Under section 1 of article XIV of the constitution the board of supervisors is not liable to any "further" or additional processes or penalties, for failure to fix water rates in the month of February; unless it has first been subjected to "peremptory process to compel action at the suit of any party interested," and the removal of the board of supervisors from office in a case where there has been no peremptory process to compel action, is without constitutional authority and void.

JUDGES: In Bank. Henshaw, J. Beatty, C. J., Van Fleet, J., Harrison, J., McFarland, J., and Temple, J., concurred. Garoutte, J., concurring.

OPINION

HENSHAW, Judge

[50 P. 645] This is an original proceeding in mandate, brought to compel the auditor, as the performance of an official duty, to compute and enter the taxes upon the assessment-roll in conformity with the rates fixed by orders of a body claiming to be the board of supervisors of the city and county of San Francisco, which body for convenience may hereafter be designated the old board.

The auditor made answer. Certain facts were admitted; to others, upon which issue was joined, evidence was addressed. They will be set forth as may be necessary for the consideration of the legal propositions calling for determination.

1. By respondent it is first insisted that as there are two bodies, each claiming to be and acting as the board of supervisors, before the writ prayed for may issue title to the office must be tried; that mandamus will not lie to try title to office, and that therefore the application for the writ must be denied. The facts bearing upon this matter are the following: A proceeding was instituted in the superior court based upon the provisions of article XIV, section 1, of the constitution, and upon an act entitled "An act to enable the board of supervisors," etc. (Stats. 1881, p. 54), to remove the old board from office for its failure to fix water rates in the month of February. A judgment of removal was entered against the board, and against the individual members composing it, upon September 16, 1897, and upon the same day the defendants gave notice of and perfected their appeal.

The governor of the state and the mayor of San Francisco, each deeming that vacancies were created by the judgment, and that in himself was vested the power to fill them, appointed the same twelve men as supervisors, who may be described as constituting the new board. Mixed questions both of fact and law are here presented as to the validity of the appointments, the time of qualification, and the like, which we need not pause to determine. The undisputed facts are that the new board met upon the morning of September 16, 1897, the mayor sitting with it, and then and thereafter contended and contends that it is the de jure board of supervisors, and that in any event it is the de facto board. A majority of the old board met in pursuance to adjournment upon the afternoon of the same day in the board rooms of the City Hall, and thereafter continued to hold meetings from time to time, and to transact business, the mayor and the clerk, however, refusing to recognize its official existence. Upon the morning of Monday, the twentieth day of September, the old board was in personal possession of the board rooms; the new board was convened to meet at the same place. Upon the refusal of the members of the old board to vacate their seats and the room, they were removed by physical force through the instrumentality of the police, acting under instructions of the mayor. They then convened in an adjoining committee room, and from this in like manner were ejected. Access to the board rooms being thus denied them, their subsequent meetings were held in the corridors of the City Hall, and finally in a room of a neighboring hotel. Both boards framed appropriate orders, and presented their tax rates to the auditor. He accepted neither. Upon his refusal to act, this proceeding was instituted.

