Klose v. Superior Court

One Jorgensen filed a complaint in mandamus in the Superior Court of San Mateo County against the City Council of the City of San Carlos and four of its members, praying that it and they be required to fill, either by appoint-

Questions Presented

There are three main questions: 1. Is petitioner a proper party to this proceeding? 2. Will prohibition lie? This question, in turn, depends primarily upon the answer to— 3. Will mandamus lie to force a city council to fill an alleged vacancy on the council, the fact of which vacancy is disputed ?

Pleadings

The petition in prohibition annexes a copy of the complaint in mandate and then alleges that the complaint admits and petitioner declares that at a general municipal election held in San Carlos on April 13, 1948, petitioner was elected a member of said city council and qualified as such on April 20; that neither the courts of this state nor the council have declared a vacancy to exist upon said council; that on January 31, 1949, the San Carlos City Attorney rendered an opinion that petitioner is a legal resident of that city, and that on October 28,1949, said city attorney rendered a further opinion to the same effect. Attached to the petition as exhibits are these opinions, the first one stating, “Upon my own investigation and in an interview with Councilman Klose, I find that he is a legal resident of the City of San Carlos.” In the second opinion the city attorney stated that he had again interviewed petitioner ' ‘ and checked the facts as they existed in my previous letter to you and find no change; therefore, my opinion previously given to you on the same subject matter has not changed. ’ ’ The petition further alleges that inasmuch as no vacancy has been declared the mandate action would by necessity try the title to the petitioner’s office, that the superior court has no jurisdiction to try title at all and also because petitioner is not a party to the proceeding; that petitioner does not have a plain, speedy and adequate remedy at law, because (1) he is not a party to the proceeding; (2) a writ of mandate ordering the filling of the alleged vacancy would put in doubt for months, pending appeal, his right to sit on the council, would hinder him in his performance of his duties as an elected official, would hinder the city govern

1. Is Petitioner a Proper Party?

Section 1103, Code of Civil Procedure, provides that the writ of prohibition “is issued upon the verified petition of the person beneficially interested.” Respondents contend that petitioner is not such a person. While the petition leaves much to be desired in definite statement of petitioner’s present residence in San Carlos, still, taking the allegations of the petition and complaint in mandate together, it is alleged that petitioner was duly elected and qualified as a member of the city council in 1948, at which time he was admittedly a resident ; that the council after an investigation by and the advice of the city attorney, refused to recognize plaintiff’s claim that petitioner is a nonresident, and that petitioner is a citizen and taxpayer of San Carlos, and “is a part” of the city government. As the questions involved in this ease are matters of great importance to the citizens of San Carlos, we do not feel that the ease should be decided on technical questions of niceties of pleading. Broadly interpreting the allegations in the petition and complaint, particularly in view of petitioner’s offer to amend his petition and allege in positive terms that he still is and claims to be a resident, elector and councilman of San Carlos, it appears that petitioner is beneficially interested in this proceeding (1) as an elector and taxpayer of San Carlos, and (2) as a person claiming title to the office in controversy. -

3. Is Mandamus the Proper Remedy ?

Respondents’ main contention that mandamus is a

Respondents rely on People v. Brite, 55 Cal. 79 . There the county judge, upon the theory that one Tracy who had theretofore qualified as supervisor had removed from the district, appointed one Brite supervisor in his place. In a quo warranto proceeding brought on the relation of Tracy, the lower court found for Brite apparently on the theory that there had been no proceedings to declare the office vacant. The Supreme Court said that the question to be considered was “whether proceedings must first be had to declare a vacancy, or whether an appointment can be made if the fact of vacancy exists. ’ ’ It then went on to say that when the relator ceased to be an inhabitant of the district, he ceased to be supervisor and a vacancy occurred. It then used this significant language: “The issue of vacancy or not can be, and is to be, determined in this case. The relator has his day in Court in this action upon that issue, and we see no necessity of a previous adjudication. The Legislature was competent so to enact, and, as we have stated, has so enacted.” (P. 80.) The court then remanded the case to the trial court to determine the question of whether or not the relator had removed from the district, thereby creating a vacancy. This case holds that where the appointing power considers a vacancy to exist, it may appoint a successor, without proceedings to declare the vacancy to exist, and that when it does so appoint the official succeeded may by quo warranto question whether there was any vacancy. In our case the appointing power did not

