Nielsen v. Gregory

California Court of Appeal Jan 25, 1923 No. Civ. No. 2610.Published

Before: Burnett

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Holding. The court held that it could not determine the title to the office of county superintendent of schools in a mandate proceeding, as such disputes must be resolved via quo warranto. Furthermore, the court found the petition moot because the respondent had already approved the petitioner's initial bond.

Issues

Whether a mandate proceeding is the proper venue to determine the title to the office of county superintendent of schools.
Whether the respondent's refusal to act on a second bond warrants relief when the petitioner's first bond was already approved.

Disposition. dismissed

Quotations verified verbatim against the opinion

“It is apparent, though, that we cannot in this proceeding finally determine the title to this office; in other words, which of the two competitive appointees is the legally constituted superintendent of schools of said county.”

“It is conceded that such question can be determined only in quo warranto proceedings.”

“The petition is denied and the proceedings dismissed.”

BURNETT, J.

An original application was made in this court for a writ of mandate to require respondent to act upon the bond of petitioner, as county superintendent of schools for Butte County, and either approve or disapprove the same. The alternative writ was issued and upon the return day Irvin Passmore was permitted to become a party to the action, and file an answer and petition, setting up his claim as the legally constituted county superintendent of schools of said county and praying that respondent be directed to approve or disapprove the bond which had been

[575]

tendered to Mm by said Passmore as such, superintendent. The whole difficulty arises from the question as to the authority of the board of trustees which made the appointment of superintendent of schools. The county of Butte is operating under a special charter ratified at a general election held November 7, 1916, and approved by the legislature on January 27, 1917. (Stats. 1917, p. 1791.) In article VII, sections 1, 2, and 3, of said charter are found all the provisions in reference to the appointment of a superintendent of schools as follows:

“There is hereby created a Board of County School Trustees, wMeh shall consist of one member from each supervisorial district of the county, to be elected at the same time, for the same term and in the same manner as the members of the Board of Supervisors, except as hereinafter provided, to serve without compensation, but the members thereof shall receive actual and necessary expenses while attending to the duties of their office, including board and lodging.

“Said Board shall meet in the office of the County Superintendent of Schools on the first Monday after the first day in December succeeding their election, and as often thereafter as may be necessary, on the written call of the Chairman of said Board or of a majority of the members thereof. The first election of County School Trustees shall be held at the general election November, 1918, and the members of the Board elected at that time shall take office on the first Monday after the first day of December, 1918, to serve for two years and thereafter said Trustees shall be elected for the same term and be classified as to time of election in the same manner as the member of the Board of Supervisors from the Supervisorial district in which they are elected. They shall elect one of their number chairman, and a majority of their number shall constitute a quorum for the transaction of business, provided no act of the board shall be binding unless three members concur therein. In the event that the Chairman shall not be present at any meeting, one of the members shall be chosen to act as chairman

Nielsen v. Gregory

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BURNETT, J.

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