It is not disputed that it is the express duty of the auditor to recognize, compute, and enter [50 P. 646] the tax levy in accordance with the rate fixed by the board of supervisors. (Pol. Code, secs. 3714, 3731, 3732.) It is not questioned but that one or the other of the rates presented is legal, and should be accepted by the auditor as an act especially enjoined upon him by law. Yet, notwithstanding that mandamus lies to compel the performance of such an act, and, indeed, that it is usually the only effective proceeding for the purpose, it is contended that in this case it will not lie, because title to office is necessarily involved. Since the auditor could make the same defense to an attempt by the new board to compel him to recognize its rate, it would then result that performance of this most important official duty could never be speedily or effectively enforced, or enforced at all. It is the undoubted rule that mandamus does not lie to try title to office. But this is founded upon the just and expedient principle that the writ will never issue when the remedy at law is plain, speedy, and adequate. An application for a writ of mandate to try title to office would be answered at once by the suggestion that the law affords adequate process and procedure by an action of quo warranto or usurpation of office. But when the writ is invoked to enforce a specific duty, and remedies at law are not adequate, aid will not be refused merely because occupancy or incumbency or title is incidentally involved. It will act under such circumstances as does equity, and inquire into and determine rights so far as, but no further than, may be necessary to the granting of the relief sought. The cases in which the doctrine is invoked that mandamus will not lie to try title to office are those like People v. Olds , 3 Cal. 167, 58 Am. Dec. 398, and Kelley v. Edwards , 69 Cal. 460, where, the respondent being admitted or proved to be at least a de facto officer, the express purpose of the action upon the part of the petitioner is to establish in himself a superior legal right to the office. And this the courts uniformly hold may not be done in mandamus. For it once being established that the respondent is a de facto officer, as the law, for grave reasons of public policy, holds valid the acts of such an officer, the question of legal title, which alone is sought to be litigated, will be relegated to another forum. So in a case such as the present, if it be either admitted or established that one or another of the boards is a de facto body, the need of further inquiry comes to an end, since the official acts of that body are entitled to recognition by the auditor and are valid. In support of this principle may be cited Lawrence v. Hanley , 84 Mich. 399; State v. Draper , 48 Mo. 213; State v. Atlantic City , 52 N. J. L. 332; People v. Scrugham, 20 Barb. 302; Crowell v. Lambert , 10 Minn. 369; State v. Johnson , 35 Fla. 2; State v. Jaynes, 19 Neb. 161; State v. John , 81 Mo. 13; Johnston v. Jones , 23 N. J. Eq. 216; Merchants' Nat. Bank v. Burnet Co ., 32 N. J. Eq. 236; State v. Williams , 25 Minn. 340.

So the question of the legal title to the office, as between the contending boards, is not involved in this proceeding, for it is the right of either to act, as contradistinguished from the title which either has to the office, into which this inquiry goes; and even if the law were not so well settled as it is in favor of the power of the court to enter upon such inquiry in mandamus, the grave consequences which must follow the present unsettled condition of municipal affairs, the delay, confusion, and injury to private and public interests by reason of the uncertainty, the disaster which would follow a failure to levy and collect taxes, and the high demand of public policy that public officers should be positively known, and the terms and tenures of their offices definitely assured, would be warrant enough to prompt a court to retain this proceeding, when no express law prohibits it.

2. Upon the hearing, argument was advanced to show the unconstitutionality of the act under which these proceedings were had. If these arguments are sound, it would of necessity follow that the judgment of the trial court is not merely voidable upon appeal, but absolutely void. These questions are passed, not as being unimportant, but as being more appropriate for determination upon the appeal from the judgment.

3. Upon the character of the proceeding before the trial court, it was insisted by respondent that it was essentially criminal, and that under a criminal judgment of forfeiture an appeal does not stay the execution of the judgment, nor reinstate the evicted officer. Some countenance is given to this contention by the definition of crime in the Penal Code (sec. 15), and by the language of the act itself, which designates the failure to fix rates as "malfeasance," of which the board is to be "deemed guilty," and provides for a "forfeiture" of office upon "conviction." But the legislature may provide that an act of misfeasance, nonfeasance, or malfeasance -- in short, any dereliction in official duty -- may work a forfeiture of office, yet that act need not necessarily be a crime. It may be made a crime punishable by forfeiture under criminal proceeding; but equally it may be made a dereliction working a forfeiture under civil process. Prolonged absence of judicial officers from the state (Const., art. VI, sec. 9), the failure of the sheriff promptly to account for fees collected (Pol. Code, sec. 4186), are acts working forfeiture of office, which may be exacted in a civil trial. In this case the proceedings ab initio were civil in form. The action was at the instance and in the name of a private individual, the defendants for process were served with the summons required in a civil action, and throughout the cause was conducted as would be a civil trial without a jury. Finally, respondent's contention that the proceeding is criminal, if upheld, works the utter destruction [50 P. 647] of his cause. For, if criminal, then indisputably defendants were denied a right reserved to them and to all by the constitution of the state, namely, that all prosecutions shall be conducted in the name and by the authority of the people of the state of California, and not by a private person. (Const., art. XI, sec. 20.) But it is not necessary to decide whether the proceeding was or was not criminal. The matter will be discussed upon the assumption that it was a civil action, since otherwise it cannot be upheld.