The question of whether mandamus rather than quo warranto is the proper remedy where there is a dispute over whether a vacancy in office exists, is rather muddled in California. The courts have almost uniformly stated that mandamus cannot be used to try" title to office, and then in a number of instances, have, in effect, tried title on the theory that title was only incidentally involved.

The cases which have refused in similar or somewhat similar situations to that in our case, to apply mandamus, follow. The latest is Drescher v. Board of Supervisors of Butte County, 191 Cal. 234 [ 215 P. 902 ], That was an application for a writ of mandamus to compel the board to appoint a member upon

A review of the other eases in this state upon the subject, and an analysis of the fact situations involved, reveals the following pattern:

1. Where the office is occupied by a de facto incumbent, mandate will not lie at the request of an outsider seeking some incident of the office or outright admission to the office. (People v. Olds, 3 Cal. 167 [58 Am.Dec . 398] [mandate for records of office]; People v. Scannell, 7 Cal. 432 [mandate for records of office] ; Meredith v. Board of Supervisors, 50 Cal. 433 [mandate for pay] ; Kelly v. Edwards, 69 Cal. 460 [ 11 P. 1 ] [mandate for admission to office] ; Black v. Board of Police Commrs., 17 Cal.App. 310 [ 119 P. 674 ] [mandate for pay]; Hamburg v. Board of Police and Fire Commrs., 27 Cal.App. 6 [ 148 P. 802 ] [mandate for pay].)

The above California cases are consistent with the general rule elsewhere. (See 84 A.L.R. 1126 .)

An apparently exceptional case is Davenport v. City of Los Angeles, 146 Cal. 508 [ 80 P. 684 ], in which mandate was issued ordering the payment of salary to petitioner as city councilman, on the ground that his supposed recall was invalid. The court settled the question of legal title on the merits, notwithstanding the existence of a de facto councilman occupying the office, who was not a party to the proceedings. The form of the action and the question of trying title to office in a mandate proceeding were not discussed.

2. Where a de facto officer brings mandate for some incident of office, the writ lies, the court adopting one of two alternate theories: (a) Legal title is an incidental issue and can be passed on by the court. (Bannerman v. Boyle, 160 Cal. 197 , 203 [ 116 P. 732 ] [mandate for pay].) (b) The petitioner is entitled to the incidents of office based on his de facto occupancy. Legal title is not in issue, and lack of legal title cannot be raised by the defendant. (Turner v. Melony, 13 Cal. 621 [mandate for pay]; Elliott v. Van Delinder, 77 Cal.App. 716 [ 247 P. 533 ] [mandate for pay].) This theory was applied in Petersen v. Morse, 48 Cal.App. 428 [ 192 P. 51 ], which involved the general right to occupy an office, rather than some particular incident of office. The dissenting opinion of Mr. Justice Nourse points out the inapplicability of the doctrine in such a case. (48 Cal.App. at p. 437.) (c) In Welch v. Ware, 161 Cal. 641 [ 119 P. 1080 ], the court granted mandate ordering salary paid to petitioner, after deciding on the merits that he held legal title to the office, an attempted ouster being invalid. The question of trying legal title by mandate was not mentioned. In Norton v. Lewis, 34 Cal.App. 621 [ 168 P. 388 ], the court on an application for mandamus for pay against the county auditor by a member of the board of supervisors, passed upon the question of whether such member was a holdover or had qualified for a new term. No question was raised as to the form of the proceeding.

