
    [Civ. No. 4037.
    Fourth Dist.
    Jan. 16, 1950.]
    ORAL L. MITCHELL, Petitioner, v. EARL WARREN, as Governor, etc. Respondent.
    Harold A. Parichan for Petitioner.
    Fred N. Howser, Attorney General, and Leonard M. Friedman, Deputy Attorney General, for Respondent.
   GRIFFIN, Acting P. J.

Petitioner, Oral L. Mitchell, as a taxpayer and legally qualified voter of the 35th assembly district, instituted this proceeding to compel the Honorable Earl Warren, as Governor of the State of California, to call an election in that district for the purpose of electing a successor to the late Samuel L. Heisinger. Heisinger was duly elected assemblyman of the 35th district in 1948, and died on September 21, 1949, during his term of office. This office has been vacant ever since said date and no election has been called by the governor to fill said vacancy.

It is alleged in the verified petition and amended verified petition, that it was mandatory, under article IV, section 12, and article I, section 22 of the Constitution, and section 1773 of the Government Code, for the governor to “at once” issue a writ of election to fill such vacancy. In return to the order to show cause, the attorney general alleges that under the law stated the time of the issuance of a writ of election to fill a vacancy in the Legislature is discretionary with the governor, and cites several cases in support thereof, such as Putnam, v. Norblad, 134 Ore. 433 [293 P. 940]; State v. Boyd, 36 Neb. 181 [54 N.W. 252]; and People v. Cullom, 100 Ill. 472.

After hearing on the order to show cause and the factual questions were properly at issue, the petition was submitted for decision. A few hours before the decision was to be filed, the court was notified that the governor had called the election in that district. It therefore appears that the question raised by the pleadings is now moot.

On motion of petitioner the proceeding is dismissed. (Weiss v. City of Los Angeles, 190 Cal. 576 [213 P. 979]; Atkins v. Hughes, 208 Cal. 508, 509 [282 P. 787].)

Mussell, J., concurred.  