Lorbeer v. Hutchinson

Temple, J.

This appeal is from a judgment of the superior court of Los Angeles county in a proceeding by certiorari to set aside and annul the action of the board of trustees of the city of Pomona declaring vacant the office of city marshal on the eighteenth day of June, 3895, and in electing and appointing to the vacancy Thomas B. Atkinson.

The writ may be issued when an inferior tribunal, board, or officer exercising judicial functions, has exceeded the jurisdiction of such tribunal, board, or officer (Code Civ. Proc., sec. 1058); and the review cannot be extended further than to determine whether the inferior tribunal, board, or officer has regularly pursued the authority of such tribunal, board, or officer. (Code Civ. Proc., sec. 1074.)

The appointment of a city marshal by the council of Pomona was not a judicial act and cannot be reviewed by certiorari. (People v. Bush, 40 Cal. 344.)

If Lorbeer was lawfully in office, the trustees could not by declaring the office vacant deprive him of his office. They have no power to remove from office, or by any judicial inquiry to declare a vacancy. If Lorbeer failed to qualify the office was vacant, and the trustees on being informed of the fact could appoint some one else to fill the office. They get such information just as the governor and other executive officers obtain similar information. The failure to qualify —-if he did so fail—ipso facto created a vacancy. (People v. Shorb, 100 Cal. 537; 38 Am. St. Rep. 310.) In such case the board could fill the vacancy without declaring the vacancy. So declaring was a part of the order appointing, and does not indicate a judicial inquiry and determination.

The superior court, therefore, erroneously issued the writ, and its judgment vacating and setting aside the order of the trustees of Pomona was without jurisdiction and void.

The judgment is reversed and the court directed to dismiss the proceeding.

McFarland, J., and Henshaw, J. concurred.