People ex rel. Whitney v. Board of Delegates of San Francisco Fire Department

14 Cal. 479

• Court: California Supreme Court
• Decided: July 1, 1860
• Status: Published

Opinions

Cope, J.

delivered the opinion of the Court—Field, C. J. concurring.

This is a certiorari granted by the District Court of the Twelfth Judicial District, and directed to the Board of Delegates of the Fire Department of the City and County of San Francisco. The writ was granted upon the petition of the relator, setting forth that in certain jiroceedings affecting his right to the office of Chief Engineer of the department, the Board of Delegates had exceeded its jurisdiction, and praying the Court to review the action of the Board in the premises, and to grant such relief as should be deemed just and proper. The petition represents, among other things, that on the first Monday of December, 1857, an election was held in the city of San Francisco, in pursuance of an Act of the Legislature of this State, entitled “An Act to regulate the Fire Department of the City and County of San Francisco,” approved March, 25, 1857, for the purpose of choosing a Chief and three Assistant Engineers of the department, and that, at such election, the relator was duly elected to the office of Chief Engineer, and was entitled to a certificate from the Board of Delegates of his election to that office. The petition further represents, that it was the duty of the Board of Delegates to declare the result of this election, and to give a certificate of office to the person entitled to the same, but that the Board not only refused to declare the result as required by law, but improperly and without any authority whatever, annulled and set aside the election so far as related to that office, and refused to give a certificate, either to the relator or to any other person. It appears that the Board convened at the proper time, for the purpose of canvassing the returns and declaring the result of the election, and that, before the result was declared, one J. E. Nuttman gave notice of his intention to contest the election of the relator, presenting at the same time, a statement of the grounds relied upon, and claiming that he had received the highest number of legal votes east at such election for said office, and that he, and not the relator, had been elected and was entitled to the certificate. Upon the reception- of this statement, the Board proceeded to investigate the merits of the respective claims of these parties, and failing to arrive at a conclusion in favor of either, terminated the investigation by the adoption of a certain preamble and resolution, the former declaring, in effect, that it appeared from the evidence that no person had been elected to said office, and the latter annulling and setting aside the election. This preamble and resolution stand as the decision and judgment of the Board upon the questions involved. The proceedings before the Board are fully set out in the record, but, in the view we take of the case, a more particular reference to them is unnecessary.

We are asked to review this action of the Board of Delegates; and the first question presented for our consideration is, whether the proceedings of that body are subject to review in any manner by the Courts. If this question be decided in the affirmative, it is admitted that a certiorari is the proper remedy. The Practice Act, (Sec. 456,) provides that this “ writ shall be granted in all cases where an inferior tribunal, board, or officer, exercising judicial functions, has exceeded the jurisdiction of such tribunal, board, or officer, and there is no appeal, nor, in the judgment of the Court, any other plain, speedy, and adequate, remedy.” The negative of this question rests upon the proposition, that the Board of Delegates is not a tribunal exercising judicial functions, within the meaning of the statute. In support of this proposition, it is argued that the Eire Department of San Francisco is a mere voluntary association, indebted for its existence to the free will and patriotic devotion of the people of that city, and independent of legal control in the management of its own affairs, and the regulation of its internal government. This argument is easily answered by a reference to the facts relating to the organization of the department, and its subsequent history. It is not correct that this department is a mere voluntary association, called into being by the free and unaided will of the people, and depending for its existence solely upon the devotion and energy of the persons composing it. It is voluntary to this extent only, that no person is compelled to become a member, and no member is under any legal obligation to continue his membership. Its members may withdraw at pleasure, and by so doing, may, for all practical purposes, break up and destroy its organization. Beyond this, it has none of the attributes of a voluntary association; and to anticipate its practical dissolution by the voluntary withdrawal of its members, would, under any circumstances, be unreasonable. The beneficial character of the institution, and the great public necessity for its existence, are sufficient guarantees that it will never be destroyed by the voluntary action of those most interested in its preservation. The argument based upon the possibility of such an event, is not even plausible. It proves entirely too much. It proves that every public body and tribunal in the State, not supported and maintained by the coercive power of the law, is purely voluntary. It applies with as much force to the different branches of the State Government as to the Fire Department of San Francisco. The coercive principle does not exist in the former any more than it does in the latter. Bo person is compelled by force or coercion of the law to serve in a public office; and if every person should refuse to do so, the public business would cease, and the government would be practically dissolved. Such an event is possible, but does this prove that the institutions of government are merely voluntary ? The fallacy of the argument is too clearly apparent to require further illustration.

