People ex rel. Johnson v. Bagley

Gibson, C. This appeal is from a judgment entered for defendants upon stipulated facts in a quo warranto proceeding prosecuted by the attorney-general against them to determine their right to exercise the official powers and functions of the city council of the city of Stockton, of which they claimed and were adjudged by the trial court to be the duly constituted members.

The city of Stockton was, prior to the adoption of the constitution of 1879., duly incorporated under a special [345]charter, and continued to exist as such thereunder until the seventeenth day of December, 1884. On the latter date, it became organized as a municipal corporation of the fourth class, pursuant to the provision of an act approved March 13,1883, and entitled: “An act to provide for the organization, incorporation, and government of municipal corporations.” (Stats. 1883, p. 93.)

The city, under that act, maintained its corporate organization until the second day of March, 1889, when its present charter, framed by its freeholders and adopted by its electors, in accordance with and pursuant to the amendment to section 8 of article 11 of the constitution of this state, was approved by the legislature (Stats. 1889, p. 577), and thereby became the organic law of the city in place of the act of March 13, 1883.

The portion of the last-mentioned act relative to the city of Stockton provides that the city council shall consist of the mayor and twelve councilmen, seven of whom shall constitute a quorum for the transaction of business. (See secs. 601, 620, 621.) On the first day of January, 1888, by virtue of prior municipal elections regularly held, twelve persons named in the complaint, other than the defendants became the duly qualified members of the city council under said act, and entered upon the discharge of their duties as such officers. Since then, of the said twelve persons, one has died and one has resigned, but as no successor to any of the twelve has been elected or appointed, it is stipulated that unless the. defendants elected under the present charter are the legal councilmen and collectively constitute the city council, then the remaining ten of the first twelve councilmen are the legal councilmen of the city.

The present charter, which, as we have seen, went into effect March 2, 1889, provides that the city council shall consist of five members. At the first municipal election held under it, the five defendants were duly elected, and within the proper time duly qualified as members of such