139 Cal. App. 183 | Cal. Ct. App. | 1934
Petitioner herein prays that we issue the writ of mandate to require the councilmen of the city of Los Angeles to recognize him as a’duly appointed councilman. Our alternative writ heretofore issued and the councilmen have appeared by demurrer and by return.
Under charter provisions the city of Los Angeles is geographically divided into fifteen districts, and the legislative body designated as the council is composed of one
We have recited these provisions as an aid to the clarity of this opinion, although it should be understood at the outset that the question whether or not petitioner was a resident of a certain district when the council was voting to fill a vacancy, or whether or not the charter requires such a residence, is not before us in this proceeding. This is not a trial of the qualifications of petitioner to sit as a councilman, but is a judicial inquiry as to the legal effect of certain council proceedings, whereby petitioner was first declared appointed and then such- appointment was declared to have been reconsidered.
A question will arise herein as to the necessity of a certificate of election, and we therefore discuss the charter requirements therefor. A “certificate of election” is by the charter specifically required as to the election by vote of the people of all elective officers. No such requirement specifically applies to the appointment of any officers, and the only mention in the charter referring at all thereto
All of the facts used in this opinion are taken from a written stipulation on behalf of all the parties and filed in the proceeding. On May 8, 1934, the council convened, all members being present. The president stated: “The question before the council is on the filling of the vacancy in the Eleventh Council District, and the clerk will record the vote for the respective candidates heretofore considered. As your name is called you will answer to the roll by stating the name of the person whom you desire to fill the vacancy. ’ ’ The roll was called and petitioner received nine votes. A motion was then made and seconded “that the appointment of Robert S. MacAlister by the council, to fill the vacancy in the Eleventh Council District, be made unanimous.” Whereupon, without putting the question in any way, the president, hearing no objection, instructed the clerk to record the appointment of petitioner to fill the vacancy in the Eleventh Council District, by a unanimous vote. Thereafter the council adjourned. Upon the council’s convening on May 9th, Councilman Thrasher made a motion, which was seconded by Councilman Baker, “that the vote by which Robert S. MacAlister was appointed to fill the vacancy in the Eleventh Council District be reconsidered”. The president declared the motion out of order. Councilman Thrasher appealed from the decision of the chair, which appeal was duly seconded by Councilman Baker, the chair was not sustained and the motion to reconsider was put and carried.
On the 10th of May, 1934, petitioner took the oath of office before a notary public, the city clerk having been
Respondents claim that the oath of office taken before a notary public is ineffective, as the city clerk alone can administer the oath. The only basis for this claim is that the charter authorizes the clerk to administer such an oath. But this is not exclusive, and the oath before the notary was effective for all purposes.
We come now directly to the reconsideration proceedings. ' We gain from the authorities that an appointment to office is complete and beyond change, annulment or reconsideration by the appointing power when everything requiring the action of the appointing power has been done. The authorities are not entirely harmonious in their determination of just what is required to be done by the appointing power. After a thorough review of the decisions, however, we think the doctrine of the best reasoned eases justifies the conclusion that the appointing power is executive in nature, and anything that is definitely required to be done by a clerk after the executive has acted is ministerial, and that the appointment is complete and not subject to reconsideration even if the clerk has not acted. This reasoning, carried into actions by assemblages such as city councils, carries us to the conclusion that appointments of officers through the choice of the membership of an assembly is none the less executive in nature and that its selection by vote is the act of appointment, incapable of being affected by the requirement of subsequent clerical action or parliamentary procedure.
