This is a proceeding in quo warranto instituted by plaintiff and appellant with the authorization of the Attorney-General of California pursuant to the provisions of section 803 of the Code of Civil Procedure to determine by what right and authority the defendant and respondent held the office of city judge of the city of San Bruno in San Mateo County. The city of San Bruno is a city of the sixth class, organized pursuant to the provisions of sections 850 et seq., of the Municipal Corporations Act (Deering’s General Laws, Act 5233).

The complaint alleged that on May 14,1924, the city council of said city appointed the defendant as city judge of said city, and thereafter he took possession of said office and ever since has been and now is in control of said office; that on May 25, 1937, said city council appointed the defendant as city attorney of said city, and thereafter he took possession of said office and ever since has Icen and now is in control of said office.

The prayer of the complaint was for judgment that said defendant is not entitled to the office of city judge and that he be ousted and excluded therefrom.

To said complaint the defendant interposed a general demurrer which the trial court sustained without leave' to amend, and thereupon entered judgment dismissing said action.

Appellant contends that the positions of city attorney and city judge of a city of the sixth class are incompatible and that one person cannot fully perform the duties of both positions at the same time without giving rise to such incompatibility as must operate to vacate the first position held. Respondent contends that a city attorney of a city of the sixth class is not a public officer, and even if he were such officer, the duties imposed upon him by statute are not such as to conflict with his duties as city judge and that there is no incompatibility between the two offices.

Authority for the appointment of a city attorney of a city of the sixth class is contained in section 852 of the Municipal Corporations Act (Peering’s General Laws, Act 5233), wherein a city council is authorized to appoint “a city attorney . . . and such other subordinate officers or employees as in its judgment may be deemed necessary”. The compensation of such city attorney may be fixed from time to time by the city council by resolution or ordinance and he shall hold office during the pleasure of said city council. Section 879 of said Municipal Corporations Act prescribes the duties to be performed by such city attorney as follows: “It shall be the duty of the city attorney to advise the city authorities and officers in all legal matters pertaining to the business of said city, to frame all ordinances and resolutions required by the city council, and perform such other legal services as said city council may require from time to time ...”

Other statutory provisions confer the following additional duties upon a city attorney of a city of the sixth class: To approve all bonds, notes and warrants which are to secure city deposits (Act 2834a, section 4, Peering’s General Laws) ; to defend all suits for damages brought against any officer of the city on account of injuries to person or property resulting from the negligence and carelessness of such officer or from the dangerous or defective condition of any public streets, highways, buildings, parks, grounds, or works due to such officer’s negligence or carelessness (Act 5150, section 2, Peering’s General Laws) ; to defend the city in any suit for damages brought against the city on account of injuries to person or property alleged to have been received as a result of the dangerous or defective condition of any public streets, highways, buildings, parks, grounds, works or property (Act 5154, section 2, Peering’s General Laws); and to abate public nuisances (section 731 of the Code of Civil Procedure).

While there is no specific provision in the statutes requiring a city attorney to take an oath of office, section 853 of the Municipal Corporations Act provides: " Every officer of such city, before entering upon the duties of his office, shall take and file with the city clerk the oath of office required by the Constitution and the laws of the State.”

In view of the statutory provisions creating the position of city attorney in cities of the sixth class and conferring upon such attorney the duties and responsibilities hereinabove specified, it would seem to be in harmony with the policy of this State as declared in its constitutional and statutory provisions to require that a city attorney of a city of the sixth class should take the oath required by the Constitution and laws of this State in accordance with the above-quoted provision of section 853 of the Municipal Corporations Act.

While it is true that the compensation and term of office of a city attorney of a city of the sixth class is fixed by the city council of such city, it is equally true that the duties of such attorney as prescribed by statute pertain to the public and are continuing and permanent, and we think it is clear that the office of city attorney of a city of the sixth class falls well within the definition of the term “public office” as defined by this court in the leading case of Patton v. Board of Health, 127 Cal. 388 [ 59 Pac. 702 ], wherein this court said:

In the case of Leymel v. Johnson, 105 Cal. App. 694 [ 288 Pac. 858 ], the District Court of Appeal quoted with approval from volume 21, California Jurisprudence, pages 819 and 820, as follows:

We see nothing in the above-quoted excerpts which can be said to be repugnant to a pronouncement that a city attorney of a city of the sixth class is a public officer occupying a public office under the law of this State, and we are of the opinion that he is such public officer invested with all the rights and privileges and subject to all of the limitations and restrictions imposed by the Constitution and laws of this State and considerations of public policy.

