This is an appeal from a judgment in favor of the defendants. The complaint alleged that Arthur H. Barendt was a member of the board of health of the city and county of San Francisco duly appointed; that the mayor and chief of police of that city and county had, in the absence of the health officer and the members of the board of health, broken into the headquarters of the board and had placed in possession thereof Arthur M. Sharp as a pretended successor of plaintiff and other persons assuming to succeed plaintiff's associates. The complaint further averred that the appointees of the present mayor assumed to hold a meeting as a board of health; that they had organized by electing a president and secretary; and that they pretended to exercise authority over all the departments properly subject to the control of plaintiff and his associates. There was a further averment that defendant P.H. McCarthy claimed a right, as mayor of the city and county of San Francisco, to remove plaintiff from office, and that in the exercise of that asserted authority he had made an order purporting to declare plaintiff's place on the board of health vacated, and to substitute Arthur M. Sharp in his stead. The power and authority of the mayor in the premises was denied and an injunction was prayed restraining defendants from removing or attempting to remove plaintiff from actual posession of his office as a member of the board of health of the city and county of San Francisco.
To this complaint defendants demurred, and thereafter the matter was heard on an order to show cause. At the hearing the following facts appeared by affidavit: On January 28, 1910, Mayor P.H. McCarthy of the city and county of San Francisco, made an order removing Arthur H. Barendt, George B. Somers, William F. Wilson, Thomas W. Huntington, and Joseph E. Cutten, as members of the board of health; immediately notified the board of supervisors of such removal; and furnished said supervisors with a statement of the cause for his action. This statement was entered of record in the proceedings of the said board of supervisors. Among the causes for the removal specified in the statement were acts of plaintiff and his associates in willfully and knowingly appointing to positions in the health department of the said city and county persons not qualified for and not eligible to such positions and willfully and knowingly approving and auditing
the salary demands of the said persons." The mayor then made an order appointing Arthur M. Sharp, Germain Pouchan, Frank J. Klimm, Thomas B. Roche, and Dennis J. Murray, members of the board of health, and certificates of appointment were delivered to said appointees. On January 31, 1910, the holders of the certificates from the mayor went to the office of the board of health, presented their credentials to the chief clerk and demanded entry into the meeting room of the board. Finding the door locked, and being informed that the health officer alone had a key, they secured the services of a locksmith who opened the door for them. No member of the board of health as it was constituted prior to January 31, 1910, was present while the members of the new board were gaining entrance to the meeting room. Four days later the complaint herein was filed.
It is thoroughly settled that title to public office may not be tried in a suit for an injunction. Mr. High, in his work on injunctions, says: (4th ed., sec. 1312) "No principle of the law of injunctions and perhaps no doctrine of equity jurisprudence is more definitely fixed or more clearly established than that courts of equity will not interfere by injunction to determine questions concerning the appointment or election of public officers or their title to office, such questions being of a purely legal nature, and cognizable only by courts of law. A court of equity will not permit itself to be made the forum for determining disputed questions of title to public offices, or for the trial of contested elections, but will in all such cases leave the claimant of the office to pursue the statutory remedy, if there be such, or the common law remedy by proceedings in the nature of a quo warranto." In White v. Berry, 171 U.S. 377, [18 Sup. Ct. 917, 43 L. Ed. 199], Mr. Justice Harlan, speaking for the supreme court of the United States, quoted approvingly from the opinion in Sawyer's case, 124 U.S. 223, [8 Sup. Ct. 482, 31 L. Ed. 432], as follows: "It is equally well settled that a court of equity has no jurisdiction over the appointment and removal of public officers, whether the power of removal is vested, as well as that of appointment, in executive or administrative boards, or officers, or is intrusted to a judicial tribunal. The jurisdiction to determine the title to a public office belongs exclusively to the courts of law, and is exercised either bycertiorari, error or
appeal, or by mandamus, prohibition, quo warranto, or information in the nature of a writ of quo warranto, according to the circumstances of the case, and the mode of procedure established by common law or by statute. No English case has been found of a bill for an injunction to restrain the appointment or removal of a municipal officer. But an information in the court of chancery for the regulation of Harrow School within its undoubted jurisdiction over public charities was dismissed so far as it sought a removal of governors unlawfully elected, Sir William Grant saying: `This court, I apprehend, has no jurisdiction with regard either to the election or amotion of corporators of any description.' (Attorney-General v. Clarendon, 17 Ves. 488, 491.) In the courts of the several states the power of a court of equity to restrain by injunction the removal of a municipal officer has been denied in many well-considered cases, — citingTappen v. Gray, 3 Edw. Ch. 450, reversed by Chancellor Walworth on appeal, 9 Paige, 507, 509, 512, whose decree was affirmed by the court of errors, 7 Hill 259; Hagner v. Heyberger, 7 Watts.
