Harby v. City of Los Angeles

Under proceedings taken pursuant to chapter 2, title 2, part 2, of the Penal Code, sections 758 to 772 thereof, appellant was removed from his office as a councilman of the city of Los Angeles. The judgment rendered in said proceeding was affirmed upon appeal. (People v. Harby,

In principle, the Betkouski case and appellant’s case are identical. In the Betkouski case, supra, the petitioner sought a writ of prohibition to prevent his trial under an accusation presented by the grand jury pursuant to the provisions of sections 758-772 of the Penal Code above mentioned. The petitioner in that case was also a member of the council of the city of Los Angeles, and was charged by the accusation with a violation of the provisions of former section 18 of the city charter, the provisions of which section are now embodied in section 28 of the said charter, and which provide that no member of the council shall be financially interested in any contract, sale or transaction to which the city is a party, under penalty of forfeiture of his office. Petitioner in the Betkouski case, supra, contended that the right to remove a member of the council under section 18 of the charter was superseded by the right given in the charter to removal by the recall. Inasmuch as it was held in the Betkouski case that the appropriate method of removal from office under section 18 of the city charter was by proceedings instituted pursuant to section 758, et seq., of the Penal Code, what the court there said relative to the recall provisions of the city charter applies with equal force here.

It is there stated, at page 121: “The recall provides for the removal of officers at the will of the electors of the municipality, upon reasons, good or bad, satisfactory to the individual consciences of the electors. Even if a recall petition should state, as reason for recall, the same matters which

Of the Betkouski case, supra, appellant’s brief states: “Thus the Betkouski opinion contrasts the alleged scheme of removal under section 18 with that provided by the recall. It shows that the recall scheme meets the requirement as to designating the cause and also provides the mode of removal ‘with great care’ whereas section 18, now 28, states the cause but utterly fails to provide the method or mode. It definitely recognizes that where, as in the recall, both cause and mode are found, the charter provision is exclusive of state laws, and it does this both by its plain language and the citation, as illustrations, of such cases as Dinan v. Superior Court, 6 Cal.App. 217 [ 91 P. 806 ], and Craig v. Superior Court, 157 Cal. 481 [ 108 P. 310 ].” However, appellant completely overlooks the fact that section 290 of the Los Angeles Charter is ex-

Appellant has not pointed out wherein the charter of the city of Los Angeles either expressly or impliedly provides that elected officials, of the city shall only be removed from office as in said charter provided. In the Betkouski case, supra, it is stated with respect to section 758, et seq., of the Penal Code (at p. 126) : “There is no conflict between those sections and the charter, for they occupy a field which it does not invade. There is apparently no other procedure than that outlined in the sections mentioned to which resort may be had in order to render section 18 of the charter effective, and the language of section 758 expressly countenances such a resort, for it provides for the presentation by the grand jury of ‘an accusation in writing against any . . . municipal officer, for willful or corrupt misconduct in office. ’ ” Appellant misconstrues the purport of the Betkouski case. As to section 290 of the city charter, the Betkouski case holds that the recall provisions of the charter do not conflict with the provisions of section 18, now section 28 of said charter, nor with the method of removal of a city councilman from office under section 758, et seq., of the Penal Code for violation of the provisions of section 18. The opinion in the Betkouski case, as above quoted, expressly states as a general proposition that there is no conflict between the provisions of the Penal Code, in question, and the recall provisions of the charter. And it is obvious that if removal of a city official may be had under section 758, et seq., of the Penal Code, for a violation of section 18 of the charter without conflicting with the recall provisions, the said sections of the Penal Code may be applied to removal of a city official in any cireum

Section 9 of the Los Angeles charter states: “An office becomes vacant when the incumbent thereof ... is . . . convicted . . . of an offense involving a violation of his official duties, or is removed from office, . . . .” Appellant argues at length that this section gives no authority to remove any officer from his office; that it is a mere “eligibility and exclusion act.” Regardless of what the section may be termed, it follows from the express provisions thereof that when an incumbent is so convicted or removed the office he occupies becomes vacant. No recall is necessary. The office becomes vacant, ipso facto, upon the conditions specified. Whether this is termed “removal from office” or a “specification of elegibility” to hold or continue in office, the effect is the same. The incumbent is no longer “in office”; and nothing further is needed to render vacant the office hitherto occupied by the incumbent. If the incumbent may not be said to have been “removed” he is nonetheless “out” as effectively as if he were “removed.” It is reasonable to infer from the language employed in section 9 of the charter that the possibility of proceedings under section 758 et seq., of the Penal Code was contemplated when this charter provision was drawn. Section 18 of article IV of the Constitution of California is also pertinent in this regard. That section, after setting forth who shall be liable to impeachment for misdemeanor in office, states: “All other civil officers shall be tried for misdemeanor in office in such manner as the Legislature may provide.”

However, it is not necessary to decide here whether removal of an incumbent of an elective city office for misconduct in office, for a violation of official duties, or for any such cause, may or may not be made strictly a municipal affair by the provisions of a city charter. (In this connection see Coffey v. Superior Court, 147 Cal. 525 , at 535 [ 82 P. 75 ].) Appellant has based the appeal herein solely on the ground that section 290 of the Los Angeles City Charter conflicts with the provisions of the Penal Code above mentioned, through providing the exclusive method for removal of an elected official of that city. It has been shown that there is no such conflict between the charter provision and the par

For the foregoing reasons the order denying the application for an alternative writ of mandate is affirmed.

York, P. J., and White, J., concurred.

A petition for a rehearing was denied July 6, 1944, and appellant’s petition for a hearing by the Supreme Court was denied August 14, 1944. Carter, J., and Schauer, J., voted for a hearing.