In Marbury v. Madison, 1 Cranch, 54 [2 L. Ed. 60], Chief Justice Marshall held that the appointment was complete after confirmation by the senate when, but not before, the president signed the commission required by him to be signed, but that the affixing of the seal by the Secretary of State was a ministerial act and not a part of the appointment. Tie announced the rule that the appointment was complete when the last act of the appointing power had been performed. In Conger v. Gilmer, 32 Cal. 75, our own Supreme Court commented extensively on Marbury v. Madison, supra, and held that the appointment by a board of
In State v. Barbour, 53 Conn. 76 [22 Atl. 686, 55 Am. Rep. 65], the common council of Hartford was proceeding under its charter t.o appoint a prosecuting attorney. A clear majority voted for Coogan. Two resolutions were then passed, one declaring the ballot null and void, the other declaring Barbour elected. The court says: “It will be observed that the business of the convention was limited to making appointments. For all the purposes of this case we may assume that its sole business was to appoint a prosecuting attorney, and that it had no other powers or duties. It had but one thing to do and, when that was done, its powers were exhausted. Unlike legislative bodies convened for purposes of ordinary legislation, it had no power to enact and repeal, and its power to reconsider was very limited, being confined to the preliminary proceedings.” The court referred at length to the Marbury-Madison and Conger-Gilmer cases and held that there was no required act to be done by the council after its choice expressed by ballot and held Coogan the legal appointee. Many cases are analyzed in this opinion, including State v. Foster, 2 Halst. (7 N. J. L.) 101, wherein the court held that reconsideration under phrliamentary law was proper in a similar case. The court says: “We cannot regard that ease as an authority controlling or materially influencing our decisioii, for several reasons. It was hastily decided and manifestly was not well considered. It confounds
In State v. Phillips, 79 Me. 506 [11 Atl. 274], under facts similar to State v. Barbour, supra, the court says: “We are aware of no authority which holds that when the election by ballot is declared and entered of record, it may be reconsidered at an adjourned meeting on a subsequent day and a new election had. When the aldermen balloted and declared the election of Blaisdell, and' it was recorded, their power over the election to that office was exhausted, unless he should decline to accept it. ”
In the case of State v. Wadhams, 64 Minn. 318 [67 N. W. 64], the court says: “ . . . he” (the appointee) “could not be deprived of it” (the office) “by any subsequent reconsideration of the vote whereby his appointment was duly confirmed.” In the case of State v. Tyrrell, 158 Wis. 425 [149 N. W. 280, Ann. Cas. 1915E, 270], the court held that the issuing of the required certificate “was ministerial and no part of the appointing power”. Draper v. State, 175 Ala. 547 [57 So. 772], as reported in Ann. Cas. 1914D, is in harmony with these referred to cases and is accompanied by a complete note and collation of authorities. There are cases not in harmony with the doctrines of the above cases, but some of them, if not most of them, can be distinguished in fact.
While we are convinced that reconsideration • of an executive act of the council cannot be had and that parliamentary rules relating thereto do not apply, except in a limited way to preliminary proceedings, we deem it appropriate to more particularly consider the proceedings had under the motion to reconsider. The charter provides that “the council shall have power to prescribe the rules of its proceedings” and the council has adopted a rule adopting Robert’s Rules of Order as to parliamentary matters not otherwise provided for. Respondents cite Robert’s Rules of Order, wherein the subject of reconsideration is treated, and stress the following: “It is in order at any time . . . during the day on which a motion has been acted upon, or the next succeeding d'ay to move to ‘Reconsider the vote’
But aside from all that has gone before, the reconsideration proceedings must be disregarded for the reason that Robert’s Rules of Order, concurred in by every accepted' parliamentary procedure unless specifically excepted, provide that the motion to reconsider “must be made ... by a member who voted with the prevailing side”. Neither Mr. Thrasher, who made the motion to reconsider, nor Mr. Baker, who seconded it, voted with the prevailing side. Again, if respondents suggest that the vote for petitioner was made unanimous and that therefore upon the final vote all of the councilmen voted on the prevailing side, we shall answer that this suggestion is refuted by three sanctions: First, under the authorities cited herein it is apparent that the council had completed 'its appointment when the roll-call had been made and recorded; second, that the charter authorizes but two methods of voting on appointments, by ballot or by roll-call, and the motion was neither; and third, the motion was never put. The president evidently considered it informal and complimentary, and merely stated it could be so entered since he heard no objection thereto.
Upon the foregoing opinion, we hold that petitioner was legally appointed a councilman.
The writ will issue as prayed.