237 P. 829 | Cal. Ct. App. | 1925
This is a proceeding in quo warranto instituted for the purpose of testing the right of defendant to hold the office of justice of the peace. A demurrer to the complaint was sustained without leave to amend and judgment went for defendant. Plaintiff appeals from the order sustaining the demurrer and from the judgment.
[1] The order sustaining the demurrer is not an appealable one. The appeal from the order must therefore be dismissed.
The complaint alleges that respondent was elected a justice of the peace of Santa Monica township, in Los Angeles County, in November, 1922, and that he qualified as such justice on January 4, 1923; that at all times since the date last mentioned he has been such justice except as in the complaint later alleged; that Santa Monica township is a judicial township, created under the constitution and laws of the state; that the city of Santa Monica is a municipal corporation, operating under a freeholders' charter adopted and ratified as provided in the constitution; that the freeholders' charter of the city of Santa Monica provides for a police judge; that the civil jurisdiction of the police court of Santa Monica is coextensive with that of the Santa Monica township court, but that the former has "exclusive jurisdiction over all high grade misdemeanors as provided by law"; that on April 21, 1924, a vacancy having arisen in the said office of police judge by the death of the incumbent theretofore exercising the duties of the office, respondent was appointed police judge to fill such vacancy; and that respondent accepted said appointment, thereafter qualified as such police judge and has ever since acted as such. The complaint contains other allegations, but with the view which we entertain of the law as applied to those already set forth, there is no necessity for referring to other averments of the pleading. The prayer is that it be decreed that respondent unlawfully holds the office of justice of the peace, that the office be adjudged to be vacant, and for general relief.
[2] It is contended by the friends of the court — and several authorities are cited to support the contention — that: *455
`No private citizen has any right to compel an officer to show title [to an office] until he has shown his own right in the first place to attack it." (Vrooman v. Michie,
[3] The rule is settled with unanimity that where an individual is an incumbent of a public office and, during such incumbency, is appointed or elected to another public office and enters upon the duties of the latter, the first office becomes at once vacant if the two are incompatible (Mechem on Public Officers, sec. 419; 22 R.C.L., tit. "Public Officers," sec. 63). It is contended by appellant that the two offices now held by respondent are incompatible and that under the rule stated he is an interloper in the first office entered by him, that of justice of the peace, because of his occupancy of the second office, that of police judge. The question whether the two positions are incompatible is the question of moment to be determined on the appeal.
[4] The doctrine arising from attempts by single individuals to exercise the functions of incompatible offices springs out of considerations of public policy (Mechem on Public Officers, sec. 422; 22 R.C.L. tit. "Public Officers," sec. 55; Bryan v.Cattell, 15 Iowa, 538; State v. Buttz, *456
With this introduction we proceed to inquire into the expressions of the legislative will concerning the two officers which are in question here. The officer to whom we have heretofore referred as a police judge is sometimes known in the legislative parlance of the state as a city justice of the peace, as contradistinguished from a township justice of the peace, the latter office being that to which respondent had been elected before he accepted an appointment as "police judge," and of which he has been performing the duties since such appointment, despite the objections of appellant as to his right so to do. City justices of the peace (police judges) can be selected, under the general law, only from that class of persons who have been admitted to practice law (Code Civ. Proc., sec. 103). The same test of eligibility is found in the freeholders' charter of the city of Santa Monica (Stats. 1915, p. 1724). No such requirement applies to township justices of the peace. It is required by the freeholders' charter that all elective officers of the city of Santa Monica, among which is the "police judge," shall have resided in the city continuously one year next preceding their election (Stats. 1915, p. 1724). The law contains no provision as to the place of residence of one who would become a township *459 justice of the peace. It is provided in the freeholders' charter of the city of Santa Monica that the police court of the municipality shall have exclusive jurisdiction of criminal proceedings for the violation of city ordinances, of all civil actions and proceedings arising out of such violation, and for the collection of any license required by ordinance, except when jurisdiction exists in other courts under the constitution (Stats. 1907, p. 1043, art. XIV, sec. 3). By the charter the tribunal is also given exclusive jurisdiction of certain public offenses against the statutes of the state, when not prosecuted under indictment or information (Id., p. 1044, sec. 4), and it is given concurrent jurisdiction with the justice court of Santa Monica township of civil cases arising in the city which would be cognizable under the law by the justice court (Id., p. 1044, sec. 5). By the organic law of the city the police court is required always to be open for the transaction of business, except on legal holidays (Id., p. 1044, sec. 10). No such provision of law exists as applied to township justice courts. The foregoing will exhibit some of the differences between the two tribunals over which respondent now presides, and it must be admitted that under the many authorities bearing upon the subject they probably furnish little if any weight in impelling to the view that the two offices are not compatible.
