Becker v. Council of the City of Albany

KNIGHT, J.

Petitioners instituted this proceeding in mandamus to compel the City Council of the City of Albany to call a special election for the recall of three elective members of the board of education and one member of the city council serving

ex officio

as the fifth member of said board. The fourth elective member of the board is not involved. The sufficiency of the recall petition is not challenged, either as to its form or the number or qualification of the signers; but the council refuses to call the election upon the ground that members of the board of education are not subject to recall. The position taken by the council is not sustainable.

The city was chartered under section 8 of article XI of the state Constitution; and section 8 of the charter provides that “The members of the Council [there being five, one of whom officiates as Mayor], City Clerk, City Treasurer, City Attorney, City Judge and Chief of Police shall be elected from the City at large, and shall hold office for four years and until their successors are elected and qualified, ’ ’ and that the other officers and employees enumerated in said section shall be appointed by the council. Section 8ys of article XI of the Constitution declares that it shall be competent in all charters framed under the authority of said section 8 of article XI to provide in addition to those provisions allowable by the Constitution and by the laws of the state: “2. For the manner in which, the times at which, and the terms for which the members of boards of education shall be elected or appointed, for their qualifications, compensation and

removal,

and for the number which shall constitute any one of such boards” (italics ours) ; and pursuant to the constitutional authority thus granted section 38 of the charter of the city of Albany, which bears the title “Department of

[704]

Education,” contains the following provisions: “ (a) The control of the School Department shall be vested in a Board of Education which shall consist of five members who shall receive no compensation. A member of the City Council selected by the vote of the majority of the members of the Council as in this Charter provided shall be one of the members thereof. The other four members of the Board shall be elected at large by the electors qualified to vote, at municipal elections in the same manner and time as the members of the Council. ...” “(f) Any vacancy in the elected members of the Board shall be filled by the vote of a majority of the Board until the next general city election for municipal officers, when a member shall be elected to fill the unexpired term. ...” “(c) The Board shall have the entire management of the public schools of the City and in addition to the powers and duties prescribed by the provisions of this Charter shall have all the powers that are now or may hereafter be conferred and discharge the duties imposed, by law upon City Boards of Education.” (Stats. 1927, p. 2312.) The school district over which said board exercises its management is known as Albany Unified School District. It is created under state law (sec. 2.2020, School Code) and it is coterminous with and includes within its boundaries all of the city of Albany. The city charter contains no specific procedural provisions for the removal of any of the persons holding office by election by the voters of the city, but section 40 of said charter declares: “All general laws of the State applicable to municipal corporations, now or hereafter enacted, and which are not in conflict with the provisions of this Charter or with ordinances hereafter enacted, shall be applicable to the City ... ”; and the general law (sec. 11100, Elections Code) provides that “The holder of any elective office of any city who has held office at least six months, and against whom no recall petition has been filed within six months, may be removed or recalled at any time by the voters by following the procedure set forth in this article. ’ ’