MOTT v. HORSTMANN (1950)

Petitioner sued for a writ of mandate ‘declaring the rights and duties of Petitioner and Respondent’ in reference to respondent's rejection of certain salary claims presented by petitioner for services as Superintendent of Parks of the city of Oakland. Respondent had rejected the claim on the ground that petitioner had forfeited his office by his acceptance of another position with the county of Contra Costa.

The cause was tried on a written stipulation of facts. Respondent defended on the ground stated and on the further ground that he was required by the Oakland charter to withhold payment of the salary demands because petitioner had, during the period of employment, accepted fees and remuneration from two other cities and had failed to deposit such fees in the Oakland treasury as required by the Oakland charter. The trial court entered judgment adverse to petitioner as a result of the employment by Contra Costa County, and ruled that he was not required to deposit the fees collected from the other municipalities. Petitioner appealed from the whole judgment. Respondent now attacks that part of the judgment denying the indebtedness of petitioner resulting from his retention of these fees from the other municipalities.

At the outset the parties argue the right of respondent to attack a portion of the judgment since he did not take an appeal. Notwithstanding the prayer of the petition for a declaration of rights the action is one in mandamus to require the respondent to perform an official duty. The pleadings were so framed and the cause was tried on that theory. The judgment declared that petitioner take nothing and our decision will be confined to the single issue whether petitioner forfeited his office under the terms of section 38 of the Oakland charter.

The provisions of this section applicable to this discussion read, Stats.1941, p. 3401: ‘No person holding any office or position under the City Government * * * shall, except as may be authorized by the Council, hold any such office or position under the City government while holding any office, or position of profit, under the government of this State, of any other State, of the United States, or of any other nation, government or country.’ We have italicized the words ‘position’ and ‘position of profit’ because the inclusion of these words after the word ‘office’ is a complete answer to all the petitioner-appellant's argument based on the assertion that the positions which he accepted were not incompatible ‘offices.’ The clear purport of the charter section is to prevent anyone holding a position of profit under the city government while he is at the same time occupying another position of profit ‘under’ some other ‘government.’

The universal rule is that a county is a state agency. Section 3902 of the Political Code provides: ‘This State is divided into counties * * *. The several counties * * * are hereby recognized as legal subdivisions of the state.’ This statute is recognized in the decisions. Hill v. Board of Supervisors, 176 Cal. 84, 167 P. 514; Reclamation District No. 1500 v. Superior Court, 171 Cal. 672, 154 P. 845; Kahn v. Sutro, 114 Cal. 316, 46 P. 87, 33 L.R.A. 620; 7 Cal.Jur., p. 387–389. Since the county is not an independent unit like a municipal corporation, but is merely an agency of the state government it follows that one holding a public office under a county holds ‘under the government of this State.’

With this premise we should enquire whether the position occupied by petitioner in Contra Costa County was an office ‘under the government of this State’ within the meaning of the charter. It was created by an ordinance of the board of supervisors acting under the statute of 1929, p. 1805. This statute prescribes the manner of appointment of the commissioners, fixes their terms of office, prescribes in detail their duties and responsibilities and treats them throughout as officers. The ordinance adopted pursuant to the statute named the three county officers who should serve ‘ex-officio’, provided for the appointment of the other six members, and required all to take the oath of office ‘as provided by law.’ The county clerk has certified that petitioner herein was ‘duly appointed to the office of commissioner * * * for a term of three years.’ Following his appointment the appellant took and filed the statutory oath of office. All these are recognized criteria of the existence of a public office. 21 Cal.Jur. p. 820; People ex rel. Chapman v. Rapsey, 16 Cal.2d 636, 107 P.2d 388, 390. The quotation in the Rapsey case from Patton v. Board of Health, 127 Cal. 388, 398, 59 P. 702, 78 Am.St.Rep. 66, is appropriate: ‘It seems to be reasonably well settled that where the legislature creates the position, prescribes the duties, and fixes the compensation, and these duties pertain to the public, and are continuing and permanent, not occasional or temporary, such position or employment is an office, and he who occupies it is an officer. In such a case, there is an unmistakable declaration by the legislature that some portion, great or small, of the sovereign functions of government are to be exercised for the benefit of the public, and the legislature has decided for itself that the employment is of sufficient dignity and importance to be deemed to be an office.’

