Brennan v. Riley

California Supreme Court Jun 20, 1935 No. Sac. 4959; S. F. 15395Published

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Holding. The court held that the office of chairman of the Veterans' Welfare Board is separate from the office of board member and, because its term is not fixed by law, the chairmanship is held at the pleasure of the appointing power.

Issues

Whether the office of chairman of the Veterans' Welfare Board is held for a fixed term or at the pleasure of the governor.
Whether the court may determine the occupant of an office in a mandamus proceeding to resolve salary payment disputes.

Disposition. Reversed and remanded with instructions.

Quotations verified verbatim against the opinion

“By the wording of the section authorizing the appointment of the board and the designation of one of the veteran members as chairman it is manifest that the office of chairman is separate from the office of a member—hence the term of the chairman is not fixed.”

“Under such circumstances we are bound to conclude that the office of chairman is held at the pleasure of the appointing power.”

THE COURT.

The first of the above-entitled cases was brought by John P. Brennan in the Superior Court of Sacramento County for the purpose of securing a peremptory writ of mandate directing the controller of the state to issue a warrant in petitioner’s favor directing the treasurer of the state to pay petitioner the sum of $500 as salary for the month of December, 1934, as chairman of the veterans’ welfare board. By amendment the prayer was changed to ask that warrant issue for $416.66 upon the allegation that the board of control, with the approval of the governor, had fixed the salary at $5,000 per annum. The peremptory writ was issued and respondent appealed from the judgment to the District Court of Appeal. By reason of the filing in this court of the second action, we transferred the cause here in order that both might be determined at the same time. The second action is one brought by Thomas M. Foley, seeking a writ of mandate to compel the controller to issue him a warrant for $500 as salary for the month of January, 1935, as the director of the department of military and veterans’ affairs. The argument of the parties proceeds upon the theory that both petitioners claim to occupy the same office, which situation grows out of the following circumstances:

Section 3 of the California Veterans’ Welfare Act (Deering’s Gen. Laws, 1931, p. 4318) provides in part as follows:

“For the purposes of this act the ‘veterans welfare board’ is hereby created. This board shall consist of five members to be appointed by the governor to hold office for a term of four years and until their successors have been appointed and shall qualify. Four of such members shall be veterans. Of the members first appointed one shall be appointed to hold office until the first day of January, 1922, one until the first day of January, 1923, one until the first day of January, 1924, and two until the first day of January, 1925.

The governor shall designate one of the veteran members as chairman of the board and director of veterans’ welfare.

The secretary may or may not be a member of the board.

“Each member of the board other than the chairman and other than the secretary, if he be a member of the board, shall receive for each day’s attendance at each meeting of

[738]

Brennan v. Riley

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THE COURT.

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