Black v. Board of Police Commissioners

Plaintiff brought a proceeding against the board of police and fire commissioners of the city of San Jose for a writ of mandate to compel said board to audit and allow his claim, in the sum of $724.50, as captain of police of said city, from the twenty-third day of July, 1908, to the 1st of February, 1909. The trial court gave judgment for plaintiff against said board as prayed for, and denied the motion of said board for a new trial. The board in due time appealed both from the judgment and the order. *Page 313 Plaintiff was appointed a member of the police force of said city in the year 1904, and in December, 1906, he was appointed a captain of police of said city. On July 2, 1908, certain charges of violating certain provisions of the charter of said city, made by the chief of police of said city, against plaintiff were filed with the said board (appellant). The board thereupon, on said day, made an order suspending plaintiff from his position, and appointed one Elton R. Bailey thereto, who at once entered into the occupation of the office, and has ever since occupied said office and discharged the duties thereof, and claimed and been paid by the city of San Jose the salary…

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 of Bannerman 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…