Klose v. Superior Court in and for San Mateo County

• Decision Date: 11 April 1950
• Docket Number: No. 14413,14413
• Citation: 217 P.2d 97,96 Cal.App.2d 913
• Court: California Court of Appeals Court of Appeals
• Parties: . District Court of Appeal, First District, Division 1, California

Page 97

217 P.2d 97

96 Cal.App.2d 913

KLOSE v. SUPERIOR COURT IN AND FOR SAN MATEO COUNTY et al.

No. 14413.

District Court of Appeal, First District, Division 1, California.

April 11, 1950.

Aaronson & Cohn, Melvin E. Cohn, San Carlos, for petitioner.

Carl Wm. Anderson, Burlingame, amicus curiae.

Frank V. Kington, Redwood City, for respondents.

BRAY, Justice.

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 appointment or by the calling of an election, a vacancy on the council which he alleged had occurred because the incumbent Councilman Klose had become a nonresident of that city. Thereafter said Klose filed a petition in this court for a writ of prohibition ordering the superior court to refrain from further proceedings in the mandamus action.

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 government in the performance of its functions; and (3) would precipitate confusion in the government of the city of which he is a citizen and taxpayer; and that an alternative writ was issued on said complaint. The mandate complaint, in addition to the matters referred to in the petition, sets forth that plaintiff Jorgensen is an elector and taxpayer of the city; that Klose at the time of his election and qualifying as a councilman was an inhabitant of San Carlos residing at a stated address therein; that about July 4, 1948, Klose ceased to be an inhabitant and removed the place of residence of himself and family from that address to a designated address outside said city; that on November 21, 1949, plaintiff made written demand upon the council and its members that the vacancy caused by Klose ceasing to be an inhabitant, be filled either by appointment or election; that it and they have failed and refused so to do.

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 citizin and taxpayer of San Carlos, and 'is a part' of the city government. As the questions involved in this case are matters of great importance to the citizens of San Carlos, we do not feel that the case 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 Calos, 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 proper remedy is based upon their claim that their complaint shows that Klose is no longer a resident of San Carlos; that automatically a vacancy exists; that the mandamus proceeding does not try the title to the office, but merely is concerned with the filling of it. Respondents admit that if the question of title to office is the main issue, then the proper remedy is quo warranto, but contend that here title to office is a mere incident to the filling of the office. This is putting the cart before the horse, for until some authority decides the dispute as to whether a vacancy exists, there is nothing to fill. Respondents argues that because plaintiff in mandate alleged that petitioner moved his residence out of the city, there was an automatic vacancy created which required no determination of that fact. There can be no question, and all parties concede, that where an elected official of a city of the sixth class removes his residence from the city, his office becomes vacant. Government Code, § 1770, formerly Political Code, § 996.

Respondents rely on People ex rel. Tracy 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.' 55 Cal. at page 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 appoint a successor. Moreover, there was no request that the trial court determine whether a vacancy existed. Nor is Harby v. City of Los Angeles, 64 Cal.App.2d 911, 149 P.2d 390, applicable here. There the petitioner, after conviction of a crime, had been removed from his office as a city councilman by court action under Penal Code sections 758-772. He sought a writ of mandate to compel payment of salary on the ground that his removal was illegal as the Los Angeles City Charter provided the exclusive method of removal. In denying the application on the ground that the charter provision was not exclusive, the court said that upon conviction of an offense involving a violation of his official duties, an incumbent's office becomes vacant, ipso facto. Other cases cited by respondents, such as People ex rel. Fleming v. Shorb, 100 Cal. 537, 35 P. 163, 38 Am.St.Rep. 310, are to the same effect, namely, that removal from the political subdivision causes an ipso facto vacancy, and where the appointing power fills the vacancy the incumbent 'is not thereby concluded as to the fact of the occurrence of such event. He may still question and contest the allegation of that fact, either before or after the installation of the appointee,--before such installation, if he refuse to vacate the office, in an action by the people to oust him; or, after such installation, in an action by the people on his relation to oust the appointee. Thus, he may always have his day in court before it can be conclusively adjudged against him that the office was vacant at the time the appointment was made.' 100 Cal. at page 541, 35 P. at page 164. But these are all cases in which the appointing power, by making an appointment, has, in effect, determined that the facts exist which cause a vacancy. None of these are cases in which the court has compelled the...