Jenkins v. Knight

Decision Date14 February 1956
Citation46 Cal.2d 220,293 P.2d 6
CourtCalifornia Supreme Court
PartiesThomas M. JENKINS et al., Petitioners, v. Goodwin J. KNIGHT, Governor of the State of California, Respondent. Ross H. BOYD et al., Petitioners, v. Goodwin J. KNIGHT, Governor of the State of California, Respondent. Herbert LICKER et al., Petitioners, v. Goodwin J. KNIGHT, Governor of the State of California, Respondent. Sac. 6639, 6637, 6638.

Aaronson & Cohn, Melvin E. Cohn, Michael Aaronson, San Carlos, Frank W. Rose, William W. Penaluna, San Mateo, Roger Kent, San Francisco, and Lester Van Tatenhove, Santa Ana, for petitioners.

Edmund G. Brown, Atty. Gen., and Leonard M. Friedman, Deputy Atty. Gen., for respondent.

GIBSON, Chief Justice.

The Constitution of California provides that when vacancies occur in either house of the Legislature the Governor 'shall issue writs of election to fill such vacancies', Cal.Const. art. IV, § 12, and it is provided in section 1773 of the Government Code that when such vacancies occur the Governor shall issue writs of election 'at once.'

Three seats in the Assembly became vacant as a result of the resignation or death of persons elected for the term ending December 31, 1956. One of the vacancies occurred on January 3, 1955, and the other two in July of that year. The Governor failed to call special elections to fill the offices, and on August 29, 1955, petitioners brought these original proceedings in mandamus to compel him to act. After briefs had been filed and the cases had been orally argued, the Governor, on January 4, 1956, issued proclamations ordering special elections to be held on June 5, 1956, the date of the presidential primary election.

These proceedings raise questions involving the power of the court to require the Governor to act, and the extent, if any, to which he has discretion with respect to calling and fixing the date for special elections to fill legislative vacancies.

There is a conflict of authority in this country as to whether a governor is amenable to mandamus with respect to any of his duties. See 105 A.L.R. 1124; Kumm, Mandamus to the Governor in Minnesota (1924), 9 Minn.L.Rev. 21; cases collected in Holcomb, Mandamus to the Chief Executive of the State (1922), 3 S.W. Pol.Sci.Q. 25. In some jurisdictions courts refuse to issue the writ against a governor under any circumstances, on the theory that interference with his action constitutes a violation of the doctrine of separation of powers or upon the ground that the issuance of a writ is inexpedient because of possible difficulty in enforcing it. See 105 A.L.R. 1124, 1128, 1144; Kumm, Mandamus to the Governor in Minnestota (1924), 9 Minn.L.Rev. 21, 32; Holcomb, Mandamus to the Chief Executive of the State (1922), 3 S.W.Pol.Sci.Q. 25-29. This reasoning has been rejected in many jurisdictions, including California where it has been consistently held for more than three quarters of a century that the writ will issue to compel a governor to perform ministerial acts required by law. Stuart v. Haight, 39 Cal. 87, 91; Harpending v. Haight, 39 Cal. 189, 209 et seq.; Elliott v. Pardee, 149 Cal. 516, 520, 86 P. 1087; Hollman v. Warren, 32 Cal.2d 351, 354 et seq., 196 P.2d 562; see McCauley v. Brooks, 16 Cal. 11 (overruled on other grounds in Stratton v. Green, 45 Cal. 149).

These decisions are based on the fundamental principle that under our system of government no man is above the law. Chief Justice Stephen Field, speaking for the court in the early case of McCauley v. Brooks, 16 Cal. 11, 54-55, stated that where no discretion exists and a specific legal duty is imposed, ministerial in its character, an officer of the executive department of government, like any other citizen, is subject to judicial process and that, if this were not so, the government would cease to deserve the 'high appellation' of being a government of laws. In the leading cases of Harpending v. Haight, 39 Cal. 189, 211-213, and Elliott v. Pardee, 149 Cal. 516, 520, 86 P. 1087, it was held that the Governor should not be exempted from judicial process solely because he is the chief executive and that, like subordinate officers, he is amenable to mandamus to compel the discharge of a ministerial duty which a body of citizens has a right to have performed. The duties whose performance was compelled in the cited cases were enjoined by statute, but there is no indication that a different result would have been reached had they been imposed by the Constitution. Although the courts in a few jurisdictions have held that they will not enforce ministerial duties imposed upon a governor by a constitution, we can see no logical basis for this classification. It would seem just as important to enforce duties directed by the people through the Constitution as those prescribed by the Legislature. Cf. O'Brien v. Olson, 42 Cal.App.2d 449, 109 P.2d 8.

