McKamy v. Bd. of Tr. of Bakersfield (1915) · DecisionDepot

McKamy v. Bd. of Tr. of Bakersfield

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Court of Appeal Jan 13, 1915 No. Civ. No. 1677.Published

Before: Shaw

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Holding. The court denied the petition for a writ of prohibition, holding that the board of trustees has the authority to fill a vacancy in the office of city marshal and that the act of appointing a successor is not a judicial act subject to prohibition.

Issues

Whether a writ of prohibition may be issued to prevent a board of trustees from filling a vacancy in the office of city marshal.
Whether the act of appointing a successor to a removed public official constitutes a judicial act subject to a writ of prohibition.

Disposition. Denied and dismissed

Quotations verified verbatim against the opinion

“The function of the writ of prohibition is to restrain the doing of judicial acts where the board or tribunal is proceeding without or in excess of jurisdiction.”

“It does not lie to prohibit the doing of ministerial acts.”

“The matter of such appointment, even though unauthorized, is not a judicial act.”

Synopsis

APPLICATION for a Writ of Prohibition originally made in the District Court of Appeal for the Second Appellate District to restrain the Board of Trustees of the City of Bakersfield from appointing a City Marshal, and also to set aside a judgment imposing a fine upon the Marshal removed.

The facts are stated in the opinion of the court.

SHAW, J.

Petitioner, who was city marshal of the city of Bakersfield, was by decree of court, pursuant to the provisions of section 772 of the Penal Code, deprived of his office and adjudged to pay a fine of five hundred dollars to W. C. Dorris, at whose relation the accusation was filed. The proceeding is brought against the board of trustees of the city of Bakersfield; neither the court which rendered the decree, nor Dorris, the relator, being made a party herein. The prayer of the petition is that a writ of prohibition issue directed to said board of trustees and its members, prohibiting it and them from proceeding to appoint a city marshal to fill the vacancy created in said office by the removal of petitioner therefrom, and also asking that the judgment rendered in favor of said W. C. Dorris, relator, for five hundred dollars be set aside. The proceeding is not directed against that part of the decree adjudging that petitioner be deprived of his office. It also appears from the record that the petitioner unsuccessfully sought to have the proceeding reviewed in the supreme court both on appeal and by writ of review, the denial of which writ, since an appeal does not lie

(People

McKamy,

168 Cal. 531, [143 Pac. 752], must be deemed an adjudication of the regularity of the proceeding in which the decree was rendered.

[317]

Since no attack is made upon the final decree adjudging that petitioner be deprived of his office, it must follow that a vacancy exists in the office of city marshal of the city of Bakersfield, which vacancy the board of trustees is empowered to fill by appointment. (See Gen. Laws, Municipal Corporation, 5th class.)

Moreover, the act of appointing a successor to petitioner, whether ministerial or executive, at all events is not judicial in its character. The function of the writ of prohibition is to restrain the doing of judicial acts where the board or tribunal is proceeding without or in excess of jurisdiction. (Code Civ. Proc., sec. 1102.) It does not lie to prohibit the doing of ministerial acts. See

Camron

McKamy v. Bd. of Tr. of Bakersfield

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Synopsis

SHAW, J.

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