Turning then to the question as to whether or not the positions of city judge and city attorney of a city of the sixth class are incompatible and cannot be held by one person at the same time, our attention is directed to section 882 of the Municipal Corporations Act (Deering’s General Laws, Act 5233), which provides in substance that a city court is established in said city, to be held by a city judge, which in cities having a population of less than 30,000 shall have the same jurisdiction as a justice’s court of a Class B in all civil and criminal actions arising within the corporate limits of such city and which might be tried in such a justice’s court, and that such city court may also exercise the jurisdiction of a court of small claims in the same manner as provided by law for the exercise of similar jurisdiction by justices of the peace.

Turning to subdivision 2 of section 112 of the Code of Civil Procedure we find that justices ’ courts of Class B have original jurisdiction in all cases at law in which the demand exclusive of interest or the value of the property in controversy, amounts to $300 or less, except eases at law which involve the title or possession of real estate, or the legality of any tax, impost, assessment, toll or municipal fine.

It is conceded by both parties to this action that there is no statutory inhibition against the holding of both of the offices here in question by one person at the same time and that the impediment to such holding must be predicated upon the common law doctrine of public policy which is well recognized as the foundation for many decisions of the courts of this State. This policy and the rule which developed therefrom was given attention in the case of People v. Garrett, 72 Cal. App. 452 [ 237 Pac. 829 ], where the court said:

Respondent contends that since section 880 of the Municipal Corporations Act provides that it is the duty of the chief of police “to prosecute before the city court, all breaches or violations of or non-compliance with any ordinances which shall come to his knowledge”, there is no requirement that the city attorney should appear before the city court in connection with prosecutions which might arise under any of the city ordinances. We are not impressed with this contention, as we think it places an altogether too narrow construction upon the statutes prescribing the duties of the city attorney. It is our view that this provision does not deprive a city attorney of a city of the sixth class of the right and duty to carry on the legal proceedings pertaining to the prosecution of an action based upon the violation of a city ordinance. The intention of the legislature in the enactment of section 880 of the Municipal Corporations Act was obviously to bestow upon the chief of police of such city the duty to institute prosecutions for breaches or violations of or non-compliance with city ordinances which shall come to his knowledge, but in the event such prosecutions result in the trial of cases, the duty should devolve upon the city attorney to conduct such trials as the officer of the city qualified for the performance of such duties.

In the various statutes to which we have referred herein as specifying the duties which a city attorney of cities of the sixth class is required to perform, it is obvious that he may be required from time to time to appear before the city judge and prosecute or defend actions to which the city is a party. Many cities of the sixth class now own their own utilities such as water and electricity, and quite often it is necessary for such city to institute proceedings for the collection of claims for water and electricity furnished their patrons. Such actions could properly be brought in the city court, and the city attorney would, of course, represent the city. It is obvious that he could not do so if he were also city judge. As was declared by the Supreme Court of Maine in the case of Howard v. Harrington, 114 Me. 443 [ 96 Atl. 769 , L. R. A. 1917A, 211] : “He cannot be both prosecutor and judge. The duties are repugnant. He can only perform the duties of one office by neglecting to perform the duties of the other. It is not for him to say in a particular instance which he will perform and which he will not. The public has a right to know with certainty. Stubbs v. Lee, supra [ 64 Me. 195 ( 18 Am. Rep. 251 ).] Thence [sic.] it is that two such offices must be held to be incompatible. ’ ’

The two offices in question being incompatible, it follows that when the respondent accepted the office of city attorney, said acceptance had the effect of vacating or terminating his right to hold the office of city judge. As was said in People v. Garrett, supra: “The rule is settled with unanimity that where an individual is an incumbent of a public office and, during such incumbency, is appointed or elected to another public office and enters upon the duties of the latter, the first office becomes at once vacant if the two are incompatible (Mechem on Public Officers, see. 419; 22 R. C. L., sec. 63) ... ”

McQuillin on Municipal Corporations, second edition, volume 2, section 469, thus states the rule: “The common law rule is that the acceptance by a public officer of another office which is incompatible with the first thereby vacates the first office; that is, the mere acceptance of the second incompatible office per se terminates the first office as effectively as a resignation. ’ ’

It appearing from what we have said in the foregoing opinion that respondent was at the time of the commencement of this action unlawfully holding the office of city judge of the city of San Bruno, the present proceeding in quo warranto was the proper method of challenging his right thereto, and the complaint on behalf of appellant alleged sufficient facts to constitute a cause of action, and defendant’s demurrer thereto should have been overruled.

The judgment is reversed with directions to the trial court to overrule the demurrer and proceed with the disposition of the cause in accordance with the views herein expressed.

Shenk, J., Curtis, J., Edmonds, J., and Gibson, C. J., concurred.