Braslan

Petition for writ of certiorari. The attorney general commenced an action against the Hnion Savings Bank of San Jose and its seven directors, in_ pursuance of the provisions of section 11 of the amended bank commissioners’ *124 act (Stats. 1895, p. 175), to enjoin them from the transaction of any further business and to compel a liquidation of thé affairs- of the bank. Subsequent to the commencement of the action, and to the appearance of the original defendants therein, several of the directors ‘ resigned, arid the petitioner claims to have been elected in place of one of them; but it is not shown that he was ever substituted as a defendant, or that he entered an appearance or gave any notice to the court or to any of the parties of his election as a director.

This bqing the situation of affairs, the attorney general, by leave of the court, filed and served upon the defendants who had appeared a supplemental complaint, alleging that all the directors of the corporation had resigned and that there were no directors, and praying the appointment of seven directors by the court. To this supplemental complaint an answer was filed containing no direct denials of its allegations, but…

I concur in the judgment denying the writ and dismissing the proceeding, and in the opinion of the chief justice. Furthermore, I think that the petitioner is not in a position to invoke the writ of certiorari. He was not a party to the proceeding in the court below, and did not attempt to make himself a party thereto hy intervention or otherwise; and he is not in the exceptional position where, although he was not a party to the record, he might resort to certiorari for the reason that he has substantial interests involved. The only interest which he shows is an asserted claim to an office, and certiorari is not the proper remedy for trying title to an office. Moreover, although this case is before us upon notice to show cause why a writ of certiorari should not issue, yet at the hearing the record was produced and it was agreed by the *127 parties that the matter should be determined as though a writ had been issued and the record of the lower court was here; and, therefore, even if the petitioner had the right to invoke the writ, the record shows no want of jurisdiction whatever.

Moreover, as at present advised, my opinion is that from the time the board of bank commissioners…

I concur in the judgment. This is a proceeding to review the action of the superior court of the county of Santa Clara, Lorigan, Judge, in appointing seven directors for the Union Savings Bank of San Jose, an insolvent institution. Conceding the action of which complaint is made involved the exercise of judicial functions, and that, therefore, the legal remedy invoked is the proper one, still the showing made demands a denial of the relief sought.

Upon a writ of review the record is placed before this court, and the presence or absence of power in the lower court to make the order sought to be reviewed must appear from the face of that record. In this proceeding it appears that the bank corporation had no directors. Such is the positive allegation of the supplemental bill. There is no denial of this allegation, and the fact stands admitted. Under such circumstances, the court not only had the power to appoint seven directors, but it was its duty to exercise that power and make the appointment.

Petitioner insists that he was a .director of the bank corporation at the time this order of appointment was made, and that he had no notice of the proceeding, although a party directly…