Many acts of the Governor are, of course, inherently executive or political in nature, such as granting pardons, calling special sessions of the Legislature and signing or vetoing bills. See Harpending v. Haight, 39 Cal. 189, 208. They require the exercise of judgment or discretion, and for this reason the courts will not interfere with their performance. Unfortunately, the terms 'political' and 'executive' have been used loosely in some jurisdictions as an explanation for denying the writ in cases where the courts failed to make a proper analysis of the nature of the duty to be performed. The critical question in determining if an act required by law is ministerial in character is whether it involves the exercise of judgment and discretion.

It is clear that the duty imposed upon the Governor to issue writs of election to fill vacancies in the Legislature is ministerial in character. The Governor has no discretion to determine whether an election should be called; he is commanded by the Constitution to issue a proclamation. Const. art. IV, § 12. The provisions of our Constitution are mandatory and prohibitory unless expressly declared to be otherwise, see Cal.Const. art. I, § 22, and the duty to call elections to fill legislative vacancies is mandatory.

In related cases where officers enjoined by law to call a special election failed to act, it has been established that the duty is ministerial and that its performance may be compelled by mandamus. Blotter v. Farrell, 42 Cal.2d 804, 270 P.2d 481; Wahl v. Waters, 11 Cal.2d 81, 77 P.2d 1072; Morrow v. Board of Directors, 219 Cal. 246, 26 P.2d 292; Othmer v. City Council of City of Long Beach, 207 Cal. 263, 277 P. 857; Hill v. Board of Supervisors, 176 Cal. 84, 161 P. 514 (overruled on other grounds in Simpson v. Hite, 36 Cal.2d 125, 222 P.2d 225); Scheafer v. Herman, 172 Cal. 338, 155 P. 1084; Hopping v. Council of City of Richmond, 170 Cal. 605, 150 P. 977 (overruled by implication on other grounds in Simpson v. Hite, 36 Cal.2d 125, 222 P.2d 225); Teague v. Board of Trustees, 156 Cal. 351, 104 P. 581; Frederick v. City of San Luis Obispo, 118 Cal. 391, 50 P. 661; People ex rel. Miller v. Common Council, 85 Cal. 369, 24 P. 727; Gibbs v. Bartlett, 63 Cal. 117; Dye v. Council of the City of Compton, 80 Cal.App.2d 486, 182 P.2d 623 (overruled on other grounds in Hunt v. Mayor, 31 Cal.2d 619, 191 P.2d 426); Whittemore v. Seydel, 74 Cal.App.2d 109, 168 P.2d 212 (overruled on other grounds in Hunt v. Mayor, 31 Cal.2d 619, 191 P.2d 426); Brown v. City Council, 103 Cal.App. 113, 284 P. 254; Martin v. Board of Trustees, 96 Cal.App. 705, 274 P. 1015; Hilliker v. Board of Trustees, 91 Cal.App. 521, 267 P. 367; Magoon v. Heath, 79 Cal.App. 632, 250 P. 583; Ratto v. Board of Trustees, 75 Cal.App. 724, 243 P. 466; Worth v. Downey, 74 Cal.App. 436, 241 P. 96; Sidler v. City Council of City of Bakersfield, 43 Cal.App. 349, 185 P. 194; Wrigley v. South San Joaquin Irr. Dist., 31 Cal.App. 162, 159 P. 985; Osborn v. Board of Supervisors, 27 Cal.App. 85, 148 P. 970; Bigelow v. Board of Supervisors, 18 Cal.App. 715, 124 P. 554; Locher v. Walsh, 17 Cal.App. 727, 121 P. 712; Conn v. City Council, 17 Cal.App. 705, 121 P. 714, 719; Good v. Common Council, 5 Cal.App. 265, 90 P. 44. The authority of these cases with respect to the ministerial character of the function is not lessened by the fact that they involve local officials. 'It is not by the office of the person to whom the writ is directed, but the nature of the thing to be done, that the propriety or impropriety of issuing a mandamus is to be determined.' Marbury v. Madison, 1 Cranch 137, 170, 2 L.Ed. 60; see Harpending v. Haight, 39 Cal.2d 189, 210; McCauley v. Brooks, 16 Cal. 11, 44.

The attorney general argues that, since no time is fixed in the...

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