People ex rel. Flint v. Harrington , 1883 Cal. LEXIS 425 ( 1883 )

Sharpstein, J.

At the time of the alleged removal of the relator from the office of “practicing physician of the Tuba County Hospital,” the board of supervisors of that county consisted of five members, two of whom had been prohibited by an order of the Superior Court from participating in the proceedings, which it is claimed on behalf of respondent resulted in the removal of the relator from saicl office.

The three members of said board who had not been prohibited from proceeding in said matter heard evidence upon the charges laid before said board against the relator, and finally, by a vote of two to one, declared said office vacant.

Appellant’s counsel insist that even if said board had the power to declare said office vacant, a majority of a bare quorum of said board had no such power. But Dillon, in his work on “Municipal Corporations,” says that if a board of village trustees consists of five members, and “ three only were present, they would constitute a quorum,” and “ the votes of two, being a majority of the quorum, would be valid; certainly so where the three are all competent to act.” (1 Dillon on Corporations, 3d ed., 279)

In Buell v. Buckingham, 16 Iowa, 284, Dillon, J., said: —

“ Three constituted a quorum. So far all is clear. Advancing in the argument, the first proposition I lay dovvn is, that a majority of the quorum, all being present, have the poAver to act, and to decide any question upon Avhich they can act. This proposition is clear upon the authorities. Thus in Rex v. Monday, CoAAq). 538, Lord Mansfield, C. J., says: ‘ When the assembly are duly met, I take it to be clear law that the corporate act may be done by a majority of those a\4io have once regularly constituted the meeting.’ To the same effect, 2 Kent’s Com. 293: ‘A majority of the quorum may decide.’ (A. & A. on Corp. § 501; Cahill v. Kalamazoo Insurance Co. 2 Doug. (Mich.) 124; Sargent v. Webster, 13 Met. 497; In re Insurance Co. 22 Wend. 591; Ex parte Wilcocks, 7 Cowen, 402; Ex parte Wilcocks, 7 Cowen, 527, note a.)”

We are not aAvare of any case in Avhich the contrary has been held, and must regard the lavv as Avell settled that in a case like this the action of a quorum is the action of the board, and that a majority of the quorum present could do any act which a majority of the board if present might do.

We are therefore of the opinion that by the removal of the relator from the office a vacancy Avas created in it Avhich the board of supervisors Avas authorized to fill in the manner prescribed in sections 4046 and 4066 of the Political Code, and not otherAvise. The former section confers upon the board the poAver “ to fill by appointment all vacancies that may occur in county or township offices, except those of county judge and supervisors”; and the latter provides that “no appointment to fill a vacancy in office must be made by the board except upon petition, signed by at least thirty qualified electors of the county, if for a county office.” The Iuav Avhich authorizes the appointment of a practicing physician for said Yuba County Hospital fixes the term for which he shall he appointed, provides for his salary, and prescribes his duties. That, certainly, is sufficient to create an office, which Bouvier defines to be “ a right to exercise a public function or employment, and to take the fees and emoluments belonging to it.” And if an office, it is undoubtedly a county office.

As the sections of the Political Code to Avhich vve referred provide how all vacancies in county offices, with two exceptions, must be filled, and as this office is not within the exceptions, we think, in the absence of any provision in the statute which creates this office for filling a vacancy in it, that it cannot be filled “ except upon petition signed by at least thirty qualified electors.”

Ordered, that so much of the judgment appealed from as adjudges “ that the plaintiffs take nothing in this action,” and “ that the defendant C. C. Harrington is not a usurper of said office of practicing physician of the Yuba County Hospital, that he is entitled to the same ” and that he recover costs herein, is reversed; and that so much of said judgment as adjudges that said Joseph Flint is not entitled to said office of practicing physician of the Yuba County Hospital ” is affirmed.

Thornton, J., McKinstry, J., Ross, J., and McKee, J., concurred.