Black v. Board of Police Commissioners

California Court of Appeal

Black v. Board of Police Commissioners

119 P. 674, 17 Cal. App. 310, 1911 Cal. App. LEXIS 79

CourtCalifornia Court of Appeal

DecidedOctober 26, 1911

DocketCiv. No. 787.

StatusPublished

Cited by13 cases

This text of 119 P. 674 (Black v. Board of Police Commissioners) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Black v. Board of Police Commissioners, 119 P. 674, 17 Cal. App. 310, 1911 Cal. App. LEXIS 79 (Cal. Ct. App. 1911).

Pincite

Opinions

This court on the thirteenth day of May last rendered a decision in this case, but afterward granted a rehearing, principally that the court might give the matter further consideration in the light of what was said in the case ofBannerman v. Boyle, decided by the supreme court, June 8th last. (160 Cal. 197, [116 P. 732].)

Upon further consideration we adhere to the views expressed in the opinion filed May 13th last, and readopt the same as the views of this court. *Page 312

Unlike the case at bar, in Bannerman v. Boyle, 160 Cal. 197, [116 P. 732], the petitioner for the writ of mandate was in exclusive possession of the office as a de facto officer, and performed all the duties of the office during the time for which he claimed his salary. At the very outset of the opinion it is stated that this was conceded. The supreme court also determined that he was the de jure officer as well. Being both the de facto and the de jure officer, there is no doubt but that he could compel, by writ of mandate, the fiscal officer of the city to audit his salary demand.

But in the case at bar petitioner was not in possession of the office, and performed no duties thereof during the time for which he claimed his salary, but another person was in possession of the office, under claim and color of right, and had performed, and was still performing, all the duties thereof under such claim and color of right, and had claimed and been paid the salary therefor.

Under such circumstances the authorities cited in our former opinion expressly and pointedly hold that one out of possession of the office and performing no duties thereof cannot enforce the payment of his salary until he has had his right to the office adjudicated in an appropriate action to which the person in possession must be a party. (See, to the same effect, Dillon on Municipal Corporations, sec. 831.)

The judgment and order are therefore reversed.

Lennon, P. J., and Kerrigan, J., concurred.

The following is the opinion rendered by the court on May 13, 1911, and which is here readopted as the opinion of the court:

Free access — add to your briefcase to read the full text and ask questions with AI

This court on the thirteenth day of May last rendered a decision in this case, but afterward granted a rehearing, principally that the court might give the matter further consideration in the light of what was said in the case ofBannerman v. Boyle, decided by the supreme court, June 8th last. (160 Cal. 197, [116 P. 732].)

Upon further consideration we adhere to the views expressed in the opinion filed May 13th last, and readopt the same as the views of this court. *Page 312

Unlike the case at bar, in Bannerman v. Boyle, 160 Cal. 197, [116 P. 732], the petitioner for the writ of mandate was in exclusive possession of the office as a de facto officer, and performed all the duties of the office during the time for which he claimed his salary. At the very outset of the opinion it is stated that this was conceded. The supreme court also determined that he was the de jure officer as well. Being both the de facto and the de jure officer, there is no doubt but that he could compel, by writ of mandate, the fiscal officer of the city to audit his salary demand.

But in the case at bar petitioner was not in possession of the office, and performed no duties thereof during the time for which he claimed his salary, but another person was in possession of the office, under claim and color of right, and had performed, and was still performing, all the duties thereof under such claim and color of right, and had claimed and been paid the salary therefor.

Under such circumstances the authorities cited in our former opinion expressly and pointedly hold that one out of possession of the office and performing no duties thereof cannot enforce the payment of his salary until he has had his right to the office adjudicated in an appropriate action to which the person in possession must be a party. (See, to the same effect, Dillon on Municipal Corporations, sec. 831.)

The judgment and order are therefore reversed.

Lennon, P. J., and Kerrigan, J., concurred.

The following is the opinion rendered by the court on May 13, 1911, and which is here readopted as the opinion of the court:

Cite This Page — Counsel Stack

Bluebook (online)

119 P. 674, 17 Cal. App. 310, 1911 Cal. App. LEXIS 79, Counsel Stack Legal Research, https://law.counselstack.com/opinion/black-v-board-of-police-commissioners-calctapp-1911.

Opinions

Related

Cite This Page — Counsel Stack