*1 Black Boabd of v. Police Cohmes. PETITION prohibition for writ Superior to the Court Angeles County. Los are facts stated the court. R. J. Adcock, Ardie, and Kendrick & for Petitioner. It affirmatively petition THE appears COURT. from the filed that a in prohibition involving the same superior Angeles matter was instituted in court of Los county, a hearing denied, therein and judg had writ which yet ment has not final, appeal become for hav not ing elapsed. state, Under the constitution of this this'court jurisdiction appellate has also prohibition, and while it original jurisdiction proceedings, such it will not exer petitioner cise possesses ap the same where the peal judgment original from a had in the court where the proceeding was commenced. Under rule XXVI of the su preme court, xi], Cal. 78 Pac. this court will not issue writs the character prayed for, herein in the of some absence showing rendering proper that the writ should from issue petitioner this court. Here proceed superior elected court, and the of this action court can a re only appeal view is there rendered. apparent, therefore, considering the rule constitution and the to, should, above referred that this court under the circum authority refusing of this exercise its issue stances original writ. Writ denied. Appellate No. First October 26, 787. District.
[Civ. 1911.] Respondent, THE BOARD OF BLACK, POLICE J. N. OF THE CITY OF SAN JOSE COMMISSIONERS Appellants. al., et Salary—kule Officers—Mandamus for as to Possession—
Public Writ.—Although pub- to be Tried on Title to Office where a is and de both de lic salary, refused, mandamus will if it is Board of Police Commrs. yet, petitioner possession, where and has the writ is out of performed part during the duties of the time claims his another is in under a salary claimed, claim of and has collected the mandamus will try petitioner not lie to or to *2 any salary favor, finally in his his title is the in in the claimant latter is a Td.—Salary Suspended Captain Police—Appointment An- Warranto.— other Police Commissioners'—Mandamus—Quo police captain suspended by board of police Where was city, violating charge and fire of the commissioners charter, captain city and another was provisions of the discharging the stead, possession in appointed in his who is thereto, man- receiving office and duties sus- salary of the damus will of the in a police officer, established thereto
pended until he has his quo appointee. proceeding against warranto such second Judgment in Mandamus—Plea of Possession Id.—Erroneous Appointee—Omission judgment in manda- Another to Find.—A and reversible where petitioner is erroneous mus favor of the that plea of the defendants is an omission to find there date of plaintiff, has ever since the their instead of its possession of the office and appointment been possession plaintiff surrendered thereof when duties, and that was removed therefrom. Superior
APPEAL from of the Santa Court denying County, and from an order a new trial. John Clara Judge. Richards, E. opinion
The facts are stated in the the court. Partridge, H. Johnson, Appellants. L. and W. for H. Black, George J. C. A. Black, Clark, Respondent. HALL, J. day May last thirteenth granted a decision in rendered afterward might principally give matter rehearing, that the court light further in the of what was in the consideration said Boyle, court, supreme ease of Bannerman v. decided (160 732].) June 8th last. Pac. Cal.
Upon further consideration adhere to the views ex- we pressed opinion 13th May last, readopt filed same as the views this court. Cal. v. Boabd of Police Commbs. bar,
Unlike Boyle, the ease at Bannerman v. petitioner mandate writ of officer, was exclusive of the officeas dea performed all during of the duties for which salary. very he claimed At of the outset it is stated that this was conceded. jure court also determined that he was the de officer as well. Being the de there is the de doubt compel, by mandate, but that he could writ of fiscal city officer of the audit his demand.
But in petitioner the case at bar in possession was not performed during no duties thereof the time for which he claimed his but another under claim and color of performing, performed, and was still all the duties thereof under such claim and color of right, and had paid therefor.