4. Treating, then, the judgment in the case of Fitch v. Board of Supervisors as a judgment rendered in a special civil proceeding of summary character, it is next insisted by respondent that the constitution has not provided for appeals in such proceedings, that the legislature has not the power to do so, and that the judgment of the trial court is, therefore, an absolute finality. Were this question a new one, much weight would be due respondent's argument upon the matter. But for the following reasons it cannot be opened for decision as res nova et integra: 1. Because, under identical language in the earlier constitution of the state (Const. 1849, art. IV, sec. 19; Const. 1879, art. IV, sec. 18), it was held by our predecessors that the constitution itself empowered the legislature to provide for appeals in special proceedings; 2. In re-enacting in the later constitution the language of the earlier, it will be concluded that it was adopted with the interpretation and construction which the courts had enunciated (Sharon v. Sharon , 67 Cal. 185; Lord v. Dunster , 79 Cal. 477; McBean v. Fresno , 112 Cal. 159; 53 Am. St. Rep. 191); 3. Since the adoption of the present constitution, this court, in accordance with that principle and under the authority of sections 52 and 939 of the Code of Civil Procedure, has unquestioningly retained jurisdiction of such appeals in a multitude of cases of different kinds; and this long acquiescence and sanction both by the legislature and by the courts fixes the construction; 4. The precise question was before this court in Bank in 1889, and it was then held without dissent that the present constitution was not more restrictive than the earlier, and that the supreme court had appellate jurisdiction in such cases. (Lord v. Dunster, supra .) It is said: "Under these circumstances, and in view of the fact that there is nothing in the language of the constitution of 1879 making the original jurisdiction of the superior court final or conclusive to any extent greater than was that of the county court in such cases, or restricting the right of appeal to this court, we do not feel called upon to say whether the reasoning of the court in Knowles v. Yates is sound. It is sufficient to say that the conclusion therein reached has been sanctioned by long acquiescence on the part of the legislature and the courts. It has been decided that 'a contemporaneous exposition, even of the constitution of the United States, practiced and acquiesced in for a period of years, fixes the construction.' (1 Kent's Commentaries, 465, note; Packard v. Richardson , 17 Mass. 143; 9 Am. Dec. 123; Curtis v. Leavitt , 15 N.Y. 217; People v. Fitch , 1 Cal. 523; Civ. Code, sec. 3535.) When the framers of the constitution employ terms which have received judicial interpretation, and have been put into practice under a former constitution so as to receive a definite meaning and application, it is safe to give them the signification which has been sanctioned by such interpretation, unless it is apparent from the language used that a more general or restricted sense was intended. In determining the meaning of a constitutional provision, it will be presumed that those who framed and adopted it were conversant with the interpretation which had been put upon it under the constitution from which it was copied; and this is the rule even as to provisions taken from the constitutions of other states -- the judicial construction placed upon them in the states from which they are taken will be followed by the courts in the state which adopts them."

Lastly, in In re Marks , 45 Cal. 199, which was a special proceeding such as this to remove an officer for misconduct, it was held that an appeal would lie. In that case, the act itself provided for an appeal, while now the right of appeal is conferred by sections 52 and 939 of the Code of Civil Procedure.

