Nesbitt v. Bolz

EDMONDS, J.

By this proceeding in

mandamus

petitioner, who is the City Clerk of the City of Arcadia and also a taxpayer and qualified elector thereof, seeks to compel respondents, councilmen of that city, to appoint new members to fill vacancies existing on the city council. A demurrer filed by respondents admits the following facts which appear from the allegations of the petition.

Arcadia is a city of the sixth class organized under the Municipal Corporations Act. (Stats. 1883, p. 93.) As such it has a city council regularly composed of five members. (Mun. Corp. Act,

supra,

sec. 851.) In May, 1939, by an election held under the Municipal Elective Officers Recall Law (Stats. 1931, p. 563, as amended), two members of the council were recalled. A majority of the electors who voted at the recall election also voted that if the recall should prevail, the city council should fill the vacancy or vacancies created. (Mun. Elec. Off. Recall Law,

supra,

sec. 15.) Before the three remaining councilmen could act upon the matter of filling the vacancies, one of them resigned, and respondents, the two others have since refused to meet and appoint new councilmen upon the ground that they do not constitute a quorum of the city council and are without authority to transact any business.

[679]

It is petitioner’s theory that under section 15 of the Municipal Elective Officers Recall Law,

supra,

respondents have the power and are under the duty to fill the vacancies on the city council created by the recall election. That section provides: “If the recall should prevail in any ease, and a majority of those voting on the question of filling the vacancy or vacancies, as the case may be, favor a special election for that purpose, the same shall be called forthwith, . . . Otherwise the council shall forthwith fill the vacancy or vacancies by appointment.’’ A further provision is: “In the event of a majority of the City Council being recalled at one and the same election, said members shall retain their offices until their successors are elected and qualify.” (Sec. 16.)