The legislation in reference to this subject, and the action of the local government of the city of San Francisco, establish, beyond all question, that this department was organized in pursuance of legislative authority, and is now, and always has been, a branch of the municipal government of that city. The Act of April, 1850, incorporating the city, vested in the Mayor and Common Council the power to provide “for the prevention and ex-tinguishment of fires, and to organize and establish fire companies.” The reincorporating Acts of 1851 and 1855, continued in the city government substantially the same powers. By the Act of 1851, the Common Council was empowered to pass laws “ for the prevention and extinguishment of fires, and for regulating firemen;” and by the Act of 1855, authority was given to the same body “to direct and control the Fire Department, and make all needful rules and regulations for its government, not otherwise provided by law.” The Act of 1856, commonly called the “ Consolidation Act,” by which the previous Acts of incorporation were repealed, and the city and county united under one government, vested in the Board of Supervisors similar powers to those conferred upon the Common Council by the Act of 1855. The Act of 1857, amendatory of the Consolidation Act, provides that the Chief Engineer of the department shall receive for his services a salary as therein specified—under which provision the present Chief Engineer is entitled to a yearly salary of four thousand dollars, payable from the treasury. An ordinance organizing this department was passed in July, 1859, in pursuance of the authority vested in the Mayor and Common Council by the Act of April of that year. This ordinance we have not seen, but it is referred to in a repealing ordinance of 1852, as “an ordinance organizing a Fire Department.” It did not regulate a department already established, but established one which did not previously exist. The ordinance was repealed in November, 1852, and another passed upon the same subject. This latter ordinance contained full and ample provisions for the regulation and government of the department, but reserved to the Common Council a supervisory control over its proceedings.. It provided for the election or appointment of the officers of the department, and defined their powers and duties. Several of these officers were required, before entering upon the discharge of their duties, to take and subscribe an oath of office. It was made the duty of the Chief Engineer to report to the Common Council at stated periods, the condition and necessities of the department, and various other matters connected with the discharge of his duties. The Engineers of the department have always been regarded as officers of the city government. An ordinance was passed November 4, 1852, providing that “ there shall be a Chief Engineer of the Eire Department, and a first, second, and third, Assistant Engineer of the Eire Department, who shall be elected by the members of the said department and further providing that “ the Chief Engineer of the Eire Department shall receive for his services a yearly salary of three thousand dollars, payable in the same manner as that of the other city officers.” It would be useless labor to refer to the subsequent action of the city government in reference to this department. Its policy has always been the same, and in no essential particular has the organization of the department, or its relation to the government of the city, undergone any change. The Act of March, 1857, providing rules and regulations for its government, amounts to little more than a repetition of the provisions of existing ordinances, and does not in any manner affect its connection with the municipal government of the city.

But even if we are mistaken in supposing that this department is the mere creature of the law, and admitting that it is purely a voluntary association, we do not see that the doctrine contended for necessarily follows. We can perceive no rational distinction between creating a body for a public purpose and investing it with judicial powers, and clothing with such powers a body already created and existing independent of legislative action. The only question is, does the body whose acts are to be reviewed, exercise judicial functions under the Constitution and laws of the State ? If so, and there is no appeal, nor, in the opinion of the Court, any other plain, speedy, and adequate, remedy, such acts may be reviewed on certiorari, and all inquiry into the creation and organization of such body is irrelevant and immaterial. It is of no consequence how it was created, or by what means it exists; if it is clothed with judicial powers, it must be regarded as a tribunal exercising judicial functions, within the meaning of the statute.

It is not disputed that the controversy before the Board of Delegates was judicial in its nature; and it is conceded that the powers of the Board were sufficient for the determination of all questions involved in the controversy. As these were judicial questions, we must regard the Board itself as exercising judicial functions, and as exercising such functions in subordination and subjection to the control and supervision of the Courts, in the manner provided by law. It would be a reproach to the jurisprudence of the State, if the arbitrary, wanton, and illegal, exercise of such powers were beyond the remedial interposition of the Courts.