The next question is whether it was an office under the government of this State.' The appellant herein relies on Leymel v. Johnson, 105 Cal.App. 694, 288 P. 858, a case which held that a public school teacher was not a public servant holding employment ‘under this State’ within the terms of section 19 of Article IV of the Constitution. The case is hard to reconcile with the universal holding that school districts, like counties, are political subdivisions of the state created for state purposes. Skelly v. Westminister School District, 103 Cal. 652, 658, 37 P. 643; Ridge v. Boulder Creek, etc. School Dist., 60 Cal.App.2d 453, 140 P.2d 990; Butler v. Compton Junior College Dist., 77 Cal.App.2d 719, 728, 176 P.2d 417; Dillon on Municipal Corporations, sec. 23.

The case of Satterwhite v. Garrison, 34 Cal.App. 734, 168 P. 1053, 1054, is much easier understood, and at the same time is more applicable to the question here presented. In that case it was held that a deputy district attorney of a county held an ‘office * * * under this state’ in contemplation of section 19 of Article IV of the Constitution. There a distinction was made between the inhibitions against ‘officers of the state government’ and officers holding ‘under the state.’ Here the charter section prohibited the holding of another office ‘under the government of this State’; and hence the rule of the Satterwhite case is controlling. The general statute authorizing the creation of the county planning commission and defining its powers and duties was the only law under which the commissioners could be appointed or could perform any official functions, and those functions were all prescribed by the legislature of the State. If the commissioners were not acting and holding their offices ‘under’ the government of the state there is no sensible interpretation of the charter section.

Was the double employment authorized by the Oakland city council under the terms of section 38 of the Charter? Petitioner was appointed Superintendent of Parks by the Oakland Park Directors on August 28, 1946. On November 24, 1947, he was appointed commissioner of the Contra Costa Planning Commission for a term of three years, and took the statutory oath of office as such official on December 2, 1947. On April 27, 1948, petitioner resigned from his office in Contra Costa County, and on February 3, 1949, the city council of the city of Oakland passed a resolution purporting to give its consent to the holding of the double offices.

The ineffectiveness of this resolution for any purpose seems clear. Section 38 permits the holding of two positions when ‘authorized by the Council.’ The power of appointment to the position of Superintendent of Parks rests wholly in the Board of Park Directors. This board had acted on August 28, 1946, without an authorization of the council that the appointee could accept other incompatible employment. When such employment was accepted by petitioner on December 2, 1947, the office under the Oakland charter was automatically forfeited. If the so-called waiver by the city council's resolution of February 3, 1949, was effective for any purpose that purpose was to permit the Park Commissioners to make another appointment subject to the terms of the resolution.

There is a difference of opinion as to the effect of an acceptance of a second office, some authorities holding that when the two positions are incompatible the acceptance of the second automatically forfeits the first; others hold that he is merely ineligible to hold the second and that his appointment thereto is either void or voidable. See 42 Am.Jur. pp. 940, 942. California follows the first which is known as the common law rule. Many of the cases examined follow this rule when the two offices are incompatible though there is no statute expressly declaring them to be such. The question of incompatibility then becomes one of fact and the rule of automatic forfeiture rests on the theory of public policy.

In our case the public policy is expressly declared in the charter section which forbids the acceptance of a second office and the charter, apparently in an express approval of this common law rule, declares that an officer of the municipality shall not ‘hold any such office’ after accepting any ‘position of profit’ of another public agency. This language clearly implies an intent to forfeit the municipal office whenever the occupant accepts or is ‘holding’ any other such office or position of profit.

We conclude that when the petitioner accepted the position with the Contra Costa planning commission he thereupon relinquished all right to occupy his position with the city of Oakland. Whether this be called a resignation or an automatic forfeiture makes no difference in the result. It is sufficient that the judgment of the trial court holding that petitioner was not entitled to compensation as an officer of the city of Oakland after he had accepted the position with the county of Contra Costa is in accord with the great weight of authority and the decisions of this state. See People Ex rel. Chapman v. Rapsey, 16 Cal.2d 636, 644, 107 P.2d 388.

Judgment affirmed.

NOURSE, Presiding Justice.

GOODELL and DOOLING, JJ., concur.