55 Cal. App. 2d 155 | Cal. Ct. App. | 1942
This appeal by defendant presents legal questions similar to those of People ex rel. Bagshaw v. Thompson, ante, p. 147 [130 P.2d 237], and People ex rel. Bagshaw v. Bagshaw, post, p. 940 [130 P.2d 242], but based upon a different factual background. The issue herein may be stated as follows: “Are the duties of City Councilman of a municipal corporation of the sixth class, without charter, incompatible with the duties of County Supervisor of the County within which the municipality is located” when imposed on one and the same person?
The trial court found the duties of such offices to be in
The findings disclose that prior to the 18th day of April, 1938, defendant was elected to the office of city councilman of the city of Mill Valley, county of Marin, and that on or about said date, having complied with all of the requirements incident thereto, he “was legally possessed of, and ever since . . . has been and is now enjoying the immunities and privileges appertaining to said office”; that on August 27, 1940, he was elected supervisor of the same county for a term commencing on the 6th day of January, 1941; that he filed the required oath and a sufficient bond during the month of October, 1940, and was legally possessed and is now exercising the powers, etc., of the office of supervisor.
The finding that the duties of the two offices are incompatible as to function and obligation must be upheld. The Streets and Highways Code of this state, division 2, chapter 9, article 3, provides that a board of supervisors may, by resolution adopted by a four-fifths vote of its members, declare any highway in the county lying in whole or in part within a city to be a county highway (§ 1700), whereupon a copy of the resolution is forwarded to the governing body of such city, and, upon its consent thereto (§ 1701), the board of supervisors provides for the expense of the work by levying a special tax or from the proceeds of a bond issue (§ 1702), following which, the chief executive of the city and the county supervisor by agreement designate the course of the highway (§ 1705). It is possible that the chief executive and the county supervisor in whose district the proposed highway is to be located, may not agree as to the route, in which event the chairman of the board of supervisors shall designate the streets to be used. Any member of the city council may become the chief executive of the municipality.
It appears that an auditing power exists not only in the supervisors over the council, but in the council over the supervisors. The existence of this power, the right to vote, to affirm, deny, correct or modify the official actions of the other official body, in which the same official took part, or had the right to do so, results in incompatibility of the offices. In a word, it is the existence of a right of one person to contract on behalf of the city and another distinct entity—the county—as the representative of each body. (People ex rel. Chapman v. Rapsey, 16 Cal.2d 636 [107 P.2d 388] ; People ex rel. Bagshaw v. Thompson, ante, p. 147 [130 P.2d 237], and cases cited in both.)
The offices being incompatible, the first office, that of city councilman, became vacant, not at the time of the filing of either or both the oath and bond, but upon the actual assump
The findings, conclusions and judgment are modified by striking therefrom the date of October 10, 1940, in referring to the vacation of the position of city councilman, and in lieu thereof inserting the date of January 6, 1941. As so modified the judgment is affirmed, respondent to recover costs on this appeal.
Peters, P. J., and Wagler, J. pro tern., concurred.