5. What may be the effect of the appeal in a case such as this is a question fully answered in Covarrubias v. Supervisors , 52 Cal. 622. Covarrubias, sheriff of the county, had been removed from office by summary civil procedure. Upon the day of the entry of the judgment he perfected his appeal. The supervisors, believing a vacancy to exist in the office, were about to fill it, when Covarrubias, made application to the supreme court for a writ of prohibition. It was held that he had an appeal from the judgment of the trial court, and that the appeal, when well taken, "ipso facto operated a supersedeas ." Whether, then, the judgment in such a case be considered a self-executing judgment or not, the appeal is equally self-executing and restores the officer to his rights of office until its final determination. Nor could the facts, if they be deemed proved, that the new board was appointed and qualified and met and organized before the judgment was entered and the appeal taken, affect in any way the legal situation. The case is not that of an official who, after judgment, retires from his office and leaves it to his appointed successor, who, clothed with its insignia and surrounded by its indicia, acts in an official capacity. Thereafter, if the ousted officer who had thus voluntarily retired should endeavor in mandamus to assert a legal title against one who was clearly de facto, the court, as has been said, would in such a proceeding go no further than to determine that the office was full de facto. But in this case there was never any voluntary surrender or withdrawal upon [50 P. 648] the part of the old board. It maintained its right to act, and continued to act, as a board of supervisors during all the time. So also, it is true, did the new board; but there cannot be at one and the same time two de facto officers, any more than there can be two de jure officers. This case is one where two contending boards are simultaneously acting and claiming the right to act. In such a case, it is sometimes said that the title to the office de jure draws to it the possession de facto. (State v. Atlantic City, supra .) This, however, is but a concise expression of the rule that in mandamus, where conflicting boards or officers are acting simultaneously, each under a claim of right, since there cannot be two de facto boards or officers, that one alone will be recognized as the de facto board or officer which is acting at the time under the better apparent legal right. (Braidy v. Theritt, 17 Kan. 468; Hamlin v. Kassafer , 15 Or. 456; 3 Am. St. Rep. 176; State v. Draper, supra ; State v. Johnson, supra ; Lawrence v. Hanley, supra ; State v. Atlantic City, supra .)

Until the judgment of removal, the old board was the unquestioned de jure and de facto body. Upon the day of the entry of the judgment an appeal from it was perfected. The members of the old board never abandoned their offices, but always acted and claimed the right to act. Even if it be said that the judgment was self-executing, and that a vacancy existed upon the entry of judgment by operation of law and without process of the court, it must necessarily follow, under the decision in the Covarrubias case, that it existed only until an appeal from the judgment was perfected, and that this appeal restored the incumbent to his rights of office until final determination of the controversy, and that, therefore, the better present, apparent, legal right is with the old board.

6. The final contention of the respondent in the matter is, that the levy of the old board is illegal and invalid because it lacks the signature of the mayor of the city and county of San Francisco. That signature in terms is required by the provisions of an act of the legislature of 1897, entitled "An act to require ordinances and resolutions passed by the city council, or other legislative body of any municipality, to be presented to the mayor, or other chief executive officer of such municipality, for his approval." (Stats. 1897, p. 190.) Prior to the passage of this act it was not required. (Truman v. Board , 110 Cal. 128.) But before this act it had been believed by the legislature and by the people that it would be wiser to relieve charters of cities from the operation of general laws affecting municipal affairs, lest otherwise there would be danger of the charter provisions being entirely "frittered away." In accordance with this belief, an amendment to the constitution was adopted in 1895 (Stats. 1895, p. 450) providing that "cities and towns heretofore or hereafter organized, and all charters thereof framed or adopted by authority of this constitution, except in municipal affairs, shall be subject to and controlled by general laws." The amendment is found in the italicized words. The act of 1897 unquestionably deals with a municipal affair, the mode and manner of the passage of ordinances and resolutions provided for in the charter. Under this constitutional amendment, such acts now apply only to cities and to their charters which have organized under the general scheme embraced in the municipal corporation act. (Stats. 1883, p. 93.) San Francisco is not one of such cities, and the act of 1897 has, therefore, no application to it.