[6] There is, however, one enactment which in our view is of controlling moment in a determination of the question before us. Section 4014 of the Political Code provides, in part, italics, of course, being ours: "The officers of a township are, twojustices of the peace, . . . and such subordinate officers as are provided by law. In townships containing cities, or parts of cities, of the second, third, fourth, or fifth class, in which city justices [police judges] or recorders are elected or appointed, there shall be but one justice of the peace." It is conceded in the briefs that these provisions apply to Santa Monica township. To our minds they appear to be plain in their application and to require but little comment. They import to us that the people of Santa Monica, speaking of the place as both a city and a township, are entitled, but for the interposition of the freeholders' charter, to two officers known as township justices of the peace, not to two township justice courts which might be presided over by one and the same person. This *460
view, if not plain from what has been quoted from the section, is rendered impregnable by reference to a provision of the enactment which follows soon after the portion above set forth. The provision alluded to reads that "in townships containing cities of the first and one-half class there shall be four justices of the peace." Could these four justices be one person? If they could not, how could the two which are provided for townships like Santa Monica be one person? If the four could be one and the two could be one, what sense is there in the enactment? What efficient administration of justice is by the law then provided for townships of differing populations, classifications, of course, being made according to population? The answers to all these questions seem obvious. Then to the next step: It appears certain that section 4014 intends that, when a police judge is to be appointed in a city like Santa Monica, he is to take the place in the scheme of things of one of the township justices of the peace. It appears to us idle, under the language of section 4014, to suppose that, having been entitled to two officers, two township justices, before the adoption of a charter providing for a police judge, the people of Santa Monica must be satisfied under the law with one officer exercising two offices after the adoption of the charter. It appears to us that the provisions of section 4014 exhibits a public policy which is violated by the attempted retention of both offices by respondent. In our opinion the two offices are incompatible. Not only do we entertain that view upon a reading of section 4014, but it is supported byState v. Hadley,
[8] Our attention is called by respondent to the fact that the people of Santa Monica never availed themselves of the provision of section 4014 allowing them two township justices of the peace and that there never has been in the township more than one such justice. This circumstance boots nothing in an endeavor to ascertain the meaning of the law. The question here involved is purely one of statutory construction and that question cannot be affected by the mere fact that the statute had not been put to its full use. There the section is. The question is, merely, what does it mean? *461
Section 4428 of the Political Code provides that when a police judge is disqualified, ill, or absent from the city of his jurisdiction he may "by written request call in any justice of the same county to act in his place and stead." It is contended by the friends of the court that his language indicates a legislative intent that a person who is a justice of the peace may at the same time take a police judgeship and permanently hold both posts. We cannot follow our friends in this contention.[9] The section must be read in connection with section 4014 of the same code, which we have already construed. Section 4428 means only that, despite the provisions of section 4014, a justice of the peace may temporarily occupy the bench of a police judge, to the end that the administration of justice may not be impeded by the disqualification, illness or absence of the incumbent magistrate. Exactly this view of the law, under similar circumstances, is taken in at least one case (In re Corum,
The judgment must be reversed, but under the circumstances of the case we cannot direct the trial court to overrule the demurrer to the complaint. The demurrer was both general and special and it is stated in the briefs that the court sustained it upon the theory that the general demurrer was good, without reference to the special demurrer. This situation is also indicated by the court's refusal to permit an amendment of the complaint. The question as to the integrity of the complaint when tested by the special demurrer has not been argued in the briefs and we have not, of course, considered it. The special demurrer may be good or it may not. If it is good the complaint doubtless may be perfected by amendment. All we decide is that the pleading states a cause of action.
The appeal from the order sustaining the demurrer is dismissed. The judgment is reversed, with directions to the trial court to proceed with the action in accordance with the views expressed in this opinion.
Finlayson, P.J., and Craig, J., concurred. *462
A petition by respondent to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on June 25, 1925.
Shenk, J., dissented.