Kelly v. Edwards

Citations

• 69 Cal. 460
• 11 P. 1
• 1886 Cal. LEXIS 670

Syllabus

<p>Board or Fire Commissioners—San Francisco — Vacancy in Office— Members or Board — Mandamus.—The application was for a writ of mandate to compel the respondents, as members of the board of fire commissioners of the city and county rf San Francisco, to admit the petitioners to the use and enjoyment of their respective rights of office as alleged members of the board. As to the petitioner Siebe, the petition alleged that he had been a member of the board, and that his term of office expired on the 5th of December, 1885, and that in anticipation of such expiration he had been elected by the board of supervisors of the city and county on the 9th of November, 1885, to fill the vacancy so about to occur. It did not appear from the petition that Siebe was not continuing to serve, or that the respondents had prevented him from acting as a member of the board. As to the petitioner Kelly, the petition alleged that he had at the same time been elected by the board of supervisors to fill the vacancy about to be caused by the expiration of the term of one Mason, a member of the board. The petition failed to show that Mason was not holding over, or that there was not an incumbent of the seat claimed by Kelly. Held, that the petition was Insufficient.</p> <p>Id. —Title to Office Cannot be Tried by Mandamus. — A writ of mandate will not lie to compel the board to admit a person claiming to be a member thereof in the place of an incumbent asserting a right to the place, and actually enjoying its benefits, and discharging its duties, with the assent of the other members of the board.</p> <p>Id.—Incumbent must be Party to Proceeding.—Conceding that the right to an office may be tried by mandamus, the writ will not issue unless the person, if any, in possession of the office, is made a party to the proceeding.</p>