Penalty for disobe to the writ. 1097. (§ 479.) When a peremptory mandate has been issued and directed to any inferior tribunal, cor- dience poration, Board, or person, if it appear to the Court that any member of such tribunal, corporation, or Board, or such person upon whom the writ has been personally served, has, without just excuse, refused or neglected to obey the same, the Court may, upon motion, impose a fine not exceeding one thousand dollars. In case of persistence in a refusal of obedience, the Court may order the party to be imprisoned for a period not exceeding three months, and may make any orders necessary and proper for the complete enforcement of the writ. If a fine be imposed upon a Judge or officer who draws a salary from the State or county, a certified copy of the order must be forwarded to the Controller, or County Treasurer, as the case may be, and the amount thereof may be retained from the salary of such Judge or officer. NOTE. For rules of practice and appeals, see Secs. 1109, 1110, post. For costs, see Secs. 1022, 1024, ante. CHAPTER III. WRIT OF PROHIBITION. SECTION 1102. Prohibition defined. 1103. Where and when issued. 1104. Writ may be alternative or peremptory. Form of. defined. 1102. The writ of prohibition is the counterpart Prohibition of the writ of mandate. It arrests the proceedings of any tribunal, corporation, Board, or person, when such proceedings are without or in excess of the jurisdiction of such tribunal, corporation, Board, or person. NOTE.-At common law the writ of prohibition was issued by a superior Court, directed to the Judge of and 4-VOL. II. Where and when issued. Writ may be alterna parties to a suit in an inferior Court, commanding them to cease from the prosecution of the same, upon a suggestion that the cause originally, or some collateral matter arising therein, does not belong to that jurisdiction, but to the cognizance of some other Court. 3 Black. Com., p. 112; 2 H. Black. R., p. 533. Or when the inferior Court having jurisdiction is attempting to proceed by rules differing from those it ought to have observed.-Buller's N. P., p. 219. Or when by the exercise of its jurisdiction the inferior Court would defeat a legal right.-2 Chitty's Pr., p. 355. 1103. It may be issued by any Court except Police or Justice's 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. 1104. tive or per- emptory. emptory. NOTE.-1. JURISDICTION.-The Supreme Court has original jurisdiction in prohibition.-Tyler vs. Houghton, 25 Cal., p. 26. Or it may use the writ in aid of its appellate jurisdiction.-People vs. Turner, 1 Cal., p. 143. 2. AFFIDAVIT.-The affidavit must state that the affiant has either knowledge or information as to the matters stated in the petition.-Cariaga vs. Dryden, 30 Cal., p. 244. 3. PERSON BENEFICIALLY INTERESTED.-See Subd. 2 of note to Sec. 1086, ante. The writ must be either alternative or perThe 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. provisions 1105. The provisions of the preceding Chapter, Certain except of the first four sections thereof, apply to this of the proceeding. NOTE. For rules of pleading, see Secs. 1109, 1110, post. For costs, see Secs. 1022, 1024, ante. preceding Chapter applicable. CHAPTER IV. WRITS OF REVIEW, MANDATE, AND PROHIBITION MAY ISSUE SECTION 1108. Writs of review, mandate, and prohibition may issue and be heard at chambers. review, and 1108. (§ 653.) Writs of review, mandate, and Writs of prohibition may be issued by any three of the Jus- mandate, tices of the Supreme Court, or by any District or prohibition County Judge, in vacation, and may, in the discretion and be of the Justices or Judge issuing the writ, be made returnable and a hearing thereon be had in vacation. NOTE. Since this section was originally prepared, the Supreme Court held, in Smith vs. City of Oakland, 40 Cal., p. 481, that these writs could only issue from the Supreme Court; that the Justices thereof, as such, could not direct their issuance. To avoid the effects of the decision in that case, Sec. 48 of this Code declares that for the purpose of issuing such writs the Supreme Court is always open and in session. Sec. 1108 should have been changed to conform with Sec. 48 in letter, but the literal discrepancy was not noticed until too late. In substance, both are the same, for three Justices may make an order of Court.-See Sec. 46, ante. That the District and County Judges may issue and hear such writs at chambers was affirmed in Brewster vs. Hartley, 37 Cal., p. 15. See Sec. 166, ante. may issue heard at chambers. Certain provisions applicable. CHAPTER V. RULES OF PRACTICE AND APPEALS. SECTION 1109. Certain provisions of Part II applicable. 1110. Same. 1109. Except as otherwise provided in this Title, of Part II the provisions of Part II of this Code are applicable to and constitute the rules of practice in the proceedings mentioned in this Title. Same. 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 recep tion 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 contest. 1123. Court may declare who was elected. 1125. Costs. 1126. Appeal. 1127. When election void and office vacant. contest, and of contest. 1111. Any elector of the county may contest the Who may right of any person declared elected to an office to be grounds exercised in and for such county; and, also, any elector of a township may contest the right of any person declared elected to any office in and for such township, for 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 the office is contested was not, at the time of the election, eligible to such office; 3. When the person whose right is contested has given to any elector or Inspector, Judge, or Clerk of the election, any bribe or reward, or has offered any such bribe or reward for the purpose of procuring his election, or has committed any other offense against the elective franchise defined in Title IV, Part I of THE PENAL CODE; 4. On account of illegal votes. NOTE.-Stats. 1850, p. 101. See Title "Elections," 1. Subd. 1.-Mere irregularities, which do not affect 2. Subd. 2.-Saunders vs. Haynes, 13 Cal., p. 145; |