Woodmansee v. Lowery, s. 23601

• Decision Date: 05 February 1959
• Docket Number: Nos. 23601,23602,s. 23601
• Citation: 167 Cal.App.2d 645,334 P.2d 991
• Court: California Court of Appeals Court of Appeals
• Parties: Charles H. WOODMANSEE, Petitioner, v. Joseph M. LOWERY, as Auditor-Controller of the County of Los Angeles, Respondent. Philip ERBSEN, Petitioner, v. Joseph M. LOWERY, as County Auditor of Los Angeles County, George J. Barbour, Clerk of the Municipal Court of the Los Angeles Judicial District, County of Los Angeles; and County of Los Angeles, a political subdivision of the State of California, Respondents.

Page 991

334 P.2d 991

167 Cal.App.2d 645

Charles H. WOODMANSEE, Petitioner, v. Joseph M. LOWERY, as Auditor-Controller of the County of Los Angeles, Respondent.

Philip ERBSEN, Petitioner, v. Joseph M. LOWERY, as County Auditor of Los Angeles County, George J. Barbour, Clerk of the Municipal Court of the Los Angeles Judicial District, County of Los Angeles; and County of Los Angeles, a political subdivision of the State of California, Respondents.

Nos. 23601, 23602.

District Court of Appeal, Second District, Division 3, California.

Feb 5, 1959.

Rehearing Denied Feb. 25, 1959.

Hearing Denied April 1, 1959.

A. J. Blackman, Los Angeles, for petitioner Woodmansee.

Frank B. Belcher, Los Angeles, for petitioner Erbsen.

Harold W. Kennedy, County Counsel, Wm. E. Lamoreaux, Asst. County Counsel, and Donald K. Byrne, Deputy County Counsel, Los Angeles, for respondents.

PER CURIAM.

Each of the petitioners in the above entitled proceedings seeks a writ of mandate directed to the respondent county auditorcontroller of the county of Los Angeles directing him to draw and pay the salary warrant of each of said petitioners as judge of the Municipal Court of the Los Angeles Judicial District, each claiming to be the lawful incumbent of the same judicial office in said court.

On and prior to the 28th day of October 1958 the petitioner Woodmansee was the duly qualified, elected and acting judge of the Justice Court of the Malibu Judicial District. On that date there was annexed to the Los Angeles Judicial District a portion of the territory formerly included in the Malibu Judicial District. The area of the Malibu Judicial District prior to the annexation comprised 106,993.90 acres while the portion thereof annexed to the city of Los Angeles consists of 38.95 acres. On October 29, 1958, a vacancy existed in the office of Judge of the Municipal Court of the Los Angeles Judicial District due to the resignation of Judge Clarke Stephens, and the petitioner Woodmansee, who is admittedly otherwise qualified to hold the office of judge of the municipal court, purporting to act pursuant to the provisions of section 71081 of the Governmnet Code, elected to succeed to the then existing vacancy in said court by filing with the County Clerk of Los Angeles County his written statement of election so to do and taking the prescribed oath of office, following which he entered upon the discharge of his duties as judge of said municipal court. On November 28, 1958, Governor Knight issued to the petitioner Erbsen his Commission as Judge of the Municipal Court of the Los Angeles Judicial District to the office formerly held by Judge Stephens, following which the petitioner Erbsen took the required oath of office and entered upon his duties as a judge of said municipal court.

While ordinarily mandate is not the appropriate remedy to determine title to public office, where as here two persons are purporting to hold the office, mandamus lies to determine which is the de facto officer; and, while legal title is not adjudicated the court examines the question of legal title, and the person who has the best claim to legal title is held to be the de facto officer. Klose v. Superior Court, 1950, 96 Cal.App.2d 913, 921, 217 P.2d 97.

The question presented is whether the petitioner Woodmansee was automatically entitled to succeed to the vacancy existing in the Municipal Court of Los Angeles Judicial District occasioned by the resignation of Judge Stephens by virtue of the annexation to said judicial district of a portion of the territory formerly within the Malibu Judicial District. If so, no vacancy existed in the office of judge of the Municipal Court of the Los Angeles Judicial District on November 28, when Governor Knight undertook to appoint the petitioner Erbsen as a judge of said court.

