the words requiring the party to show cause why he has not done as commanded must be omitted and a return-day inserted.-1907-307. 1088. When the application to the court is made without notice to the adverse party, and the writ is allowed, the alternative must be first issued; but if the application is upon due notice and the writ is allowed, the peremptory may be issued in the first instance. With the alternative writ and also with any notice of an intention to apply for the writ, there must be served on each person against whom the writ is sought a copy of the petition. The notice of the application, when given, must be at least ten days. The writ cannot be granted by default. The case must be heard by the court, whether the adverse party appears or not.-1907-308. 1089. On the return of the alternative, or the day on which the application for the writ is noticed, the party on whom the writ or notice has been served may answer the petition under oath, in the same manner as an answer to a complaint in a civil action. -1907-308. 1090. If an answer be made, which raises a question as to a matter of fact essential to the determination of the motion, and affecting the substantial rights of the parties, and upon the supposed truth of the allegation of which the application for the writ is based, the court may, in its discretion, order the question to be tried before a jury, and postpone the argument until such trial can be had, and the verdict certified to the court. The question to be tried must be distinctly stated in the order for trial, and the county must be designated in which the same shall be had. The order may also direct the jury to assess any damages which the applicant may have sustained, in case they find for him. 1091. On the trial, the applicant is not precluded by the answer from any valid objection to its sufficiency, and may countervail it by proof either in direct denial or by way of avoidance. 1092. The motion for new trial must be made in the court in which the issue of fact is tried. 1093. If no notice of a motion for a new trial be given, or if given, the motion be denied, the clerk, within five days after rendition of the verdict or denial of the motion, must transmit to the court in which the application for the writ is pending, a certified copy of the verdict attached to the order of trial; after which either party may bring on the argument of the application, upon reasonable notice to the adverse party. 1094. If no answer be made, the case must be heard on the papers of the applicant. If the answer raises only questions of law, or puts 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.-1873-345. 1095. 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, together with costs; and for such damages and costs an execution may issue; and a peremptory mandate must also be awarded without delay; provided, however, that in all cases where the respondent is a state, county or municipal officer, all damages and costs, or either, which may be recovered or awarded, shall be recovered and awarded against the state, county or municipal corporation represented by such officer and not against such officer so appearing in said proceeding, and the same shall be a proper claim against the state, or county, or municipal corporation for which such officer shall have appeared, and shall be paid as other claims against the state, county or municipality are paid; but in all such cases, the court shall first determine that the officer appeared and made defense in such proceeding in good faith.-1913-359. 1096. The writ must be served in the 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. 1097. When a peremptory mandate has been issued and directed to any inferior tribunal, corporation, 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 until the writ is obeyed, and may make any orders necessary and proper for the complete enforcement of the writ.-1873-345. 1102. The writ of prohibition is the counterpart of the writ of mandate. It arrests the proceedings of any tribunal, corporation, board, or person exercising judicial functions, when such proceedings are without or in excess of the jurisdiction of such tribunal, corporation, board or person.-1919-291. 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 the verified petition of the person beneficially interested.-1907-838. 1104. The writ must be either alternative or peremptory. The alternative writ must command the party to whom it is directed 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, a return-day inserted.-1907-838. 1105. The provisions of the preceding chapter, except of the first four sections thereof, apply to this proceeding. CHAPTER IV. Writs of Review, Mandate, and Prohibition. Issuance, Return, and Hearing. Section 1108. Writs of review, mandate, and prohibition may issue 1108. Writs of review, mandate, and prohibition issued by the supreme court, or by a superior court, may, in the discretion of the court issuing the writ, be made returnable, and a hearing thereon be had at any time.--1880-74. Section CHAPTER V. Rules of Practice and Appeals. Section 1109. Certain provisions of part 1110a. Appeal from writ of mantwo applicable. date ordering delivery of water. 1110. Same. 1109. Except as otherwise provided in this title, the provisions of part two of this code are applicable to and constitute the rules of practice in the proceedings mentioned in this title. 1110. The provisions of part two 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. 1110a. If an appeal be taken from an order or judgment directing the issuance of a writ of mandate commanding a party to deliver water, for irrigation purposes, such appeal shall not stay the operation of the order, judgment or writ as to the delivery of such water, but such water must, until the final determination of said appeal, be delivered as commanded by said writ; provided, that if any expense is necessary to be incurred by the defendant in connecting the water supply with the land to be irrigated, said defendant shall not be obliged to furnish water unless the plaintiff shall provide a bond in such sum as the court may fix, conditioned that in the event of the judgment being reversed, plaintiff will pay defendant the amount of the expense so incurred not exceeding the amount of said bond.-1919-754. Section TITLE II. Contesting Certain Elections. 1111. Who may contest, and grounds of contest. 1112. Irregularity and improper conduct of judges, when to annul elections. 1113. When not to. Section 1120. Witnesses; attendance of, how enforced. 1121. Power of court. Adjournment of court. 1122. Rules to govern court in trial of contest. 1114. Illegal votes, when not to 1123. Certificate of election to vitiate election. 1115. Proceedings on election contest. whom must be issued. 1124. In case of tie vote, who may contest proceedings. 1116. Statement of cause of con- 1124. When canvassing board de test in illegal voting. 1117. Statement of cause of con test. Want of form not to 1118. Court to set day to hear clares no election, who may contest. 1125. Costs. 1126. Appeal. pending. Entitled to office 1126. Appeal. office vacant. 1118. Special session of court to 1127. When election void and contested election. hear contest. 1119. Clerk to issue citation to respondent. 1111. Any elector of a county, city and county, city, or of any political subdivision of either, may contest the right of any person declared elected to an office to be exercised therein, 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 four, part one, of the Penal Code. 4. On account of illegal votes.-1875-100. as to 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 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. 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. 1114. Nothing in the fourth ground of contest, specified in section eleven hundred and eleven, is to be so construed as to author ize 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. 1115. When an elector contests the right of any person declared elected to such office he must 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. Such statement must be verified by the contesting party as provided by section four hundred and forty-six of this code, and must be filed within thirty days after the declaration of the result of the election by the body canvassing the returns thereof, except in cases where the contest is brought on any of the grounds mentioned in subdivision three of section one thousand one hundred and eleven, when it must be brought within six months after the declaration of the result of the election by the body canvassing the returns thereof.-1909-719. 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 voting precincts 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 list.-1880-74. 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 certainty as will advise the defendant of the particular proceeding or cause for which such election is contested. 1118. Upon the statement being filed, the county clerk must inform the superior court of the county thereof, which shall thereupon set some day to be named by it, not less than ten nor more than twenty days from the date of such order, to hear and determine such contested election.-1907-564. 1118. Within five days after the end of the time allowed for filing such statements the county clerk must notify the superior court of the county or city and county of all statements filed. The court shall thereupon order a special session to be held, on some day to be named by it, not less than ten nor more than twenty days |