______________________________________ 

______________________________________________________________________________ 

OFFICE OF THE ATTORNEY GENERAL
 State of California
 

DANIEL E. LUNGREN
 Attorney General
 

OPINION : 

: No. 90-925 

of : 

: February 26, 1991

DANIEL E. LUNGREN : 

Attorney General : 

: 

ANTHONY S. DaVIGO : 

Deputy Attorney General : 

: 

GLENN MONDO ("relator") has requested this office to grant leave to sue

RICHARDS L. NORTON ("defendant") in quo warranto pursuant to section 803 of the California

Code of Civil Procedure. Relator contends that defendant is unlawfully occupying a public office, 

to wit: member of the city council, City of Santa Ana. 

CONCLUSION 

It is concluded that leave to sue should be DENIED. 

CRITERIA FOR QUO WARRANTO 

In deciding whether to grant leave to sue in the name of the people of the State of

California, we consider the following fundamental precepts which provide the basis for this analysis:

leave will be granted where there is a substantial question of law or fact which requires judicial

resolution, and where the action in quo warranto would serve the overall public interest of the

people of this state. (72 Ops.Cal.Atty.Gen. 15, 19 (1989).) 

MATERIAL FACTS 

In April of 1989, defendant was elected, qualified, and assumed office as a member

of the city council of the City of Santa Ana. On November 6, 1990, defendant was reelected, and 

on November 26, qualified and assumed said office for a full term. 

Relator alleges that defendant used his status as a city council member to obtain a

discount for transportation by a public carrier, in that the airline tickets which he had previously

purchased for himself and his spouse were, upon identifying himself as a city council member, and

based upon such official capacity, upgraded from coach to first class without additional payment by

defendant. 

Defendant alleges that he and his wife were, on July 19, 1990, leaving on their

honeymoon to the Virgin Islands. When the ticket agent discovered the purpose of the trip, she 

1. 90-925
 
 

 

offered in accordance with standard company policy, and he accepted, the upgrade from coach to

first class tickets without additional cost. During his conversation with the ticket agent, she inquired

about his badge, and he identified himself as a city council member; however, this fact had no

bearing upon the upgrade from coach to first class tickets. 

ISSUES OF FACT OR LAW 

1. Did defendant accept the free upgrade from coach to first class tickets as a

member of the city council or by virtue of the public carrier's policy regarding persons on their

honeymoon? 

2. Does article XII, section 7, of the California Constitution apply without regard

to a public officer's membership in some other relevant class? 

ANALYSIS 

Article XII, section 7, of the California Constitution provides as follows: 

"A transportation company may not grant free passes or discounts to anyone

holding an office in this state; and the acceptance of a pass or discount by a public

officer . . . shall work a forfeiture of that office. . . ." 

The following factual premises are not controverted: 

1. Defendant is a city council member.1 

2. Defendant purchased tickets from a common air carrier2 for his honeymoon 

voyage. 

3. The common carrier regularly upgrades to first class without additional charge

persons who are on their honeymoon voyage. 

4. The common carrier offered and defendant accepted an upgrade to first class 

without charge. 

There is no evidence or allegation that the common carrier has regularly or in any

other instance offered a free upgrade to any passenger because of his status as a public officer.

Relator's allegation that the offer to and acceptance by defendant of an upgrade was based on his

status as a city council member, is fundamentally uncorroborated by direct evidence. While we are 

acutely aware of the constitutional prohibition and the public policy which it serves, we simply do

not find, under the recitations presented, the existence of a substantial issue of fact concerning the

basis for the upgrade. 

A legal issue does arise, however as to whether the constitutional prohibition applies

without regard to a public officer's membership in a class of persons other than public officers (such

as all those traveling on their honeymoon) who are granted free or discounted passes by a public 

1

A member of a city council holds a public office in this state. (73 Ops.Cal.Atty.Gen. 354, 356 (1990).) 

2

An airline is a "transportation company" within the meaning of California Constitution, article XII, section 7. (67

Ops.Cal.Atty.Gen. 81, 82 (1984).) 

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carrier. In 67 Ops.Cal.Atty.Gen. 81 (1984), we considered whether a transportation pass may be

provided to a public officer as a member of a larger group unrelated to the functions of his office.

Specifically, it was concluded that the Constitution does not prohibit a member of the California

Legislature who is a spouse of a flight attendant from accepting a free or discounted air travel pass

when such passes are offered on the same conditions to spouses of all flight attendants. We stated 

at pages 83-84: 

"It is unclear from a literary examination of article XII, section 7, whether it

applies to a public officer only in such specific capacity, or extends to such officer

without regard to his membership in some external class or universe. . . . In arriving

at the meaning of constitutional language, consideration must be given to the words

employed, giving to every word, clause and sentence their ordinary significance. If 

doubt or ambiguity remains, then well recognized extrinsic aids may be introduced.

Among these is a consideration of the objective sought to be accomplished. (State 

Board of Education v. Levit (1959) 52 Cal.2d 441, 462; Mosk v. Superior Court

(1979) 25 Cal.3d 474, 495.) 

