City of San Diego v. Capps

JAMES, J.

Petition in

mandamus

for a writ to compel the respondent, mayor of the city of San Diego, to appoint a superintendent or chief of police. It appears from the petition, the facts not being disputed by respondent, that on the first day of May, 1915, there became effective a provision of the freeholders’ charter of the city of San Diego creating a police department. and providing for a superintendent or chief of police; that it was also provided in said charter that the mayor should appoint such chief .of police. It appears that no appointment'has been made tinder the charter provision of an executive head for the police department, and that the respondent" mayor has refused to make such appointment. It appears" also by allegations in the petition that on the first day of December, 1916, the city council of said city passed a resolution declaring that necessity existed for the appointment of a chief of police, and demanding that the

[462]

mayor perform his-duty and select some person to fill the office. The resolution further directed the city attorney to institute proceedings to compel the mayor to make' the appointment. The city of San Diego and the common council appear as petitioners. It is contended on the part of respondent that these plaintiffs are not entitled to the writ sought, because they have not such a beneficial interest in the subject matter as to make them proper parties under section 1086 of the Code of Civil Procedure. While the functions of the common council are in the main legislative, that body, has other duties devolving upon it and, in a qualified sense and subject to the restrictions of the city charter, is the governing arm of the municipality. Where officers of a city charged with the performance of ministerial duties, neglect or refuse to follow the direction of the law under which they have assumed office, it would seem most proper that the city by its common council should be permitted in a proceeding of this kind to compel such officers to fulfill the obligation which their oath has imposed upon them. That this right exists in the city is very clearly held in

City of San Buenaventura

v.

McGuire, 8