Lamb v. Webb , 151 Cal. 451 ( 1907 )

At the general election held throughout the state on November 8, 1904, the plaintiff, Lamb, and the defendant Glass were the only candidates for the office of supervisor of the third supervisorial district of the county of Santa Barbara. The board of supervisors, sitting as a canvassing board, declared the vote for this office to be a tie between said two persons, and thereupon the board ordered a special election to be held in said district to elect a supervisor therefor as provided in section 1067 of the Political Code. It is admitted that the election returns showed a tie. Lamb and Glass were both candidates at the special election, which resulted in Glass receiving a majority of eleven of the votes cast thereat. The board declared the result accordingly, and a certificate of election was issued to Glass, who entered upon the duties of the office on the first Monday of July, 1905, and has ever since been and now is the acting supervisor of said district. On June 9, 1905, plaintiff, Lamb, made application to defendant Webb, as attorney-general, for leave to sue defendant Glass under section 803 of the Code of Civil Procedure, on the ground that Glass was "usurping," etc., the franchises of said office of supervisor. The purpose of the proposed action was to show that by a recounting of the ballots cast at the said general election on November 8, 1904, there was not actually a tie, but that by a legal count of said ballots plaintiff had a majority of the votes. The attorney-general, after a hearing, refused to grant the leave, whereupon the plaintiff applied to the governor of the state for an order directing the attorney-general to grant said leave for suit; but the governor refused to make such order. Thereupon plaintiff brought this present proceeding to have the attorney-general compelled bymandamus to grant the leave to sue; the defendant demurred to the complaint; the court overruled the demurrer, and gave judgment ordering a peremptory writ to issue as prayed for; and from this judgment the defendant appeals.

The application to the attorney-general for leave to sue was accompanied by a document in the form of a complaint, which plaintiff intended to file in the action which he proposed to bring against Glass if permitted to do so. This "complaint" was verified in the usual form adopted in this state for the verification of a pleading; and it constituted the only showing under oath made to the attorney-general. Section 803 of the Code of Civil Procedure, under which the application was made, is as follows:

"An action may be brought by the attorney-general, in the name of the people of this state, upon his own information, or upon the complaint of a private party, against any person who usurps, intrudes into, or unlawfully holds or exercises any public office, civil or military, or any franchise within this state. And the attorney-general must bring the action, whenever he has reason to believe that any such office or franchise has been usurped, intruded into, or unlawfully held or exercised by any person, or when he is directed to do so by the governor."

Section 1111 of the Code of Civil Procedure declares that any elector may contest the right of any person to an office to which he has been "declared elected." And the procedure is prescribed for such contest, including a recounting of the ballots. There is no provision for a contest for a recounting of the ballots where no one has been "declared elected," but section 1067 of the Political Code provides that "If at any election . . . two or more persons receive an equal and the highest number of votes, there is no choice, and a special election to fill such office must be ordered by the proper board or officer." As the board of supervisors has no power to open and count the ballots, the above provision evidently means that the board must act upon the only evidence before it, — to wit, the returns of the election officers.

Under our views of the case we do not deem it necessary to decide a number of questions discussed in the briefs — as, for instance, whether or not the discretion of the attorney-general under section 803 to grant or refuse leave to commence a quowarranto proceeding is limited only by the control of the governor as expressly prescribed in said section; whether the provision that in case of a tie (which necessarily means a tie appearing upon the returns) there shall be a special election, is not exclusive of any other proceeding in the premises; whether the submission by respondent of his claims to the voters at the special election did not estop him from objecting to such special election as a final conclusion of the whole matter. These and certain other questions we shall not discuss, because, assuming for the purposes of this appeal that the attorney-general's discretion under the said section is not entirely beyond the control of a court, and that the other points discussed should be determined in favor of respondent, still it is clear that the power of a court to compel him to violate his own judgment by ordering him to grant leave to commence a suit, against his own conviction and conscientious belief that such leave should not be given, should be exercised only where the abuse of discretion by the attorney-general in refusing the leave is extreme and clearly indefensible. When such an extreme case does not appear, a decree of a court compelling him to act against his judgment is erroneous, and is itself an abuse of discretion.

Now, if we apply the above principles to the case at bar, we find that in refusing leave to plaintiff to commence his proceeding in quo warranto, the attorney-general was not only not guilty of a violation of his discretion in any extreme sense, but was not guilty of any want of discretion. What was the case presented to him upon the application of plaintiff for leave to sue? In the first place, it appeared that there had been a tie between the parties at the general election; that in pursuance of the provisions prescribed for such an emergency a special election was ordered; that at such election the defendant Glass received a majority of the votes cast at said election and received his certificate of election; that by virtue of such election and certificate he entered upon the possession of the office and was discharging its duties; and that no objection to the regularity and legality of the said special election had ever been made, and no proceeding had ever been instituted to assail it. Here, then, was a perfect prima facie case showing that Glass had not usurped the said office, but was rightfully in its possession. And it must be remembered that the question with an attorney-general always is: Has any person usurped the franchises of the office? Did plaintiff overthrow or undermine this prima facie case by any showing which he made to the attorney-general? The only showing which he made was this: He presented to the attorney-general a document in the form of a verified complaint which he intended to file in his proposed suit. In the complant there were only two statements made which, if supported by evidence of their truth, should have had any effect on the attorney-general. The first was that at the said general election four named persons were allowed to vote who were not residents of the precincts in which they were so allowed to vote, and that these votes were counted for Glass. But this statement was made wholly and expressly "upon information and belief," and therefore was of no value to the attorney-general as the presentation of any fact. The other statement was that the election officers had counted for Glass votes which were cast upon ballots that had distinguishing marks placed there for the purpose of identifying them, and rejecting the ballots for plaintiff which were unobjectionable. The character of the distinguishing marks is not given. The plaintiff says in the said complaint that he does not know the number of ballots with such distinguishing marks which were allowed by the election board or the number with plaintiff's name on which were rejected; he does not positively identify even one. But these statements are also made upon "information and belief." Outside of this "complaint" there was no attempt at any showing whatever. No affidavit or oral testimony of any person as to any fact within his knowledge touching such election was offered. The only showing made by plaintiff before the attorney-general was, therefore, that he had been informed that certain things had occurred before the election board at the general election; and upon no further evidence he asked the attorney-general to allow him to introduce litigation and confusion into the county affairs by permitting him to use the former's name to commence a suit for the purpose of discovering by a recounting of the votes whether there might not have been some error committed by said board of election. Clearly, to our minds, this was not a sufficient showing to warrant a court in holding that the attorney-general ought to have been convinced that he had "reason to believe" that Glass had unlawfully intruded into and usurped said office of supervisor. The true rule on the subject is, in our opinion, expressed by the court in Lamoreaux v. Ellis, 89 Mich. 146, [50 N.W. 814], as follows: "It has been held by the king's bench that a chief object in requiring leave is to prevent vexatious prosecutions, and the rule is inflexible that there must be affidavits so full and positive from persons knowing the facts as to make out a clear case of right in such a way that perjury may be brought if any material allegation is false." (Citing many authorities.)

For the reasons above given the judgment appealed from is reversed, with directions to the court below to sustain the demurrer to the complaint.

Lorigan, J., and Henshaw, J., concurred.

Hearing in Bank denied.

Beatty, C.J., dissented from the order denying a hearing in Bank and filed the following opinion on the twenty-ninth day of July, 1907: —