The answer to our problem depends in the main upon the proper interpretation to be accorded to Government Code, section 71083 ¹, which since its amendment in 1955 reads as follows:

'Whenever territory in annexed to a judicial district theretofore having a municipal court, a judge of a court partly or wholly superseded thereby shall, if eligible, succeed to the first vacant judgeship on such municipal court, whether such vacancy then exists or occurs within two years thereafter through the creation of a new judgeship or otherwise.

'Whenever the number of judges entitled to succeed as above provided exceeds the number of vacant judgeships on such municipal court, the order of their succession shall be determined as follows: by seniority as a judge within the territory annexed, and, in the case of successive annexations, within the territory annexed at the earlier date; and, in any remaining case, by lot between them.'

While somewhat awkwardly worded, the meaning of the above enactment is fairly apparent and in our view susceptible of only one interpretation. Implicitly, it recognizes, if it does not expressly so declare, that the annexation of territory from a judicial district to another judicial district having a municipal court operates in whole or in part to supersede the court in the judicial district from which the territory is annexed dependent upon whether the whole or only a part of such district is so annexed. A court may be said to be partly superseded only in two instances: (1) where a portion of its jurisdiction over particular classes of cases theretofore vested in it is withdrawn and conferred upon another court and (2) where a portion of the territory over which it previously exercised jurisdiction is taken from it and annexed to another judicial district in which there is an existing court having jurisdiction over the matters formerly within its jurisdiction. As the section deals only with the effect of the annexation of territory from one judicial district to another it is clear that when it speaks of a court being 'partly superseded thereby' it can only refer to the latter. As applied to the case at hand it is clear that it involves the precise situation with which the Legislature undertook to deal, namely, the annexation of a part of the Malibu Judicial District to the city of Los Angeles which is a judicial district having a municipal court. The section then proceeds to provide in clear and unmistakable terms that in such event the judge of the court of the judicial district from which the territory was annexed 'shall, if eligible, succeed to the first vacant judgeship on such municipal court, whether such vacancy then exists or occurs within two years thereafter through the creation of a new judgeship or otherwise.'

While petitioner Erbsen concedes that section 71083 is susceptible of this construction, he argues that it is equally susceptible of the meaning '[t]hat the quantum of territory annexed must be such as to deprive the remaining territory in the judicial district of a court, and so, in turn, deprive the existing incumbent of such office' and leave him 'a courtless Judge.' The argument is not convincing. In the first place, in order to deprive an existing judicial district of a court by annexation of territory it is necessary to annex the entire judicial district for if any less than the whole of the judicial district is annexed the court continues to exist in the remaining territory and the only result is that its boundaries are changed so as to exclude the territory annexed. ² Likewise, an incumbent judge of a judicial district from which territory is annexed may be deprived of his office by reason of the withdrawal of territory from his district by annexation only in the case where the entire territory of the judicial district is annexed to another, for otherwise he remains a judge of the court of the judicial district with boundaries limited to the remaining territory therein. Thus, petitioner Erbsen's argument is, in effect, that section 71083 has application only in those situations where an entire judicial district is annexed to a judicial district having a municipal court. Such a construction, however, does violence to the plain meaning of the language used for it gives no effect whatever to the word 'partly.'

It is a cardinal rule of statutory construction that '[w]henever possible, effect should be given to the statute as a whole, and to its every word and clause, so that no part or provision will be useless or meaningless. All the parts should be construed together and harmonized so far as possible without doing violence to the language or spirit. It will be presumed that every word, phrase, and provision was intended to have some meaning and perform some useful office, and a construction implying that words were used in vain, or that they are surplusage, will be avoided.' (45 Cal.Jur.2d, p. 626, § 117.)

If the Legislature had intended, as petitioner Erbsen's argument suggests, that the section should have application only to those cases where the effect of annexation was to deprive the incumbent judge of a judicial district of his office, it is only reasonable to assume that it would have used appropriate language to this effect.

Webster's International Dictionary defines the word 'supersede' variously as: 'To take over'; 'to take the place of, to supplant.' There seems to be no room for argument that when a portion of a judicial district is annexed to another district the court in the latter takes the place of and supplants the court which formerly exercised jurisdiction over the annexed territory prior to the annexation. The fact that the court in the judicial district from which the annexed territory is taken continues to exist does not detract from the fact that it has been effectively superseded or supplanted in...