Section 36812 of the Government Code (Stats. 1949, p. 149), dealing with legislative bodies of sixth class cities, provides as follows: “After incorporation, the city council is judge

In Nielsen v. Gregory, 60 Cal.App. 574 [ 213 P. 510 ] (mandate for approval of bond) the court said that the question was moot and the writ would be denied. It added, however, that the existence of two contesting claimants would not have prevented the court from determining the case, since petitioner would only have to make a prima facie showing of legal title, and the court would not actually be adjudicating legal title. (P. 577.) In McKelley v. Turner, 96 Cal.App. 292 [ 273 P. 1101 ], there were two claimants. The court granted mandate ordering payment to petitioner on the ground that he had legal title to the office, an alleged resignation being ineffective. The question of trying title to office by mandate was not discussed. Adams v. Doyle, 139 Cal. 678 [ 73 P. 582 ], likewise was a mandamus proceeding to collect pay. No question was raised as to the form of the proceeding and the court determined the right to the office of sheriff as between petitioner and another. In Robinson v. Moran, 3 Cal.2d 636 [ 45 P.2d 206 ], the court conceded that title could be passed on incidentally in a proceeding for mandate, but said that the case before it contained fact issues which could be handled better in the superior court. The petition was dismissed without prejudice to a similar proceeding in the lower court.

In Brennan v. Riley, 3 Cal.2d 736 [ 46 P.2d 972 ] (mandate for pay), the court said: “Inasmuch as both claimants to the office of chairman of the veterans’ welfare board have brought action against the controller, neither of them raise any question concerning the right of the court to determine title to the office in a proceeding of this character. It is well, however, to bear in mind the rule announced, together with its limitation, in McKannay v. Horton, 151 Cal. 711 [ 91 P. 598 , 121 Am.St.Rep. 146 , 13 L.R.A.N.S. 661 ]. In other words, as there, we may inquire into the question of who is the occupant of the

4. In various other situations the courts discourage attacks on de facto officers but otherwise allow the use of mandate by persons claiming public offices.

In Satterlee v. San Francisco, 23 Cal. 314 , a party to a contract with the city contended that the contract was invalid because one of the councilmen who voted for it was ineligible to hold office. The court refused to consider this point, on the ground that the eligibility of a de facto officer cannot be attacked collaterally.

In Hamilton v. Mallard, 33 Cal.App. 470 [ 165 P. 725 ], the job held by Mallard had been abolished and the duties taken over by a different officer. In an attempt to test the validity of that action, petitioner sought mandate ordering Mallard to carry out his former duties. The court refused to go into the matter, stating: ‘‘If the proceedings for the transfer of the functions of the office are, as claimed, invalid, such question should be litigated in a direct proceeding, final as to parties directly interested, and not in a suit at the instance of a third party who, as it appears to us, has no beneficial interest in the matter. ’ ’ (P. 473.)

In Lowy v. Reardon, 12 Cal.App.2d 748 [ 55 P.2d 1214 ], petitioner sought mandate ordering payment of his salary, on the theory that an attempted abolition of the office was invalid. There was of course no de facto occupant. Although denying the writ on the merits, the court held that mandate for pay was a proper remedy. ‘ ‘ The defendants contend that mandamus is not a remedy available to plaintiff, since he is attempting to compel his admission to the use and enjoyment of a public office, and that a quo warranto action is the only proper remedy. It is alleged in the complaint that the defendant officials have refused to issue a warrant for plaintiff’s salary. In a number of cases it has been held that the issuance of salary warrants may be compelled by mandamus proceedings. [Citing cases.] Therefore plaintiff’s cause of action cannot be defeated on the sole ground that the kind of action selected is not appropriate. ” (P. 749.)