Serg. 104, [42 Am. Dec. 220]; Updegraff v. Crans, 47 Pa. St. 103;Cochran v. McCleary, 22 Iowa 75; Delahanty v. Warner, 75 Ill. 185, [20 Am. Rep. 237]; Sheridan v. Colvin, 78 Ill. 237; Beebe v.Robinson, 52 Ala. 66; and Moulton v. Reid, 54 Ala. 320." He also quoted with approval the language of Judge Lurton (who was at that time a circuit judge), in Morgan v. Nunn, 84 Fed. 553, to the effect that "a court of equity will not, by injunction, restrain an executive officer from making a wrongful removal of a subordinate appointee, nor restrain the appointment of another."
But while equity will not determine title to public office in a case of this kind, appellant invokes the rule that the possession of officers de facto will be protected by injunction pending a litigation in the nature of quo warranto to determine their title. He maintains that although he and his associates are not in physical possession of the books, papers, and meeting-place of the board of health, they are the de facto
members of that body and are entitled to be restored to that possession of which they were deprived by the trickery and intrusion of the men appointed by Mayor McCarthy. But the mere fact that possession of the place of business and indicia
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This is an appeal from a judgment in favor of the defendants. The complaint alleged that Arthur H. Barendt was a member of the board of health of the city and county of San Francisco duly appointed; that the mayor and chief of police of that city and county had, in the absence of the health officer and the members of the board of health, broken into the headquarters of the board and had placed in possession thereof Arthur M. Sharp as a pretended successor of plaintiff and other persons assuming to succeed plaintiff's associates. The complaint further averred that the appointees of the present mayor assumed to hold a meeting as a board of health; that they had organized by electing a president and secretary; and that they pretended to exercise authority over all the departments properly subject to the control of plaintiff and his associates. There was a further averment that defendant P.H. McCarthy claimed a right, as mayor of the city and county of San Francisco, to remove plaintiff from office, and that in the exercise of that asserted authority he had made an order purporting to declare plaintiff's place on the board of health vacated, and to substitute Arthur M. Sharp in his stead. The power and authority of the mayor in the premises was denied and an injunction was prayed restraining defendants from removing or attempting to remove plaintiff from actual posession of his office as a member of the board of health of the city and county of San Francisco.
To this complaint defendants demurred, and thereafter the matter was heard on an order to show cause. At the hearing the following facts appeared by affidavit: On January 28, 1910, Mayor P.H. McCarthy of the city and county of San Francisco, made an order removing Arthur H. Barendt, George B. Somers, William F. Wilson, Thomas W. Huntington, and Joseph E. Cutten, as members of the board of health; immediately notified the board of supervisors of such removal; and furnished said supervisors with a statement of the cause for his action. This statement was entered of record in the proceedings of the said board of supervisors. Among the causes for the removal specified in the statement were acts of plaintiff and his associates in willfully and knowingly appointing to positions in the health department of the said city and county persons not qualified for and not eligible to such positions and willfully and knowingly approving and auditing
the salary demands of the said persons." The mayor then made an order appointing Arthur M. Sharp, Germain Pouchan, Frank J. Klimm, Thomas B. Roche, and Dennis J. Murray, members of the board of health, and certificates of appointment were delivered to said appointees. On January 31, 1910, the holders of the certificates from the mayor went to the office of the board of health, presented their credentials to the chief clerk and demanded entry into the meeting room of the board. Finding the door locked, and being informed that the health officer alone had a key, they secured the services of a locksmith who opened the door for them. No member of the board of health as it was constituted prior to January 31, 1910, was present while the members of the new board were gaining entrance to the meeting room. Four days later the complaint herein was filed.
