Hamilton v. Mallard

SHAW, J.

This is an original proceeding instituted by petitioner as the owner of property in the city of Los Angeles for a writ of mandate to be directed to Walter Mallard, as city assessor of the city of Los Angeles, and to other respondents as members of the council of said city, requiring the latter to furnish Mallard, as such assessor, certain stationery and supplies mentioned in the petition, alleged to be necessary for his use in the performance of his duties as such assessor and for which he had made requisition, and commanding respondent Walter Mallard as such assessor to perform the duties of assessor of said city.

The proceeding grows out of the fact that, under and by virtue of an amendment to the charter of the city of Los Angeles purporting to authorize such action, the city council adopted an ordinance whereby it was provided that, beginning on the fifth day of March, 1917, the functions of the city of Los Angeles relating to the assessment of property for tax

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ation should he transferred to, assumed, and discharged by the officer of Los Angeles County performing similar functions in such county, except as therein provided, and that the office of city assessor be vacated and abolished; the effect of which was to transfer the functions of city assessor to the county assessor of Los Angeles County for performance. Thereafter the board of supervisors of Los Angeles County adopted a resolution approving such transfer, and assuming for and on behalf of said county the discharge and performance of such functions by the proper officer of the county, which officer, since the contrary is not made to* appear, we must assume by virtue of such transfer and the assumption of such duties, has entered upon and is now engaged in the discharge thereof.

The theory upon which petitioner bases his claim to the issuance of the writ is the invalidity of the proceedings whereby the functions of the office of city assessor were transferred to the county assessor for performance and the office abolished. In view of our conclusion that upon the facts stated in the petition, to which a general demurrer was interposed, the writ of mandate prayed for should not issue, it will be unnecessary to discuss the several grounds upon which petitioner’s attack is made upon the validity of the amendment to the charter pursuant to which the proceedings of the council in effecting the transfer were had and taken. If the office was abolished, then clearly, since Mallard could not be the incumbent of an office that had no existence, the writ would not lie. On the other hand, assuming the existence of the office as claimed by petitioner, and that Mallard is the