McKannay v. Horton

Public Officers—Mandamus—Title Incidentally Determined.—The rule that title to an office cannot be incidentally determined in mandamus is merely one of procedure,—the rule, that is to say, of . our statute, that such writ will issue only in cases where there is not another plain, speedy, and adequate, or specially prescribed statutory, remedy. The rule is not jurisdictional, and its application to a particular case involves only the exercise of sound legal discretion.

Id.—Mayor of San Francisco—Two Persons Claiming Office—Mandamus by Secretary.—Where there are two persons each claiming to be the de facto mayor of the city and county of San Francisco, each of whom has appointed a different person as his secretary, the situation is one of sufficient urgency to warrant the maintenance by one of such appointees of a proceeding in mandamus against the auditor for the approval of his claim for salary, in which it may be incidentally determined who is the de facto mayor.

Id.—De Facto Mayor—Better Legal Title.—There cannot be two de facto incumbents of one office at the same time, and where two are acting simultaneously, each under claim of right, that one alone will be recognized who appears to have the better legal title.

Id,—Conviction of Felony—Vacancy in Office.—By section 10 of article XVT of the charter, of the city and county of San Francisco, and by section 996 of the Political Code, the office of mayor of such city and county ipso facto became vacant upon the conviction of the incumbent of a felony.

Id.—Time of Conviction—Verdict and Judgment.—Where the mayor of the city and county of San Francisco had been tried on a charge of felony, a verdict of guilty thereof had been returned and entered against him, and judgment entered thereon, which had been duly certified to the board of supervisors, who thereupon declared the office vacant, then, if not before, he was convicted, and the event had occurred which, by the terms of the statute and of the charter, vacated the office.

Id.—Appeal—Effect of in Staying Judgment—Vacancy not Stayed. —The operation of the judgment convicting the mayor of a felony, so far as it created a vacancy in the office, was not suspended by the perfecting of an appeal from the judgment and the granting of a certificate of probable cause by the trial judge prior to the election by the board of supervisors of a successor to fill the vacancy in the office and prior to its declaration of a vacancy therein.

Id.—Secretary of Mayor—Appointment of Successor Effects Removal.—The secretary of the mayor of the city and county of San Francisco holds his position only during the mayor’s pleasure, and he is removed from office whenever a new secretary is appointed and assumes the duties of the office.