It is thoroughly settled that title to public office may not be tried in a suit for an injunction. Mr. High, in his work on injunctions, says: (4th ed., sec. 1312) "No principle of the law of injunctions and perhaps no doctrine of equity jurisprudence is more definitely fixed or more clearly established than that courts of equity will not interfere by injunction to determine questions concerning the appointment or election of public officers or their title to office, such questions being of a purely legal nature, and cognizable only by courts of law. A court of equity will not permit itself to be made the forum for determining disputed questions of title to public offices, or for the trial of contested elections, but will in all such cases leave the claimant of the office to pursue the statutory remedy, if there be such, or the common law remedy by proceedings in the nature of a quo warranto." In White v. Berry, 171 U.S. 377, [18 Sup. Ct. 917, 43 L. Ed. 199], Mr. Justice Harlan, speaking for the supreme court of the United States, quoted approvingly from the opinion in Sawyer's case, 124 U.S. 223, [8 Sup. Ct. 482, 31 L. Ed. 432], as follows: "It is equally well settled that a court of equity has no jurisdiction over the appointment and removal of public officers, whether the power of removal is vested, as well as that of appointment, in executive or administrative boards, or officers, or is intrusted to a judicial tribunal. The jurisdiction to determine the title to a public office belongs exclusively to the courts of law, and is exercised either bycertiorari, error or
appeal, or by mandamus, prohibition, quo warranto, or information in the nature of a writ of quo warranto, according to the circumstances of the case, and the mode of procedure established by common law or by statute. No English case has been found of a bill for an injunction to restrain the appointment or removal of a municipal officer. But an information in the court of chancery for the regulation of Harrow School within its undoubted jurisdiction over public charities was dismissed so far as it sought a removal of governors unlawfully elected, Sir William Grant saying: `This court, I apprehend, has no jurisdiction with regard either to the election or amotion of corporators of any description.' (Attorney-General v. Clarendon, 17 Ves. 488, 491.) In the courts of the several states the power of a court of equity to restrain by injunction the removal of a municipal officer has been denied in many well-considered cases, — citingTappen v. Gray, 3 Edw. Ch. 450, reversed by Chancellor Walworth on appeal, 9 Paige, 507, 509, 512, whose decree was affirmed by the court of errors, 7 Hill 259; Hagner v. Heyberger, 7 Watts.
Serg. 104, [42 Am. Dec. 220]; Updegraff v. Crans, 47 Pa. St. 103;Cochran v. McCleary, 22 Iowa 75; Delahanty v. Warner, 75 Ill. 185, [20 Am. Rep. 237]; Sheridan v. Colvin, 78 Ill. 237; Beebe v.Robinson, 52 Ala. 66; and Moulton v. Reid, 54 Ala. 320." He also quoted with approval the language of Judge Lurton (who was at that time a circuit judge), in Morgan v. Nunn, 84 Fed. 553, to the effect that "a court of equity will not, by injunction, restrain an executive officer from making a wrongful removal of a subordinate appointee, nor restrain the appointment of another."
