may, in its discretion, grant time for replying. If the answer, or answer and reply, raise only questions of law, or put in issue immaterial statements, not affecting the substantial rights of the parties, the Court must proceed to hear, or fix a day for hearing, the argument of the case. If the succeed, he applicant may have costs, and a peremptory 1095. (§ 477.) If judgment be given for the applicant, he may recover the damages which he has sustained, as found by the jury, or as may be determined by the Court or referee, upon a reference to be ordered, mandate. together with costs; and for such damages and costs an execution may issue; and a peremptory mandate must also be awarded without delay. the writ. 1096. (§ 478.) The writ must be served in the Service of same manner as a summons in a civil action, except when otherwise expressly directed by order of the Court. Service upon a majority of the members of any Board or body, is service upon the Board or body, whether at the time of the service the Board or body was in session or not. 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. Prohibition defined. Where and when issued. Writ may be alterna emptory. CHAPTER III. WRIT OF PROHIBITION. SECTION 1102. Prohibition defined. 1103. Where and when issued. 1104. Writ may be alternative or peremptory. Form of. 1105. Certain provisions of the preceding Chapter applicable. 1102. The writ of prohibition is the counterpart 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. 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. The writ must be either alternative or pertive or per-. emptory. 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. The provisions of the preceding Chapter, except of the first four sections thereof, apply to this proceeding. Certain of the provisions 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 may issue and be 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 of the Justices or Judge issuing the writ, be made returnable and a hearing thereon be had in vacation. heard at chambers. CHAPTER V. RULES OF PRACTICE AND APPEALS. SECTION 1109. Certain provisions of Part II applicable. 1110. Same. Certain provisions applicable. 1109. Except as otherwise provided in this Title, the provisions of Part II of this Code are applicable of Part II to and constitute the rules of practice in the proceedings mentioned in this Title. 1110. The provisions of Part II of this Code rela- Same. tive 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. Who may contest, and grounds of contest TITLE II. OF CONTESTING CERTAIN ELECTIONS. SECTION 1111. Who may contest, and grounds of contest. 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 reception 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. 1125. Costs. 1126. Appeal. 1127. When election void and office vacant. 1111. Any elector of the county may contest the right of any person declared elected to an office to be 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. larity and conduct of Judges, annul 1112. No irregularity or improper conduct in the Irregu proceedings of the Judges, or any of them, is such improper malconduct as avoids an election, unless the irregu- . larity or improper conduct is such as to procure the elections. person whose right to the office is contested to be declared elected when he had not received the highest number of legal votes. to. 1113. When any election held for an office exer- When not cised 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. votes, when vitiate 1114. Nothing in the fourth ground of contest, Illegal specified in Section 1111, is to be so construed as to not to authorize an election to be set aside on account of election. 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. 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: Proceed ings on contest. |