People ex rel. Kraemer v. Bagshaw

WARD, J. This appeal by defendant presents legal questions similar to those of People ex rel. Bagshaw v. Thompson, ante, p. 147 [130 P.2d 237], and People ex rel. Bagshaw v. Bagshaw, post, p. 940 [130 P.2d 242], but based upon a different factual background. The issue herein may be stated as follows: “Are the duties of City Councilman of a municipal corporation of the sixth class, without charter, incompatible with the duties of County Supervisor of the County within which the municipality is located” when imposed on one and the same person?

The trial court found the duties of such offices to be in[156]compatible, and that appellant, since the filing of the oath and of the bond for the office of supervisor, “has unlawfully-usurped and unlawfully held the said office of City Councilman.” In a “Memorandum of Decision and Order for Findings” in People ex rel. Bagshaw v. Thompson, supra, involving, as stated, a similar issue, the trial judge stated: “Having accepted the office of director of the bridge district, after having qualified as supervisor, he now holds the office of director to the exclusion of the other two.” Ineompatability in the duties of city councilman and bridge director is not an issue raised by the pleadings, and' we therefore refrain from expressing an opinion on that subject.

The findings disclose that prior to the 18th day of April, 1938, defendant was elected to the office of city councilman of the city of Mill Valley, county of Marin, and that on or about said date, having complied with all of the requirements incident thereto, he “was legally possessed of, and ever since . . . has been and is now enjoying the immunities and privileges appertaining to said office”; that on August 27, 1940, he was elected supervisor of the same county for a term commencing on the 6th day of January, 1941; that he filed the required oath and a sufficient bond during the month of October, 1940, and was legally possessed and is now exercising the powers, etc., of the office of supervisor.

The finding that the duties of the two offices are incompatible as to function and obligation must be upheld. The Streets and Highways Code of this state, division 2, chapter 9, article 3, provides that a board of supervisors may, by resolution adopted by a four-fifths vote of its members, declare any highway in the county lying in whole or in part within a city to be a county highway (§ 1700), whereupon a copy of the resolution is forwarded to the governing body of such city, and, upon its consent thereto (§ 1701), the board of supervisors provides for the expense of the work by levying a special tax or from the proceeds of a bond issue (§ 1702), following which, the chief executive of the city and the county supervisor by agreement designate the course of the highway (§ 1705). It is possible that the chief executive and the county supervisor in whose district the proposed highway is to be located, may not agree as to the route, in which event the chairman of the board of supervisors shall designate the streets to be used. Any member of the city council may become the chief executive of the municipality.