JOHNSON v. FONTANA COUNTY FIRE PROTECTION DIST

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District Court of Appeal, Fourth District, California.

JOHNSON v. FONTANA COUNTY FIRE PROTECTION DIST. et al.*

Civ. 2175

Decided: August 09, 1939

A.J. Getz, of Los Angeles, for appellant. Jerome B. Kavanaugh and Swing & Swing, all of San Bernardino, for respondents. Lasher B. Gallagher, of Los Angeles, amicus curiae.

This is an appeal from a judgment denying petitioner's application for a writ of mandamus. The proceeding was instituted for the purpose of compelling the payment of a judgment which the petitioner had theretofore recovered against the Fontana County Fire Protection District and against one George Calkins.

The respondent Fire Protection District, which will hereinafter be referred to as the district, was organized on April 16, 1928, under the act of 1923 (Stats.1923, p. 431). Section 5 of that act originally provided that the board of supervisors of any county wherein such a district should be established should be the governing body of such district, with power to appoint agents and employees sufficient to maintain and operate any property acquired for the use and purposes of the district. Section 7 provided that the board of supervisors should levy taxes upon the real property in the district sufficient to defray the cost of maintenance of the district and to meet other expenditures authorized by the act. In 1925 section 5 was amended by adding a provision that the board of supervisors might appoint five commissioners as its agents to manage the affairs of the district, and section 7 was amended by providing that in case such commissioners were appointed they should recommend to the supervisors the amount of taxes to be levied. St.1925, pp. 671, 672. Shortly after the formation of this district and on April 30, 1928, the board of supervisors appointed five persons as commissioners for this district. Thereafter, by an amendment adopted in 1931, St.1931, p. 1601, § 5, the provision permitting the supervisors to appoint five commissioners was eliminated from the statute.

On October 3, 1935, the petitioner, as plaintiff, commenced an action in the superior court of San Bernardino county against “George Calkins; The Fontana County Fire Protection District, a body politic; The Fontana Union Water Company, a corporation; and the County of San Bernardino, California, a body politic and corporate”. The complaint alleged, among other things, that the plaintiff was injured on June 8, 1935, in a collision between an automobile driven by him and another automobile owned and driven by George Calkins; that the collision occurred as the result of negligence on the part of Calkins; and that Calkins was then an officer, agent and employee of the district and driving his automobile within the scope of his agency and employment. The board of supervisors were not made parties to that action, either as the governing board of the district or otherwise. Before trial, the action was dismissed as against the county of San Bernardino. The trial resulted in a judgment in favor of the Fontana Union Water Company, and a judgment for $3,500 and costs against Calkins and the district.

In his petition for a writ the petitioner alleged, among other things, that five of the respondents were “and now are the duly qualified and acting members of the Board of Fire Commissioners” of the district; that he had recovered a judgment against Calkins and the district; that Calkins is insolvent; that he had demanded payment of the judgment and had demanded that a requisition be drawn for a warrant payable to him in the amount of the judgment; that his request had been refused; and that pursuant to the act of 1923 permitting the formation of this district there is a fund in the county treasury upon which the said warrant should be drawn.

In exact accordance with the prayer of the petition an alternative writ of mandate was issued requiring the board of supervisors or the board of fire commissioners of this district to requisition the auditor to draw a warrant upon this fund in the amount of the judgment, requiring the auditor to draw the warrant and the county treasurer to pay the same, “if there be sufficient money in said fund” to the credit of the district. It is then ordered, “if it be found that there be not sufficient money in said fund to pay said warrant”, that the board of fire commissioners “is required and ordered to include the unpaid amount of said judgment in their next recommendation to the board of supervisors, specifying the amount of taxes to be levied on the taxable real property within” the district, “for the purpose of defraying the expenses of operating and maintaining” the district, and that the board of supervisors “include said amounts so recommended in their next tax levy upon the taxable real property within the said district”, and that the county treasurer be ordered to pay the said warrant when such tax, so levied, is collected.

At the hearing it was stipulated, among other things, that “said George Calkins was, at the time of said collision, acting as a volunteer fireman for said Fontana County Fire Protection District, by appointment of one Earl Reeves, who was then and there acting in the capacity of Fire Chief of the Fontana Volunteer Fire Department; that said Earl Reeves was acting as such Fire Chief under appointment by the aforementioned Fire Commissioners”. In this regard the court found that the said Calkins was never appointed to the position of volunteer fireman by the board of supervisors; that the board of supervisors had never taken any action authorizing the formation of a volunteer fire department within or for the district; that at the time of the accident in question the said Calkins was purporting to act as a volunteer fireman under appointment of one Earl Reeves who was then acting in the capacity of fire chief of the Fontana Volunteer Fire Department; that said Earl Reeves was never appointed to such position by the board of supervisors; that neither Earl Reeves nor Calkins was ever employed by the board of supervisors; and that their employment was never authorized by said board.