"Article XII, section 7 (formerly § 19), was adopted to control the perceived

corruptive influences of the railroads on the legislative process. (See Debates and

Proceedings of the Constitutional Convention, p. 379; John K. McNulty,

`Background Study - California Constitution Article XII, Corporations and Public

Utilities' (1966) p. 100.) Would the acceptance of a free or discounted transportation

pass by a member of the Legislature as a spouse of a flight attendant tend to corrupt

the legislative process? It is apparent that the perceived corruptive influence

consisted of the granting of special benefits in exchange for legislative favor. Thus, 

explicitly or implicitly, legislation favorable to the railroads was the quid pro quo. From this perspective, the pertinent question is not whether the pass be gratuitous

vis-a-vis the company employee but whether it be granted subject to some express

or implied condition of legislative or other official approbation. 

"If, as we assume in the absence of contrary advisement or indication, the 

sole condition for the receipt of the propounded benefit is the spousal relationship,

then the element of corruptive influence appears to be lacking, and the application

of the constitutional prohibition would fail to serve its intended objective. 

"Accordingly, it is concluded that the acceptance by a member of the

California Legislature who is the spouse of a flight attendant of a free or discounted

air travel pass is not prohibited by article XII, section 7, of the California

Constitution when such passes are offered on the same conditions to spouses of all

flight attendants. . . ." 

Similarly, it is concluded that the Constitution does not prohibit a person on his honeymoon, whether

or not such person holds a public office, from accepting a free or discounted air travel pass when

such passes are offered on the same conditions to all such persons.3 

3

We are neither asked nor do we now consider the propriety of such a discount (see Pub. Util. Code, §§ 453, 523; Civ.

Code, § 2170), nor whether such provisions are superseded by federal law regulating interstate and foreign travel by air

carriers (49 U.S.C. §§ 1373, subd. (b)(1), and 1305, subd. (a)(1); and cf. 67 Ops.Cal.Atty.Gen., supra, 82, n. 3). We did 

not intend to suggest in the latter opinion (Id. at n. 3) that the forfeiture of public office by a person accepting such a 

discount, pursuant to the California Constitution, is superseded by such federal statutes. (49 U.S.C. § 1506; Bradfield 

v. Trans World Airlines, Inc. (1979) 88 Cal.App.3d 681, 687; Information Control Corp. v. United Airlines (1977) 73

Cal.App.3d 630, 640; and see unpub. opns. I.L. 64-111 (1964), I.L. 71-159 (1971), and I.L. 75-294 (1975).) 

3. 90-925
 
 

PUBLIC INTEREST
 

It is not the province of the Attorney General to determine which party should or is

likely to prevail in a quo warranto proceeding. (72 Ops.Cal.Atty.Gen. 15, 19 (1989).) However, 

the mere existence of a justiciable issue does not establish that the public interest requires a judicial

resolution of the dispute or that leave automatically should be granted for the proposed relator to sue

in quo warranto. (67 Ops.Cal.Atty.Gen. 151, 154 (1989).) As stated in City of Campbell v. Mosk 

(1961) 197 Cal.App.2d 640, 650: 

"The exercise of the discretion of the Attorney General in the grant of such

approval to sue calls for care and delicacy. Certainly the private party's right to it

cannot be absolute; the public interest prevails." 

We believe it would not be in the public interest to burden the city or the courts with

this dispute, and that a contrary disposition would discourage participation by citizens in public

office. (72 Ops.Cal.Atty.Gen., supra, at 24.) Further, we are mindful of the general principle that

ambiguities concerning the right to hold public office should be resolved in favor of eligibility. The 

court stated in Helena Rubenstein Internat. v. Younger (1977) 71 Cal.App.3d 406, 418: 

"We consider disqualification from public office a significant civil disability.

In California, the right to hold public office has long been recognized as a valuable

right of citizenship. In 1869, in People v. Washington, 36 Cal. 658, 662, our Supreme

Court declared that `[t[he elective franchise and the right to hold public offices

constitute the principle political rights of citizens of the several States.' In Carter v. 

Com. on Qualifications etc., 14 Cal.2d 179, 182, the court pointed out: `[T]he right

to hold public office, either by election or appointment, is one of the valuable rights

of citizenship . . . The exercise of this right should not be declared prohibited or

curtailed except by plain provisions of law. Ambiguities are to be resolved in favor

of eligibility to office. . . .' (Italics added.) More recently, the high court, citing 

Carter, has termed the right to hold public office a `fundamental right.' (Zeilenga v. 

Nelson, 4 Cal.3d 716, 720; Fort v. Civil Service Commission, 61 Cal.2d 331, 335.)

Thus, any ambiguity in a constitutional provision calling for forfeiture of an existing

office and disqualification from holding public office should be resolved in favor of

continued eligibility. . . ." 

For the foregoing reasons, leave to sue is denied.4 

* * * * * 

4

We note but do not consider, in view of the result reached here, the effect of defendant's reelection to a succeeding

full term. 

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