Having disposed of this preliminary question, the next inquiry is, to what extent can this Court go in reviewing the proceedings of the Board of Delegates? Section 462 of the Practice Act provides, that “ the review upon this writ shall not be extended further than to determine whether the inferior tribunal, board, or officer*, has regularly pursued the authority of such tribunal, board, or officer." We have already seen that the writ can be granted only where the jurisdiction of the inferior tribunal has been exceeded; and, taking these two provisions together, it is clear that the Courts are confined to the determination of the question of jurisdiction. Beyond this, they have no right or authority to go; and they have nothing whatever to do with the proceedings before the inferior tribunal, except so far as an exam-. ination of such proceedings is necessary for the determination of this question. Chief Justice Murray suggested, in People ex rel. Church v. Hester, (6 Cal. 679,) that at common law, the province of this writ is more ample than under our statute, as it is not confined to mere questions of jurisdiction. While we fully agree that, under our statute, the writ has no other effect than to raise the mere question of power, a careful examination of the subject has satisfied us that the learned Judge was impressed with a very serious mistake in regard to the functions of the writ at common law. We think it is well settled that a common law certiorari tries nothing but the jurisdiction, and, incidentally, the regularity of the proceedings upon which the jurisdiction depends. It brings up no issue of law or fact not involved in the question of jurisdiction. Under no circumstances, can the review be extended to the merits. Upon every question, except the mere question of power, the action of the inferior tribunal is final and conclusive. This we understand to be the settled doctrine, both in England and in this country. The provisions of our statute are merely in affirmance of the common law. The nature and effect of the writ remain unchanged. Its functions are neither enlarged nor diminished, and the rules and principles which govern its operation are still the same.

But while it is well settled at common law, and must be regarded as equally so under our statute, that the review upon this writ cannot be extended beyond the question of power or jurisdiction, the authorities are not agreed as to what may be considered by the Court of Review for the purpose of determining this question. It is held in many cases that the record, or where, as in this case, there is technically no record, the proceedings and orders in the nature of a record, can alone be regarded; and that it is not the office of this writ to bring up the evidence even upon a disputed jurisdictional fact. On the other hand, the cases are numerous to the effect that the review may be extended to every issue of law and fact involved in the question of jurisdiction, and that not only the record, but the evidence itself, when necessary for the determination of this question, must be returned. The latter is the more reasonable, and, we think, the true rule. The reasons upon which it is founded are well stated by the Court of Appeals of New York, in the case of The People ex rel. Bodine v. Goodwin, (1 Selden, 568.) The case arose under a statute of that State, by which the Commissioners of Highways were empowered, under certain circumstances, to lay out and open roads, but were prohibited from opening a road through any building without the consent of the owner. The question was, whether the Court could, upon a common law certiorari, review the evidence upon an issue in the case, as to whether the consent of the owner had in fact been obtained; and it was held, that as this was a jurisdictional fact, the existence of which was absolutely essential to give any validity to the proceedings of the Commissioners, the evidence in relation to it was properly returned, and was entitled to be considered. “Neither the Commissioners of Highways,” said the Court, “ nor the referees on appeal from their decision, have power to lay out a road, public or private, through any building without the consent of the owner. There was a barn standing on the land laid out for the highway in controversy; and unless the owner’s consent was given that the highway should be so laid out, the referees in laying it out acted without authority, and their proceedings were void for want of jurisdiction. Inferior magistrates, when required by writ of certiorari to return their proceedings, must show affirmatively that they had authority to act; and where, as in the present case, their authority and jurisdiction depend upon a fact to be proved before themselves, and such fact be disputed, the magistrate must certify the proofs given in relation to it, for the purpose of enabling the higher Court to determine whether the fact be established. The decision of the magistrate in relation to all other facts is final and conclusive, and will not be reviewed on a common law certiorari. But the main object of this writ being to confine the action of inferior officers within the limits of their delegated powers, the reviewing Court must necessarily re-examine, if required, the decision of the magistrate on all questions on which his jurisdiction depends, whether of law or of fact. The evidence, therefore, to prove the consent of the owner of the land to the laying out of the road was properly stated in the return, and is properly examinable here.” In view of the great conflict of authority upon this subject, we content ourselves with the expression of our concurrence in the reasoning and conclusions of the Court in that case.

