People v. Muehe

CRAIG, Acting P. J.

The appellant by its attorney-general instituted in the county of Los Angeles a proceed-

[740]

mg in

quo warranto

upon relation of certain citizens and" taxpayers of the city of Azusa, a city of the sixth class, praying that respondents be required to show cause why they should occupy the office and exercise the powers of city trustees of said city, and that they be excluded from office as such trustees. Judgment was rendered decreeing that respondents were each legally entitled to the office of city trustee, and that each was a duly and regularly constituted and acting member of said board. The plaintiff appealed.

On November 27, 1928, four of the members of the board of trustees resigned. Thereafter, on the same date three of said persons met pursuant to a call issued prior to their resignation, and appointed successors to those who had resigned. Such appointees continued to occupy, and to perform the functions of, the trustees whom they so succeeded, until commencement of the instant proceeding "in the superior court. As heretofore observed, it was decided below that the then incumbents were not illegally occupying said offices. It is stipulated by counsel that pursuant to an election held in 1930 the offices in controversy were filled by the electorate, from which it follows that the judgment which retained in office an assertedly illegal legislative body of the city, whether supported by law and fact, or otherwise, is not authoritative as to the legality of the personnel of the Azusa board of trustees.

Unless the further prosecution of a proceeding in

quo warranto

is necessary to accomplish a purpose beyond the ouster of the defendants, the proceeding will abate by the voluntary surrender by the defendants of the offices challenged, after institution of the proceeding.

(Nichols

v.

McLean,

101 N. Y. 526 [54 Am. Rep. 730, 5 N. E. 347].) When no substantial benefit would inure to the plaintiff, it will not be continued merely to try the abstract title to the office.