Drescher v. Board of Supervisors

California Supreme Court May 31, 1923 No. S. F. No. 10706Published

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Holding. The court denied a petition for a writ of mandamus to compel the appointment of an irrigation district board member because the office is currently occupied by an incumbent under a claim of right. Mandamus is an inappropriate remedy to try the title to a public office.

Issues

Whether a writ of mandamus may be issued to compel the appointment of a public official when the office is currently occupied by another person under a claim of right.

Disposition. Denied

Quotations verified verbatim against the opinion

“Under the circumstances a writ of mandamus should not be issued because, in effect, it would require us to try the title to the office.”

“The writ should not be granted until it has been established by judicial process that there is a vacancy to be filled.”

THE COURT. This is an application for a writ of mandamus to compel the respondent Board of Supervisors to appoint a member of the Honcut-Yuba Irrigation District, upon the ground that there is a vacancy in the board of that district representing division one.

[235]The application shows that the position is now being occupied by one C. F. Cox, who is performing the duties of the office with the acquiescence of his associates and under claim of right.

Under the circumstances a writ of mandamus should not be issued because, in effect, it would require us to try the title to the office. The writ should not be granted until it has been established by judicial process that there is a vacancy to be filled. (Kelly v. Edwards, 69 Cal. 460 [11 Pac. 1].)

The petition is denied.

Drescher v. Board of Supervisors

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