For the foregoing reasons, a peremptory writ of mandate should issue as prayed for, and it is ordered accordingly.

CONCUR

GAROUTTE

GAROUTTE, J., concurring. Section 1 of the act of the legislature found in the Statutes of 1881, which deals with the fixing of water rates, casts a duty upon the board of supervisors of the city and county of San Francisco of fixing those rates in the month of February of each year. Section 8 of the same act declares: "Any board of supervisors or other legislative body of any city and county, city, or town, which shall fail or refuse to perform any of the duties prescribed by this act at the time and in the manner hereinbefore specified, shall be deemed guilty of malfeasance in office, and, upon conviction thereof at the suit of any interested party in any court of competent jurisdiction, shall be removed from office." The board of supervisors of the city and county of San Francisco failed to fix water rates in the month of February, and thereupon, at the suit of one Fitch, and under the authority found in the aforesaid section of the act of 1881, the supervisors of said city and county have been removed from office by the judgment of the superior court.

The construction given this act by the learned judge of the trial court, as evidenced by the judgment rendered, is that the word "board" has reference to and includes individually all the members of the board. This is apparent when, upon inspection, we find the judgment removing each member of the board from office. This construction is evidently the sound one, and the only reasonable one that can be given the act, for a "board of supervisors" is an entity only when in session. It could not be guilty of a malfeasance in office, and certainly could not be convicted of a malfeasance in office. Again, the "board" holds no office, and therefore of necessity could not be removed from office. Hence, the section has no intelligible meaning, unless the word "malfeasance" be [50 P. 649] held as applying to the members individually constituting the board. This is the necessary construction of the act, and such construction renders it palpably unconstitutional. It violates fundamental principles of law. The legislature has no power arbitrarily to deprive men of valuable rights. It has no power to declare an office forfeited because, forsooth, the holder of another office has failed to do his duty. Justice is not administered that way. Proceedings under this section are quasi criminal, and one person may not be punished for the crimes of another. Under this section the innocent and the guilty are punishable alike, and the law never justifies the punishment of a person who has committed no crime. A public official who has done his duty in all things is not guilty of malfeasance in office, and the legislature has no power to so declare. If section 8 of the act had declared the penalty to be a fine of five hundred dollars, or an imprisonment in the county jail for thirty days, rather than removal from office, it could hardly be contended by anybody that a supervisor who had done everything in his power to carry out the law in the fixing of water rates could be fined or imprisoned because the rates were not fixed in the month of February. No act of the legislature could furnish legal justification for such a proceeding; and the fact that this judgment is one of forfeiture of office, rather than fine or imprisonment, is wholly immaterial.

The legislature has power to fix the tenure of office. It has the power to declare that upon the happening of a certain event that official tenure shall cease; but it is evident that such was not the intention here. By this act the legislature was not fixing terms of office. This section was enacted in furtherance of the constitutional provision which provides that the legislature may declare penalties for a failure to fix water rates. The purpose of the legislature in enacting section 8 was to visit a penalty upon each member of the board of supervisors in the form of a forfeiture of office for a neglect of the board to fix rates. The phrases "guilty of malfeasance in office," and "upon conviction," which are found in the act, abundantly indicate that this was the purpose of the section.

Section 11 of article XX of the constitution declares: "Laws shall be made to exclude from office, serving on juries, and from the right of suffrage, persons convicted of bribery, perjury, forgery, malfeasance in office, or other high crimes." We here find "malfeasance in office" placed in the category of high crimes, and the legislature directly empowered to cut off the rights of citizenship from all those adjudged guilty thereof. The supervisors have been convicted of malfeasance in office. Grave consequences follow from such a conviction, and no legislative act, however explicit its intention, can visit those consequences upon innocent men.

For the foregoing reasons, the law is unconstitutional, the judgment of the trial court removing the individual members of the board of supervisors from office void, and the writ of mandate should issue. I concur in the judgment.