Barendt v. McCarthy

This is an appeal from a judgment in favor of the defendants. The complaint alleged that Arthur H. Barendt was a member of the board of health of the city and county of San Francisco duly appointed; that the mayor and chief of police of that city and county had, in the absence of the health officer and the members of the board of health, broken into the headquarters of the board and had placed in possession thereof Arthur M. Sharp as a pretended successor of plaintiff and other persons assuming to succeed plaintiff’s associates. The complaint further averred that the appointees of the present mayor assumed to hold a meeting as a board of health; that they had organized by electing a president and secretary; and that they pretended to exercise authority over all the departments properly subject to the control of plaintiff and his associates. There was a further averment that defendant P. H. McCarthy claimed a right, as mayor of the city and county of San Francisco, to remove plaintiff from office, and that in the exercise of that asserted authority he had made an order purporting to declare plaintiff’s place on the board of health vacated, and to substitute Arthur M. Sharp in his stead. The power and authority of the mayor in the premises was denied and an injunction was prayed restraining defendants from removing or attempting to remove plaintiff from actual posession of his office ás a member of the board of health of the city and county of San Francisco.

To this complaint defendants demurred, and thereafter the matter was heard on an order to show cause. At the hearing the following facts appeared by affidavit: On January 28, 1910, Mayor P. H. McCarthy of the city and county of San Francisco, made an order removing Arthur H. Barendt, George B. Somers, William F. Wilson, Thomas W. Huntington, and Joseph E. Cutten, as members of the board of health; immediately notified the board of supervisors of such removal; and furnished said supervisors with a statement of the cause for his action. This statement was entered of record in the proceedings of the said board of supervisors. Among the causes for the removal specified in the statement were acts of plaintiff and his associates in willfully and knowingly appointing to positions in the health department of the said city and county persons not qualified for and not eligible to such positions and willfully and knowingly approving and auditing

It is thoroughly settled that title to public office may not be tried in a suit for an injunction. Mr. High, in his work on injunctions, says: (4th ed., sec. 1312) “No principle of the law of injunctions and perhaps no doctrine of equity jurisprudence is more definitely fixed or more clearly established than that courts of equity will not interfere by injunction to determine questions concerning the appointment or election of public officers or their title to office, such questions being of a purely legal nature, and cognizable only by courts of law. A court of equity will not permit itself to be made the forum for determining disputed questions of title to public offices, or for the trial of contested elections, but will in all such cases leave the claimant of the office to pursue the statutory remedy, if there be such, or the common law remedy by proceedings in the nature of a quo warranto.” In White v. Berry, 171 U. S. 377 , [ 18 Sup. Ct. 917 , 43 L. Ed. 199 ], Mr. Justice Harlan, speaking for the supreme court of the United States, quoted approvingly from the opinion in Sawyer’s case, 124. U. S., 223, [ 8 Sup. Ct. 482 , 31 L. Ed. 432 ], as follows: “It is equally well settled that a court of equity has no jurisdiction over the appointment and removal of public officers, whether the power of removal is vested, as well as that of appointment, in executive or administrative boards, or officers, or is intrusted to a judicial tribunal. The jurisdiction to determine the title to a public office belongs exclusively to the courts of law, and is exercised either by certiorari, error or

But while equity will not determine title to public office in a ease of this kind, appellant invokes the rule that the possession of officers de facto will be protected by injunction pending a litigation in the nature of quo warrcmto to determine their title. He maintains that although he and his associates are not in physical possession of the books, papers, and meeting-place of the board of health, they are-the de facto members of that body and are entitled to be restored to that possession of which they were deprived by the trickery and intrusion of the men app'ointed by Mayor McCarthy. But the mere fact that possession of the place of business and indicia of an office was obtained by entrance in the absence of former holders, or even by force when they were present, does not of necessity

This is not a case where “two contending boards are simultaneously acting.” (Morton v. Broderick, 118 Cal. 485 , [ 50 Pac. 644 ].) In such a case title to the office de jure draws to it the possession de facto which, as was said in the case last cited, “is but a concise expression of the rule that in mandamus where conflicting boards of officers are acting simultaneously,

Shaw, J., Henshaw, J., and Lorigan, J., concurred.

