterday in
the rather sensational case in which ex-
Councilman Gibbs figured on charge
of having fraudulently abstracted deed
from the safe OF Charles E. Rising. The
judgment of the lower court, in refusing
new trial, is affirmed.
Charles Il. Rising, respondent, vs.. e.
A. Gibbs, appellant. This action is to
set aside and cancel deed, which it is
alleged, the defendant. without plain
tiffs consent, fraudulently abstracted
from a safe, where it had been deposited
in escrow by the plaintiff, pending the
completion of proposed sale OF the land,
described therein, to the defendant.
1t is further alleged in the complaint.
that after getting possession of the deed
in this fraudulent manner, the defend
ant kept it and caused it to be recorded.
That no money was ever paid for the
purchase of the property; that the de-
fendant refused, and still refuses, to
pay the consideration of the deed, 60
fraudulently obtained and recorded, or
restore the property by reconveyance to
plaintiff. 1t is prayed that the deed be
ordered delivered to plaintiff aud can
celled.
AS will be readily seen, the action is,
in it's nature, to quiet the title of the
plaintiff to his property, by ordering a
deed to be Cancelled; which had surrep-
titiously and fraudulently come to the
possession of the defendant, and had
been recorded by him to the injury OF
the plaintiff. We think the facts set
out in the complaint show a good
cause of action, and that the demurrer
was properly overruled. The point is
made that the findings are not support
ed by the evidence. The evidence for
the plaintiff fully makes out bis case,
that of the defendant is fatty contra
dictory thereto, but seems not to have
had any weight given to it by the trial
court.
The evidence as to the value of the
land, and the consideration of the pro-
posed sale, was proper to meet the con-
tention of the defendant, that the con-
sideration paid for the land described in
the deed, was the sum of $332.95, a
small and inadequate. price for it, and
which the evidence showed, on the trial,
was store account owed by the plain
TIL to defendant. We perceive no error
whatever in this record, and are of opin-
ion that the appeal is totally devoid OF
merit, and advise that the judgment and
order refusing new trial be affirmed.
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