Under such circumstances authorities in our cited opinion expressly former pointedly hold one *3 performing of the officeand no duties thereof can- not enforce the of his has had his to the office in an appropriate to action possession must (See, to which the be.a Municipal on effect, Corporations, 831.) Dillon sec. therefore judgment and order are reversed. The J., Kerrigan, J., and Lennon, concurred. following opinion is the rendered
The the court on readopted May 13, and which is here 1911, as the of the court:
HALL, J. brought proceeding against Plaintiff police of city board commissioners of the fire of San of mandate to said for a writ board to audit J ose $724.50, captain in' sum of as claim, police of allow his twenty-third day July, city, 1908, from the of of said February, gave judgment 1909. trial court of 1st prayed as for, said board denied a new trial. The of board for board motion said in due from the appealed order. Police Commes. appointed Plaintiff force police a member of the city year 1906, 1904, said he was December, and in appointed city. captain police said July charges violating
On certain pro- certain visions of the city, charter of said made chief police of city, against plaintiff said with the said filed (appellant). board thereupon, day, made board said ap- suspending plaintiff position, an order from his pointed Bailey thereto, one Elton R. who at once entered the occupation occupied into has ever since discharged said office and thereof, duties claimed thereof, paid city and been of San Jose the twenty- plaintiff, successor of as who at no time since said day July, second any has rendered service city Jose, any duty though San of said he has each month made demand to said office.
On the twenty-sixth day of August, 1908, board made order, reorganizing city, force of said reducing twenty-five the number thereof nineteen. designated This order named and all the members of said police force, and did not contain the name of plaintiff, but Bailey, captain did contain the name Elton R. of police, place. twenty- in his Ever since date, said as well as since day July, 1908, second said Elton Bailey occupied R. discharged formerly duties the office held and still by plaintiff, paid and has claimed and been salary thereof, while plaintiff, stated, as before has dis- charged duty thereof, suspension turned proper over authorities all property in his captain police. as said party proceeding.
Bailey is not a this Appellants, proceeding mandamus, defense *4 by occupancy as the Bailey the facts pleaded under claim plaintiff office for which in pro- seeks this payment ceeding compel salary to him the thereto. clearly
Although dispute the evidence and without proved pleaded, court made no finding facts thus the thereon, assigned and is this was an error a requiring new trial. 314 of Police Commrs. appellant regard contention of in this is manda-
mus will compel not lie to to a salary attached to an occupation pos- office'in the actual right, session of person, another color of until appropriate proceedings the title to the office has been amply determined. And this think rule, we to be the correct supported by authority. in reason and High’s
The rule is Extraordinary Legal thus stated in an (section edition): “When there is Remedies third holding position actual incumbent of an and exer- cising not its functions under color of mandamus will him a auditor to to audit claim of state salary for the of the office. In such case objection is sufficient to relief mandamus that a conflict presented, only by pro- title is can be determined himself ceedings quo warranto, and the auditor in power inquire into of the commission issued regularity disputed title. And the determine an office will not be determined title to of its to a claimant of mandamus to the office.” Selby question very carefully considered City Portland, Rep. Or. indicated, prob- officershad certain
where, as court removed, appointed successors ably improperly subject reviewing many After cases places. their indicate that cases referred to said: “None could be main- of an office an action to recover occupied officer, a de while tained by proper adjudication. Such officehas been determined properly not could be had determination parties not before the court. it would determine that the who incumbents suc- determination would assignors were intruders appellant ceeded they the court.” before The court usurpers, when proceeding. to dismiss the trial court directed appeals Delaware, errors and Lee The court (Del.) 65, 663], lays 1 Marv. Atl. down Mayor etc., distinctly holds that rule, same cannot recover the of an office in *5 315 Black v. Board of Police Commrs. of a right de officer until he has his facto action, to the office established in appropriate an in which the de officeris made party. approval a This case with cites the Oregon case above cited. Gorley City Ky. 372, The case v. 104 Louisville, Kentucky, by W. appeals S. decided court lays down rule, quotes approval with Selby 12 City 307, Portland, Rep. 14 Or. officer was also case of a removed 377]. seeking salary. his recover