I dissent. At a time when the plaintiff and his associates were lawfully occupying positions as members of the board of health, the mayor undertook to remove them and to appoint other persons in their places. While the fact is not stated in so many words, it appears clearly enough from the averments of the complaint that the. mayor took this action without any notice to the incumbents and without affording them any opportunity to he heard in their defense. On January 31, 1910, the persons appointed as successors went to the rooms occupied as the offices of the board of health. The plaintiff and his associates were not present, but demand was made of an inspector that such new appointees be admitted to the rooms of the board. It was found that the rooms were locked, whereupon, after unsuccessful efforts to gain entry through the window and by means of a fire-escape, recourse was had to the services of a locksmith, who opened the door. The new appointees then took possession of the rooms and of all the official records and papers of said board. Two days thereafter, on February 2,1910, the plaintiff verified the complaint herein, and the action was commenced on the fourth day of February. The plaintiff and his associates never acquiesced in the attempt to remove them from office and never abandoned their offices. On the contrary, they proceeded with all reasonable diligence to assert their rights to possession, and their intention to contest the legality of the mayor’s action.

On these facts it seems clear to me that the plaintiff was entitled to the injunction which he sought. It is, of course, the established rule that a court of equity will not take jurisdiction of an action for the purpose of trying the title to public office. But it is also well settled that where there is a bona fide contest between two persons, both claiming to be entitled to the same office, a court of equity will issue its injunction to protect the officer in possession against the interference of

If the plaintiff and his associates had been in session as a board of heath at the time of the entry of the persons assuming to act as their suecesors, and the latter had forcibly thrown' them out of the rooms and installed themselves therein, it would hardly, I think, be claimed that possession of the office had at once passed from the old board to the new. I do not think the case is any different where, in the absence of the occupant, access to the rooms is obtained surreptitiously or, as in this ease, by the use of such force as is involved in picking the lock of the door. “It would be a strange doctrine to

I think the judgment should be reversed.

Angellotti, J., and Beatty, C. J., concurred.

Rehearing denied.

In denying a rehearing, the following opinion was rendered on October 7, 1911:—

The appellant asks a rehearing of -this case upon the ground that the decision, and some remarks in the opinion, conflict with the decision and opinion in Bannerman v. Boyle, ante, p. 197, [ 116 Pac. 732 ],

There is nothing inconsistent in the two decisions. They determine different questions, upon different facts. In this case the title to the office is not, and could not he, in issue. The decision, in brief, is that if one is a de facto officer, that is, in actual, peaceable possession of the office, claiming the right to hold it and regularly performing its duties, his title cannot be assailed by a suit in equity to enjoin him from doing so, nor will an injunction issue upon a suit by the true holder of the title to an office to restrain the usurper and others from removing the true holder, where it appears that the true holder was ousted and the usurper was in peaceable and undisturbed possession at the time suit is begun and for the four days next preceding. The decision in the Banner-man case, upon the question on which it is supposed to conflict, was that, under the conditions there existing, a de jv/re officer who has been unlawfully ousted may compel payment of his salary by a suit in mcmdamm against the auditor," that in such mcmdamm suit the title of the plaintiff to the office may be put in issue and tried, and that, under the San Francisco charter, a member of the board of education cannot be removed by the mayor except for good cause and after he has been given a hearing as to the cause, or an opportunity to be heard thereon. The usurper was not a party in the Bannerman case. Neither the auditor nor any authorized representative of the city or state is a party to the Barendt suit. The respective points decided in the two cases have no bearing on each other.

At the time these things took place a removal, without hearing, of a San Francisco officer, was generally believed to be lawful, under the supposed application of the decision of In re Carter, 141 Cal. 316 , [ 74 Pac. 997 ], a case under the San Diego charter, to the provisions of the San Francisco charter. This indicates that Barendt’s removal was not made in bad faith by the mayor and that the persons appointed by him to fill the supposed vacancies believed they had the right of possession. The opposite inference would be drawn since the decision in the Bannermann case that such removal cannot

In explanation of the language of the opinion in this case it is to be remarked that this case was first submitted and the opinion herein was written before the Bannerman case was decided, otherwise some of the statements in the opinion might perhaps have been omitted as unnecessary to the discussion. Counsel misunderstand the effect of the remark in the opinion that “the mayor seems to have followed the provisions of the charter with respect to notifying the board of supervisors of the cause of removal of an officer, and his statement of such cause seems to have been entered of record in the proceedings of the board in accordance with the charter.” These things were done regularly as the charter prescribes, but in the connection in which this passage occurs it does not mean that the removal was for that reason valid without any previous hearing as to the cause. These facts were stated solely as foundation for the argument that these records, coupled with a certificate of appointment by the mayor, regular on its face, gave defendant Sharp color of title to the office.

The decision does not leave the people or the ousted officer without civil remedies. Such officer may obtain his salary, as stated, or he may apply for leave to sue in quo warrcmto, which we must assume would be granted in all proper eases, thus giving a remedy for both the officer and the people. The people would also be entitled to protection by the auditor or treasurer withholding the salary of the office from the usurper, in which event the usurpation, if it should occur, would probably soon come to an end.

The petition for rehearing is denied.

Lorigan, J., Melvin, J., and Henshaw, J., concurred.