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District Court of Appeal, First District, Division 2, California.

PEOPLE, on Complaint of CHAPMAN, v. RAPSEY.*

Civ. 11062

Decided: December 13, 1939

Earl Warren, Atty. Gen., Leon French, Deputy Atty. Gen., and Kirkbride & Wilson, of San Mateo, for appellant. J.W. Coleberd, of So. San Francisco, for respondent.

The People sued in quo warranto to oust defendant from the office of city judge of the city of San Bruno on the ground that he had accepted another incompatible office—that of city attorney. A demurrer to the complaint was sustained, and judgment of dismissal was entered. The appeal presents the single question whether the complaint states a cause of action. It should be noted that the complaint merely pleads the procedural steps under which defendant was appointed to both positions. No facts are pleaded supporting the claim of incompatibility of the two positions.

The city of San Bruno is one of the sixth class organized under section 850 et seq. of the Municipal Corporations Act. (Deering's Gen.Laws, Act No. 5233.) The office of city judge is created by section 882 of the act. The position is filled by appointment by the city council under section 852. The city council is authorized in its discretion, to appoint a city attorney to hold during the pleasure of the council. (Sec. 852.) The duties of the city attorney are thus defined in section 879: “It shall be the duty of the city attorney to advise the city authorities and officers in all legal matters pertaining to the business of said city, to frame all ordinances and resolutions required by the city council, and perform such other legal services as said city council may require from time to time. Said city attorney shall receive such compensation as may be allowed by the city council.”

In contrast with the provisions of the act relating to the duties of city attorneys of cities of the fourth and fifth classes, it should be noted that the city attorney of a city of the sixth class is not required to prosecute criminal cases in the city court, but that his duties relate to “legal matters pertaining to the business” of the city. If he were called upon to represent the city in a civil matter to be heard in the city court the question of his qualification to act in his judicial capacity would be answered by reference to section 170 et seq. in the Code of Civil Procedure.

The judgment must be affirmed for these reasons: That the positions are not as a matter of law incompatible; that the position of city attorney held by respondent is not a public office, and that the case pleaded is not one in which quo warranto will lie.

Since the official duties of the city judge are fixed by the statute common to those of a justice of the peace, it would be necessary to find in the statute some duty required of the city attorney inconsistent with such duties. Appellant argues that he might be required to prosecute violations of ordinances which as city attorney he had drafted. But section 880 of the act imposes that duty upon the chief of police, and section 4153 of the Political Code requires the district attorney to attend before the magistrate and to conduct all prosecutions for public offenses. In his work on Public Officers, Mr. Mechem says (sec. 422): that the incompatibility of official functions that will operate to vacate the first office must be such as would “render it improper, from considerations of public policy, for one person to retain both”, but that, “The offices must subordinate, one the other, and they must, per se, have the right to interfere, one with the other, before they are incompatible at common law.” So in McQuillin on Municipal Corporations (2d Ed. revised), volume 2, page 142, it is said: “Offices which are declared by the adjudications to be incompatible ‘are such as bear a special relation to each other; one being subordinate to and interfering with the other so as, in the language of Coke, to induce the presumption that they cannot be executed with impartiality and honesty’.” We find nothing in the statutes relating to the duties of a city attorney of this class which would make his position incompatible with that of city judge. On the other hand, it is not difficult to find that he might perform all the duties assigned him by the city council under his contract of employment without conflict or interference with any of his duties as city judge. But, as we will hereafter point out, the statutes provide the remedy, and we need not look to the uncertain rules of the common law relating to incompatibility of public offices. We here refer to the provisions of section 170 et seq. of the Code of Civil Procedure, which in effect declare when the city attorney's duties are “incompatible” with those of the city judge, and which substitute for the common law rule requiring forfeiture of the first office held, the saner and more reasonable rule that the official is restrained from accepting or acting in the second office whenever the designated incompatibility arises.

But the position of city attorney of a city of the sixth class is not an “office” within the rule relating to incompatible offices. The distinction between an officer and an employee is discussed at length by McQuillin in the volume above noted at pages 57 to 65 inclusive. On page 59 it is said: “The essential characteristics which differentiate a public office from mere employment are said to be: (1) An authority conferred by law, (2) a fixed tenure of office, and (3) the power to exercise some portion of the sovereign functions of government. In a New Jersey case, office is thus distinguished from employment. ‘In every definition given of the word “office”, the features recognized as characteristic, and distinguishing it from a mere employment, are the manner of appointment and the nature of the duties to be performed—whether the duties are such as pertain to the particular official designation and are continuing and permanent and not occasional or temporary.’ ”

Applying these rules to the instant case we find that a city attorney of a city of the sixth class has no fixed tenure and no power to exercise any sovereign functions. His duties are such as the city council may require in reference to legal matters. He may be employed to conduct specific litigation and may be paid by the month or on the basis of the work done. He is not required to take an oath of office, give an official bond, or reside in or become an elector of the city. He is thus an employee performing such duties as may be required of him by the city council. It will be presumed that the council would not require him to perform duties incompatible with those of the city judge which would render the functions of both or either invalid under the statutes.

Finally, the complaint fails to plead a case where quo warranto would lie. That action may be maintained against one “who usurps, intrudes into, or unlawfully holds or exercises any public office”. (Code Civ.Proc., sec. 803.) This presents at the outset the question of what is usurpation or unlawful holding of public office, and whether it is a question to be determined under ancient common law rules or under our prevailing codes. The rule that one forfeits, or is ousted, from a public office when he accepts another which is “incompatible” is a rule of the common law. Why he was not “ousted” or debarred from accepting the second office has not been explained, except on the theory that he has made an election. But where the statutes prescribe the qualifications of and the grounds of removal from a public office the provisions of the statutes will prevail over the rule of the common law. Hence, when the Code of Civil Procedure authorizes quo warranto to oust one who usurps or unlawfully holds a public office the groundwork of the action rests upon the statutory provisions constituting usurpation and unlawful holding. Section 842 of the Political Code reads: “Provisions respecting disqualification for particular offices are contained in the constitution and in the provisions of the codes concerning the various offices.” Section 58 of the same code provides that “every elector” is eligible to the office for which he is an elector. Section 18 of article VI of the Constitution places certain restrictions on the eligibility of judges of the superior, municipal, and appellate courts, but none on the judges of inferior courts created by the legislature. Section 852 of the Municipal Corporations Act provides that the city judge shall be appointed by the city council to “hold office during the pleasure of said city council”. Section 882 provides that the city judge shall possess certain legal qualifications and section 884 provides for his disqualification to sit in certain cases. There is, however, nothing in the Constitution or the statutes which renders the city judge ineligible to hold his office because of his acceptance of some other public employment. To the contrary, the fact that the statute declares that he should hold at the pleasure of the city council negatives the theory that he forfeits his office by the acceptance of other employment.

To restate the matter—the legislature has created a public office and has furnished the means by which it shall be filled and the conditions under which it shall be occupied and vacated. The legislature having thus declared its policy it is not the function of the courts to declare that the legislature should have gone further and provided other conditions under which the office shall become vacant. For these reasons we hold that the rule of incompatibility, which is purely a court made rule, has no place in a jurisdiction where the statutes declare the rules of eligibility to public office, the conditions under which it may be held, and the grounds for which and the terms under which it may be declared vacated. Under such circumstances the courts cannot, through proceedings in quo warranto, declare that, in their judgment, other terms or grounds for removal should be applied to any particular office.

The judgment is affirmed.

NOURSE, Presiding Justice.


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Docket No: Civ. 11062

Decided: December 13, 1939

Court: District Court of Appeal, First District, Division 2, California.

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