Wiglet v. South San Joaquin Irrigation District

ELLISON, J.,

pro tem.

This is an application for a writ of mandate to the board of directors of the South San Joaquin Irrigation District, commanding it to call an election for the recall of one of its members.

The application for the writ shows that the recall petition presented to said board conformed in all respects to the provisions of an act of the legislature as found in the statutes of the extra session of 1911, at page 135. This act provides: “The holder of any elective office of any irrigation district may be removed or recalled at any time hy the electors. ’ ’

Counsel for the board of directors take the position that the legislature, in passing the above act and extending the recall to officers of an irrigation district, acted in violation of certain provisions of the state constitution and exceeded its powers. This conclusion is attempted to be sustained by a reference to section 18 of article IV of the constitution, and to section 1 of article XXIII. Section 18 provides for the removal of certain officers, such as governor, judges, etc., by impeachment, and concludes with this sentence: “All other civil officers shall be tried for misdemeanor in office in such manner as the legislature may provide,” and section 1 of article XXIII provides for the recall of certain specified officers, viz., for the recall of elective officers of counties, cities and counties, and cities and towns of the state, but does not in express terms provide for the recall of district officers. Considering these two sections of the constitution, counsel’s position may be stated as follows: Since the constitution does not provide for the recall of district officers but does provide that they may be removed from office after a trial and conviction of misdemeanor in office, it follows that the latter provision is exclusive, and the legislature has no power to pass any act for their removal other than an act to provide for their removal for cause. The argument challenges the power of the state legislature to pass the act of 1911. It must be considered, however, that, in the absence of section 1, article XXIII, of the state constitution, the legislature would

[164]

have plenary power to pass laws providing for the recall of public officers. This results from the nature and form of our state government. As was said in