Benwell v. Lowery

SHINN, J. This is a proceeding in mandamus to establish plaintiff’s right to receive the salary of a justice of the peace of Signal Hill Township in Los Angeles County, and to compel the defendant Lowery, as auditor, to draw warrants in his favor for such salary for the months of August, 1944, to September, 1945, inclusive. Plaintiff had judgment and defendants have appealed.

Judgment was rendered upon the pleadings, from which the following facts appear: Plaintiff was elected justice of the peace of the township August 25, 1942, for a term of four years, commencing January 4, 1943; he received a certificate of election, and entered upon the discharge of his official duties January 4, 1943. On August 29, 1944, the board of supervisors adopted a resolution declaring vacant the office of justice of the peace of said township by reason of the [616]absence of plaintiff from the State of California from August 2, 1944, to September 5, 1944, not on official business, and without the consent of the board of supervisors, and at the same time the board appointed Stanley A. Foutz as justice of the peace of said township. A commission of office was issued to said Foutz and he entered upon and discharged the duties of said office from on or about August 29, 1944, to September 30, 1945. On or about September 11, 1944, said board caused the locks on the court room and chambers doors to be changed and plaintiff was prevented from carrying on and performing his duties as justice of the peace until the 30th of September, 1945. On October 17, 1944, a quo warranto proceeding was instituted, upon relation of Benwell, against Foutz, and a judgment was entered therein declaring Benwell to be the justice of the peace of said township; that Foutz was guilty of usurping and unlawfully holding said office, and ousting and excluding him from the same. This judgment was affirmed on appeal September 25, 1945, (People ex rel. Benwell v. Foutz, 27 Cal.2d 1 [162 P.2d 1]) and Foutz then surrendered the office to Benwell, who entered upon and has since performed the duties thereof.

Defendant Lowery has drawn warrants in favor of Foutz for the monthly salary from August, 1944, to and including September, 1945, although the same have not been delivered, and he refuses to draw warrants in favor of plaintiff covering the salary for the same months. In the instant proceeding both defendants assert the claim of Foutz to receive the salary.

Defendants concede that plaintiff is entitled to the salary of the office, except during the period of the pendency of the quo warranto proceedings, namely, October 17, 1944, to September 25, 1945, but they contend that Foutz was entitled to the salary during that period. They rely upon sections 1130, 1131, and 1132 of the Government Code, which were taken from sections 936 and 937 of the Political Code. Original section 936 read as follows: “When the title of the incumbent of any office in this State is contested by proceedings instituted in any Court for that purpose, no warrant can thereafter be drawn or paid for any part of his salary until such proceedings have been finally determined.” In 1891 the section was amended by adding: “Provided, however, that this section shall not be construed to apply to any party to a contest or proceeding now pending or hereafter instituted,