In Bannerman v. Boyle, supra ( 160 Cal. 197 ), a member of the San Francisco Board of Education was granted a peremptory writ of mandate to compel the auditor to pay his salary. The defense was that petitioner was a usurper, although a de facto member of the board. The court determined the legal

5. As shown in the Drescher and Meeker cases, supra, where petitioner as taxpayer alleges that an office is vacant, notwithstanding a de facto occupant, and asks that the proper authority be forced to fill the alleged vacancy, the courts have usually held mandate an improper remedy.

Respondents cite Independence League v. Taylor, 154 Cal. 179 [ 97 P. 303 ], as authority that mandamus will lie here to compel the council to appoint. However, the facts of that case are entirely dissimilar to those in our case. There the court issued a writ of mandate to compel the San Francisco Mayor to appoint two members of the Independence League as members of the board of election commissioners, although the mayor had already appointed the members of such board. However, the court pointed out that under the law the mayor was required to appoint two members of the league, which he had not done. It was not a matter of trying title to the office of the two non-league members whom he had appointed, but rather an inquiry as to whether he had obeyed the plain requirement of the law that he appoint two league members.

In Platnauer v. Board of Supervisors, 65 Cal.App. 666 [ 225 P. 12 ], cited by respondents, petitioner, an attorney at law, was granted a peremptory writ of mandate requiring the county board of supervisors to appoint a city justice of the peace of Sacramento. One of the county judicial townships was identical with the boundaries of the city of Sacramento. A justice of the .peace had been duly elected to that office. The board had refused to appoint a city justice of the peace on the theory the city justice of the peace and the township justice of the peace were one office. The court held that they were separate entities and therefore it was the duty of the board to appoint someone to the city office. Title to the office was not tried; merely the legal question of whether or not

Respondents have cited many cases to the effect that where the fact of vacancy is not in dispute mandamus is the proper remedy to compel a municipal board to fill it. Those cases are not in point here because the fact is very definitely in dispute.

In reconciling the rulings the following appears: (1) that it is the general rule that mandamus cannot be used for this purpose unless the fact of vacancy is not disputed; (2) that where the circumstances justify a departure from the rule, the courts have done so, usually only where there are conflicting claimants to the office; and (3) where there are no conflicting claimants and the appointing power has refused to determine the existence of the vacancy, and there is an incumbent claiming the office, mandamus must be denied.

In McKannay v. Horton, 151 Cal. 711 , 716 [ 91 P. 598 , 121 Am.St.Rep. 146 , 13 L.R.A.N.S. 661 ], in considering the rule, the court said: “. . . that the rule in such cases as the present is, as above stated, merely a rule of procedure—the rule, that is to say, of our statute, that the writ of mandamus will issue only in cases where there is not another plain, speedy, and adequate, or specially prescribed statutory, remedy. (Code Civ. Proc., 1086.) The rule is not jurisdictional, and its application to a particular case involves only the exercise of sound legal discretion. ’ ’ It must be noted that it is referring to the rule “in such cases as the present,” namely, where title to office as between two claimants is only incidentally involved.

Quo warranto gives a plain, speedy and adequate remedy. Respondents contend that quo warranto is not such a remedy. That it is, is shown by the fact that in quo warranto, the one claiming the title has a direct right to be heard. In this case, if mandamus were allowed, and if the trial court should order the council to fill the alleged vacancy, an anomaly would result, as Klose would not be bound by the decision. If the council, under mandamus, should appoint another councilman, an action in quo warranto or a mandamus action for payment of salary would have to be brought to determine which was legally entitled to the office. Quo warranto could finally determine the title to the office in one proceeding. Mandamus, if allowed, would necessitate two proceedings.

The trial court issued an alternative writ of mandate. It should have refused to do so, for the reasons above set forth. It assumed the power to proceed. It did not have such power. It is therefore necessary that any further proceedings in the mandate action should be stayed.

Let a peremptory writ of prohibition issue as prayed, restraining the respondent court from proceeding further with the mandate action.

Peters, P. J., and Schottky, J. pro tern., concurred.

A petition for a rehearing was denied May 10, 1950.