Kennelly v. Lowery

149 P.2d 476, 64 Cal. App. 2d 903, 1944 Cal. App. LEXIS 1142

• Court: California Court of Appeal
• Decided: June 15, 1944
• Docket: Civ. No. 14347
• Status: Published

Opinions

McCOMB, J.

This is an original application for a writ of mandate by which petitioner seeks to compel respondent to issue a warrant in his favor in the sum of $400, less legal deductions, for salary, alleged to be due petitioner as an official phonographic reporter of the Superior Court of Los Angeles County for the month of October, 1943.

These material facts alleged in the petition are admitted by the answer:

That pursuant to a resolution and order adopted by a majority of the judges of the superior court, July 27, 1943, petitioner was appointed, effective as of October 1, 1943, a regular official phonographic reporter for said court; and that under the terms of section 261b

* of the Code of Civil Procedure petitioner is entitled to receive a salary of $400 for the month of October, 1943.

It is only necessary for us to decide two questions which will be stated and answered hereunder seriatim:

First: Was petitioner a de jure official phonographic reporter for the superior court during the month of October, 1943?

This question must be answered in the negative. The law is established in California that a statute has no force whatever until the date it takes effect; that until the time arrives when it is to become effective the statute is inoperative for any purpose and all acts purporting to have been done under it prior to its effective date are void. (People v. Righthouse, 10 Cal.2d 86, 88 [72 P.2d 867]; County of Fresno v. Brix Estate Co., 194 Cal. 85, 92 [226 P. 77]; Harrison v. Colgan, 148 Cal. 69, 76 [82 P. 674] ; Miller v. Kister, 68 Cal. 142, 145 [8 P. 813]; People v. Johnston, 6 Cal. 673, 674; Bayside Fish Flour Co. v. Zellerbach, 109 Cal.App. 707, 710 [293 P. 834]; Gilmore v. Pearson, 71 Cal.App. 284, 287 et seq. [235 P. 665].)

Applying the foregoing rules to the facts admitted by the pleadings in the present case, since the statute (Code Civ.Proc., § 261b) under which petitioner claims to be an official phonographic reporter of the Superior Court of Los Angeles County did not become effective until August 4, 1943, his purported appointment as an official reporter by a majority of the judges of the Superior Court of Los Angeles County on July 27, 1943, was a nullity and of no effect.

Petitioner was not a de jure phonographic reporter of the court; he at best was a de facto reporter.

Second: May a de facto phonographic reporter compel the payment of salary by obtaining a writ of mandate?

This question must likewise be answered in the negative. The law is settled in this state that one who occupies a place merely in a de facto capacity is not, in the absence of a statutory provision to the contrary, entitled to a writ of mandate to collect the salary provided for the office or position. (Lopez v. Payne, 51 Cal.App. 447, 449 [196 P. 919]; Legerton v. Chambers, 32 Cal.App. 601, 604 [163 P. 678].)

As petitioner was merely a de facto phonographic reporter of the Superior Court of Los Angeles County, and there is no statute authorizing the issuance of a writ of mandate to assist him in collecting salary which he alleges is due him, he is not entitled to a writ of mandate.

In view of our conclusions it is unnecessary to discuss other questions urged by counsel.

For the foregoing reasons the alternative writ heretofore issued is discharged and a writ of mandate is denied.

Wood (W. J.), J., concurred.

Section 261b of the Code of Civil Procedure became effective August 4, 1943. (Statutes and Amendments to the Codes of 1943, chapter 1031, page 2968.)