Goodnow was, Police Commissioners, App. 80 Mo. like the case bar, at a proceeding in by mandamus a dis- charged policeman payment salary. The discharge granted if said: “But it should be that the reducing purpose force, was not and that the place by was filled there still be a would asking barrier to relief by relator. He is for the of salary period for a when he was not in possession of the occupied by another, right before his to the officehas been of reinstate- has, ment. been and is an question unsettled an whether salary. ought officer can recover unearned fees But it be clear an that action for the maintained cannot be party out of officebefore office has judicially ascertained, and it can- not be ascertained action for mere where occupant be a question office cannot recently undergone thorough discussion in the Delaware, Kentucky courts of Oregon, latter two being policemen, cases being and the first discharged register of secretary case of births and logically ably board of health. cases are reasoned and the conclusion reached that such action cannot main- be ’’ tained. in Meredith It was held Supervisors, Cal. try that a writ mandate does not lie to an the title to that in such an action to the fees cannot determined until the title to the office, occupied by has been determined. op v. Board Police Commrs. respondent
None of cases are in conflict with cited the rule as laid in the cases above cited. In all of the down by respondent, where allowed cases cited in mandamus, he had either *6 appropriate proceeding, established his in an title to the office occupant in which found party, had been made a or was jure to be both the de and de officer. facto making In we have not McKan- this statement overlooked nay 91 Pac. Horton, Rep. 146, St. A., persons 13 L. There two were claim- S., R. N. 661]. jure mayor ing to be de and secretaries de facto McKannay appointment San Francisco. claimed under an Taylor, from Dr. who claimed both the de to be facto jure ap- de mayor; Boyle, while other, under though recently convicted who, Schmitz, pointment mayor. jure and de to be both de felony, claimed facto alternative petition required and the supreme court Both upon Boyle and Schmitz. served writ be exercising functions some Taylor Dr. Schmitz secretary acting Boyle mayor. of the office Tay- secretary acting Dr. McKannay was Schmitz, and incum- be two de “There cannot The court said: lor. facto acting are time; where two officeat one bents will one alone claim simultaneously, under each legal title.” the better to have appears recognized who Taylor was that Dr. to determine proceeded then The court From mayor. de therefore the mayor, and jure de McKannay, his followed that necessarily this it secretary. de was both holding that McKannay case as consider We cannot may an office possession of wholly one establishing his title thereto salary without of the person in appropriate the usual claim complete actual in the ease at bar is what office. color opinion may of the which we are do, and attempted done. not be most material matter in in a erred therefore occupancy as to the presented issue upon find
failing office. Lodge A. 0. W.U. Valentine v. Grand point Under discussed upon the views we entertain is not questions raised necessary pass the other legality counsel as to in dis- action of the board charging plaintiff appointing' position. another to his Especially actual is this true in view the fact that the occupant vitally affected whose will be questions the determination of discussed, the other is not before court. denying
The order the motion for new trial is reversed. Kerrigan, J., Lennon, J., concurred. petition
A to have court, the cause heard the supreme after appeal, district court of was denied court on December 23, 1911. *7 No. 868. Appellate October 27, First [Civ. District. VALENTINE, MATHILDE Respondent, v. GRAN LODGE ANCIENT ORDER OF UNITED D OF
WORKMEN OF CALIFORNIA, Appellant. Order—Beneficiary Benefit Societies—Fraternal Certificate—Con- Payment Nonpayment.— dition of Dues—Forfeiture Where the laws of a fraternal order of which deceased was member, and from which he had beneficiary obtained a certificate payable plaintiff, as well as application terms therefor, required each member pay was all lodge assessments and designated day dues or before a month, each non- beneficiary payment, certificate was to suspended, stand without part any action on the lodge or thereof, officer the failure pay monthly member to of such assessments and dues on ipso day designated forfeited before the all under the application beneficiary certificate. The for the indorsed certificate part of the contract. was Pay Member Dues for Six Id.—Failure Months—Order Suspension—Validity — Immaterial Forfeiture of Certificate Affected.—Where the laws of the order a member towas suspended upon pay monthly his failure to period dues for a suspension months, an order thereunder, made six it is validity to inquire as of such order suspension immaterial