Hallinan

Plaintiff appeals from judgment in favor of defendants after order sustaining demurrer without leave to amend.

Question Presented

Is the action one to try title to public office which can only be done by quo warranto ?

Record

Plaintiff brought a taxpayer’s suit against Thomas J. Mellon, a member of the Police Commission of the City and .County of San Francisco, and his surety, St. Paul Fire and Marine Insurance Company, for an injunction to restrain alleged wrongful payment of moneys to defendant Mellon and for the return of moneys allegedly wrongfully procured. The complaint alleged Mellon’s appointment on January 10, 1956, as a member of the police commission and that he has continued to act as such member. Then follow appropriate allegations concerning the execution of a bond by defendant St. Paul to ensure the faithful performance by Mellon of the duties of his office. The complaint sets forth the following excerpt from the San Francisco Charter: “No person shall be appointed as a member of any Board or Commission unless he shall have been a resident of the City and County for a period of at least five years and an elector thereof for at least one year immediately prior to…