Among the questions raised on this appeal are whether the prior judgment is binding upon the district since the board of supervisors, its governing body, were not served and did not appear in the original action; whether that judgment is conclusive upon the question of whether or not Calkins was an agent or employee of the district; and whether the district is an entity which may be sued or a “district established by law” within the meaning of section 1714 1/212 of the Civil Code, now section 400 of the Vehicle Code, St.1935, p. 152. However, a preliminary question is whether a peremptory writ should issue since it cannot follow the terms of the alternative writ.

The court found that there was no fund in the county treasury belonging to this district which could be made available for the payment of this judgment. No contention to the contrary is here made and the judgment cannot be reversed in so far as it constitutes a refusal to order certain officers to draw a warrant upon this fund and to pay the same. The remaining provisions of the alternative writ were drawn upon the theory that there was a board of commissioners for the district charged with the duty of determining the amount of taxes necessary for the purposes of the district, and of making a recommendation in this matter, upon which the board of supervisors should act and proceed to levy the appropriate tax. This portion of the alternative writ accordingly orders the individuals alleged to constitute the fire commissioners of the district to include the amount of said judgment “in their next recommendation to the board of supervisors, specifying the amount of taxes to be levied upon the taxable real property within the limits” of said district, and orders the individuals constituting the board of supervisors to include “said amount so recommended” in their next tax levy for the district. That part of section 5 of the act of 1923 which permitted the board of supervisors to appoint five commissioners as its agents for the purpose of managing the affairs of the district was repealed in 1931, and thereafter no such board of fire commissioners was in existence nor was such a board authorized to make any recommendation with respect to taxes or to otherwise act for the district.

The general rule is that a petitioner for a writ of mandate is concluded by the terms of the alternative writ and that where an alternative writ is issued for a purpose partly proper and partly improper the court will not enforce it by a peremptory writ covering that part which is proper. Larkin v. Superior Court, 171 Cal. 719, 154 P. 841, Ann.Cas.1917D, 670; Gay v. Torrance, 145 Cal. 144, 78 P. 540, 544. In the latter case, the court said:

“It is well settled that a petitioner for a writ of mandate is concluded by the terms of the alternative writ, and that, where the alternative writ is awarded for a purpose partly proper and partly improper, the court will not enforce it by a peremptory mandamus as to that which is proper, but will give judgment for the respondent. It is incumbent upon the petitioner in such a proceeding to establish his right to the performance of the very act or acts commanded by the alternative writ, and, unless he so does, he must fail entirely.”

An exception to the general rule has been recognized where an alternative writ was directed to several respondents and it finally appeared that the writ could not issue as to certain of the respondents but might properly issue as to the others. Holtum v. Greif, 144 Cal. 521, 78 P. 11; Larkin v. Superior Court, supra. Assuming that this exception might be so extended in a proper case as to permit the issuance of a peremptory writ covering a part of the relief included within the terms of an alternative writ and omitting another portion, it could hardly be extended to a point where the relief granted was entirely different from that covered by the alternative writ and entirely different from the relief prayed for in the petition.

If it be assumed that the amount of petitioner's judgment should be included in a tax levy on property within the district, the power to determine the total amount necessary to be raised by taxation was vested in the board of supervisors as the governing body of the district. No part of the alternative writ required the supervisors to perform any act which they were authorized to perform, and they could not be ordered to accept and act upon an unauthorized recommendation. It is obvious that the trial court could not have issued a peremptory writ in accordance with the terms of the alternative writ. It would have been an idle thing to have ordered a non-existent board to perform acts which it was not authorized to perform and which, in law, it could not perform. The only order directed to the supervisors, in the alternative writ, is that they accept and act upon a recommendation which they were not authorized to receive and which could not legally be made. None of the relief represented by the terms of the alternative writ could be granted and no part thereof could be complied with if the same were ordered. To be effective or useful for any purpose any writ issued herein would necessarily have to depart entirely from the terms of the alternative writ. It follows from established rules that a peremptory writ should not issue under such circumstances.

The judgment is affirmed.

BARNARD, Presiding Justice.

We concur: MARKS, J.; GRIFFIN, J.