But while equity will not determine title to public office in a case of this kind, appellant invokes the rule that the possession of officers de facto will be protected by injunction pending a litigation in the nature of quo warranto to determine their title. He maintains that although he and his associates are not in physical possession of the books, papers, and meeting-place of the board of health, they are the de facto
members of that body and are entitled to be restored to that possession of which they were deprived by the trickery and intrusion of the men appointed by Mayor McCarthy. But the mere fact that possession of the place of business and indicia of an office was obtained by entrance in the absence of former holders, or even by force when they were present, does not of necessity
entitle those persons thus dispossessed to reinstatement pending the determination of the legal title. (Scott v. Sheehan, 145 Cal. 691, [79 P. 353]; Brower v. Kantner, 190 Pa. St. 182, [43 A. 7].) In the present case the respondent members of the board of health are in possession of the office, exercising the functions thereof, under color of authority. It is immaterial, for the purposes of this discussion, whether or not the mayor may remove a municipal officer without a hearing, and thus create a vacancy. To decide that question would be determining the title to the office. The membership of the board of health of San Francisco is a "municipal affair." (People v. Williamson, 135 Cal. 415, [67 P. 504], and therefore having proceeded under the provisions of the charter of the city and county of San Francisco the mayor has bestowed upon his appointees a color of title, no matter what might hereafter be determined in a proper action regarding the right of the deposed officers to notice of the charges against them and a hearing thereon. The charter of the city and county of San Francisco vests in the mayor the power to appoint members of the board of health. (Art. X, sec. 1.) The members of the board being appointed by him may be removed for cause. (Art. XVI, sec. 18.) And the mayor seems to have followed the provisions of the charter with reference to notifying the board of supervisors of the cause of removal of an officer, and his statement of such cause seems to have been entered of record in the proceedings of the board in accordance with the charter. (Art. XVI, sec. 20.) Certain it is that the appointees must be recognized as persons acting under commissions issued by the proper authority and as persons conducting the business of the board of health in the usual manner. They have color of authority, possession of theindicia of office, and they are serving the public as the board of health, having so served for several days before the appellant sought the intervention of a court of equity. That they are defacto officers admits of small doubt.
This is not a case where "two contending boards are simultaneously acting." (Morton v. Broderick, 118 Cal. 485, [50 P. 644].) In such a case title to the office de jure draws to it the possession de facto which, as was said in the case last cited, "is but a concise expression of the rule that in mandamus
where conflicting boards of 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 defacto board or officer which is acting at the time under the better apparent legal right." But here, as we have seen, the assertion of the appellant that he is a de facto officer is not based upon any claim that he and his associates have performed duties of a board of health since January 31, 1910. The case ofBraidy v. Theritt, 17 Kan. 468, has been cited by appellant as supporting his theory. In that case an officer was granted a writ after he had been out of office thirteen days. An analysis of that case, however, will show that it is really not opposed to the views here expressed. Theritt had been reelected councilman and had received his certificate. Braidy claimed the same office by appointment from the mayor, but held no certificate. When the latter presented himself at the meeting-place of the council to claim his office, Theritt caused other councilmen to withdraw with him, intending that there should be no quorum for the transaction of business. The office being legislative, Braidy could perform its functions only by participating in a meeting of the legislative body. The court found that prior to Theritt's withdrawal Braidy had not exercised any of the duties of the office; that Theritt's withdrawal from the meeting was only for the purpose of preventing a quorum from assembling, not being in any sense an abandonment of his claim to the office; and that Theritt, having the certificate of election, was entitled to be considered still in possession of the office. Braidy, not having performed any of the functions of the office before Theritt's temporary absence, and having no color of title, was properly held to be neither an officer de facto nor de jure. In this case, however, the members last appointed to the board of health had been commissioned; had entered upon the duties of the office, and were holding its indicia; and were actually serving the public as members of the board of health when plaintiff first sought relief by injunction. They had actually taken part in the business of the board. We cannot escape the conclusion that even if they obtained their advantage by trickery, as appellant asserts, they were the de facto officers at the time relief by injunction against them was sought, and that therefore the writ prayed for was properly refused. Plaintiff had a plain, speedy, and adequate remedy in the statutory equivalent for
proceedings in the nature of quo warranto. It follows that the conclusions reached by the learned chancellor who presided at the hearing in the superior court were correct and the judgment is therefore affirmed.
Shaw, J., Henshaw, J., and Lorigan, J., concurred.