Ackerman v. Moody
Before: Conrey
Synopsis
Municipal Corporations—San Diego Charter—Board of Education —Recall.—Under the charter of the city of San Diego, the right to recall members of the board of education equally with the right to elect such members is vested in the city.
Id.—Mandamus.—The city auditor of San Diego may be compelled by mandamus to make his certificate, ás prescribed by section 14 of chapter 2 of article II of the charter, to the effect that the indebtedness to be incurred under a resolution calling a primary election for the purpose of nominating candidates for the offices of members of the board of education in case the incumbents be recalled at a recall election, might be so incurred without the violation of any charter provision.
CONREY, P. J.
In accordance with proceedings regularly taken for that purpose the common council of the city of San
[462]
Diego, on the thirty-first day of July, 1918, adopted a resolution calling for a primary election to be held in said city for the purpose of nominating candidates for three offices of members of the board of education of that city, in case the incumbents be, recalled at a proposed recall election. The resolution was duly referred and presented to the defendant for the purpose of procuring from him a written certificate to the effect that the indebtedness incurred under the terms of said resolution could be incurred.without the violation of any of the provisions of the freeholders’ charter of the city. The defendant has refuséd to make the required certificate, basing his refusal upon the ground that the recall provisions of the charter do not apply to members of the board of education. In this proceeding the petitioners pray for a writ of mandate commanding the defendant to make the demanded certificate.
The duty of the city auditor to make certificates' of the kind here required is prescribed by section 14 of chapter 2 of article II of the charter of the city of San Diego. That he must do this in a proper case is not denied.
(Higgins
v.
San Diego Water Co.,
118 Cal. 524, 551, [45 Pac. 824, 50 Pac. 670];
Pollok
v.
City of San Diego,
118 Cal. 593, 596, [50 Pac. 769].)
Section 8% of article XI of the constitution of California, as amended October 10, 1911, and also ás amended November 3, 1914, provides that “it shall be competent, in all charters framed under the' authority given by section eight of this article, to provide, in addition to those provisions allowable by this constitution and by the laws of the state as follows: . . . 2. For the manner in which, the times at which, and the terms for which the members of boards of education shall be elected or appointed, for their qualifications, compensation and removal, and for the number which shall constitute any one of such boards.” The charter of the city of San Diego at all times since its adoption in 1889 has provided that the government of the San Diego school district shall be vested in a board of education. As amended in the year 1905, section 2 of article VII of the charter reads as follows: “The government of the. San Diego school district shall be vested in a board of education, composed of five persons, who shall be elected by the electors of the city of San Diego, at large, at the same time and in the same manner as other municipal officers, and each of whom shall have been for two years a resi
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