Los Angeles herald., 1892-04-19
VAN DYKE DENIES THE WRIT.
An Important Decision in a
Pomona Case.
A Nice Question of Municipal Law
Determined Yesterday.
The Matter of . Writ of Pr0hlDition Dy
Copeland as Against the Town OF
Pomona-The Points OF the
Decision.

POmona-The Points OF the
Decision.
Yesterday Judge Van Dyke OF the
superior court denied the application
for q writ of prohibition in the issue OF
J. 7. Copeland vs.. Recorder OF Pomona.
The petitioner was arrested on February
1lth under a warrant issued from the
recorders Office charging petitioner with
violating ordinance 80 of said city. Po-
mona was Incorporated and first munic-
ipal election was held April 2, 1889. The
trustees elected were w. M. Moody, s..
j. Rolph, r. S. Bassett, F. j. Smith,
George Rhorer. Before the election Of
1891 Smith resigned and G. @. johnson
was appointed to fill the unexpired
term. The trustees divided the city
into five wards.
At the election in April, 1891, bel for
the purpose of electing officers OF said
city, the board of trustees declared E.
IL. Elliott as elected to the office Of
member of the board from the Second
ward to succeed r. s. Bassett, and de-
clsred j. A. Gallup as elected member
of the board of trustees from the Fourth
ward to succeed G.. G. Johnson, and fur
ther declared that there was no election
in the First ward of the city, and no
other person was elected member of
the board of trustees of said city; there
upon Gallup and Elliott qualified as
members of the board of trustees, and
@. G. Johnson and r. S. Bassett ceased
to act as members of the board. No
one was elected as member of the board
in place of trustee Moody, who contin-
ued to attend the meetings of the board
and to vote and act as member thereof
up to and including the passage by the
board of ordinance No. 80, and voted
affirmatively for said ordinance together
with S. J. Rolph and George Rohrer,
and no other votes were cast for said
ordinance.
The petitioner bases his claim to the
writ of prohibition upon the proposition
that the Office of w. M. Moody became
vacant, and that he was not trustee at
the time of the passage of the ordinance
in question, and that consequently it
failed to receive majority vote of the
board. Counsel for the petitioner based
their contention that Moody ceased to
be trustee, and that there was a va.
cancy in the Office on the proviso
of section 1852 of the munic-
ipal incorporation act, which
reads as follows: provided, that the
first board of trustees and board of edu-
cation elected under the provisions of
this act shall at their first meeting so
classify themselves by lot as that three
Of THAR hor oho II M o,1k of oAEoo o%
the expiration of two years, and two at
the expiration of four years." Two
years having expired since the election
of Moody, it is claimed that he ceased
to be a trustee. but it is also declared
IN said section, preceding the proviso
just quoted, as follows: members OF
the board OF trustees and of the board
of education shall hold Office for the
period of four years from and after the
Monday next succeeding the date of such
election and until their successors are
elected and qualified" Therefore, the
terms Of the members OF the board of
trustees and of the board of education
elected at the first election
are four and two years respectively, &C.
cording to the classification provided
for. The whole section should be con-
eidered in arriving at proper construc-
ton. 1t is first declared that the mem
bers of the board of trustees and of the
board of education shall hold office for
four years and until their successors
are elected and qualified, and the pro-
viso is simply intended to qualify the
term, so that the members shall not be
elected thereafter at one time. There
is no reason why the members of the
board after the classification should
cease to hold Office at the expiration of
the two and four years respectively
without regard to the election and quail
ification of their successors, while others
should hold until their successors are
elected and qualified. The provision
is not designed to limit the
term in this respect. Ruggles va. Board
of Trustees, SO CAL, 431. The legisla-
ture has been careful to provide against
hiatus or interregnum in this respect.
Every officer must continue to dis
charge the duties of his office, although
his term has expired, until his successor
has qualified" Pol. c., 879. This pro-
vision for continuing in office until the
successor is elected and qualified is de-
signed to prevent any stoppage in the
performance of public duties. 1t has
had frequent applications in this state.
stratton vs.. Oulton, % CAL, As. People
We. Bissell, 40 CAL, 4O7. Myers We. Su-
pervisors, go CAL, 287. Treadwell vs.
Yolo County, 81 CAL, 563-567. People
va. Tyrell, 81 CAL, AIS. This last was a
case of an officer appointed by the gov
ernor, whose term expired at the ad-
journment of the next session of the
legislature and the legislature failed to
make an appointment. The court, in
constituting section 1000 of the political
code, says: 1.-The language of that Sec
tion, but the person so appointed can
only hold the Office until the adjourn
ment of the next session of the legisla-
ture,' simply means, when construed
with section 879, as it must be, that the
term OF said appointive officer shall ex-
pire upon the adjournment of the next
session of the legislature and his sue
cessor may take his place; but if no suc-
cessor has been appointed, then the
very condition of affairs intended to be
provided for by section S79 has
arisen and that section applies. It is
the settled law of this state that the
mere expiration of the term of an in
cumbent of an Office does not create a
vacancy therein such as the governor
alone is authorized to fill by the ap-
pointment of successor" Page 478.
Moody therefore held over as trustee.
no successor having been elected or
qualified to take his place, and there
was not vacancy in such Office OF trus
tee. The objection, therefore, that the
ordinance in question did not receive a
II