This brings us to the question of the legality of the action of the Board of Delegates in the contest between Nuttman and the relator, and in setting aside and annulling the election of December, 1857. We have seen that this election was held in pursuance of the Act of March, 1857, regulating the Eire Department of San Francisco; and in determining the question before us, it will be necessary to refer to some of the provisions of this act. The first section of the Act provides that the department shall consist of a “ Chief Engineer, three Assistant Engineers, a President, a Secretary, a Treasurer, a Board of Delegates, and. such companies as now compose the same, or as hereafter may be admitted thereto, in'accordance with the provisions of this Act.” The second section, after providing for an election on the first Monday of December, 1857, for a Chief and three Assistant Engineers, proceeds as follows : “ The returns of said election, duly certified, shall be forwarded to the Secretary of the department within five dajm thereafter, and be by him transmitted to the Board of Delegates, who shall convene within ten days thereafter, and declare the result. The person having the highest number of votes for the office of Chief Engineer, shall be declared elected for the term of three years, or until his successor is elected and qualified. - - - Contested elections for Chief and Assistant Engineers shall be decided by a majority of the Board of Delegates; and should a tie vote occur for either of said officers, the Board shall, by a majority of its members, determine between, or the rank of the contesting parties.” The fourth section defines the powers and duties of the Board of Delegates, and among other things provides that the Board shall examine the returns, and declare the result of all Engineers’ elections, and give certificates of office to the persons entitled.

It is contended, that although the Board of Delegates is vested by this Act with authority to hear and determine oases of contested elections arising in the department, it is a tribunal possessing only special and limited powers, and that the grounds and reasons of its action must affirmatively appear in every case, or its proceedings will be absolutely void. It is claimed in this case, that the original contest of Nuttman was wholly insufficient to give the Board jurisdiction, and that, having acquired no jurisdiction at the commencement of the proceedings, its acts throughout were illegal and invalid. It is unnecessary for the determination of this point to advert to the familiar distinction between Courts of general and Courts of limited, jurisdiction. The statute confers simply the power to decide, leaving it to the Board to determine the form and.manner of proceeding. It is true, a mere arbitrary exercise of this power is not contemplated, and would not be valid. A decision without a trial would be illegal and void; but we cannot undertake to say what is or is not sufficient for the Board to proceed upon in the first instance. We must leave that matter where the Legislature loft it—with the Board itself. The jurisdiction must affirmatively appear, but not necessarily, at any particular point of the proceedings. The rule might be different, if the Legislature, in addition to conferring the power, had also provided the mode of proceeding. If this had been done, the power could be exercised only in the prescribed mode.

But, it is entirely immaterial whether this point is well taken or not. There is another objection which is conclusive of the case, and fatal to the validity of these proceedings. Admitting, that the Board of Delegates had full and complete jurisdiction of the controversy before it, its power extended only to the determination of the questions involved in that controversy. The election was contested solely upon the ground of illegal voting; and it is nowhere shown or pretended, that either of the parties was ineligible, or that the election itself was illegally held, or was void for any cause. Under such circumstances, it was the duty of the Board to ascertain which of the parties had received the highest number of legal votes, and declare the result according to the fact. The decision should have been in favor of one or the other of the contestants, and a certificate of office should have been given in accordance with the decision. We do not see in what manner it was ascertained, or by what right or authority it was determined, that neither had been elected •, nor can we discover, from what provision of law was derived the power to annul and set aside the election. It is evident, that one of the parties was elected, and it was the right and duty of the Board to determine which; but the party elected had a vested interest and property in the office, which the Board did not possess the power to defeat or destroy. In determining that neither had been elected, and in annulling and setting aside the election, the Board traveled beyond the issues in the case, and beyond anything which it had the power to determine; and to that extent, its proceedings were without authority, and, therefore, void. We do not decide, that the Board may not, in a proper case, set aside an election. We hold, merely, that this is not such a case; and, in arriving at this conclusion, we in no manner interfere with any right which the Board had to control the case upon the merits. If the final action of the Board, however unjust or erroneous, had been confined to the matters in controversy, we would not and could not interfere. But it was as much an excess of jurisdiction to render a decision outside of the case, as it would have been to decide the case, in the first instance without a trial, and-without investigation.

The judgment of the Court below is reversed, and the cause remanded for further proceedings, in conformity with this opinion.