I concur in the judgment. So far as this conclusion involves the holding that mandamus will lie to compel the making of an appointment to office in a case where the appointing power has already purported to act and his appointee is in fact occupying the office, on the theory that such appointment was illegal, the question should be regarded as settled for the purposes of this case by the ruling heretofore made in overruling the demurrer to plaintiff's petition. (Independence League v. Taylor, 154 Cal. 179, [97 P. 303].) It was then held that mandamus would lie in such a case to compel the making of a legal appointment. The facts alleged in the petition showed a clear legal right on the part of plaintiff to have the two election commissioners then to be appointed selected by the mayor from members of the Independence League party, for the reason that they clearly and indisputably showed that such Independence League party had at the last preceding general election, the general election of 1906, cast the second highest vote for governor. *Page 301
While the answer of the mayor since filed raises an issue of fact as to this, I think that the official records of the secretary of state relative to the general election in question, practically demonstrate that the Independence League cast the second highest vote for governor in the city and county of San Francisco at that election. The records of that office necessarily showed the nominations of each party for the various state officers. Governor Gillett was the nominee of the Republican party, Mr. Langdon was the Independence League nominee, and Mr. Bell was the nominee of both the Democratic and Union Labor parties. Governor Gillett received in San Francisco 12,903 votes, Mr. Bell 11,650 votes, and Mr. Langdon 10,523 votes. The records fail to show, as we have seen in the opinion of the chief justice, how many votes Mr. Bell received by reason of his candidacy on the Democratic ticket, and how many by reason of his candidacy on the Union Labor ticket. It is shown, however, in that opinion, that in the one case in which the Union Labor party had a candidate for a general state office, — viz., the office of treasurer, that candidate, a Mr. Haskell, received 5,582 votes, and that the Democratic candidate for the same office received more than 5,000 votes less than Mr. Bell. The record showed that the Independence League nominee for the same office received 8,944 votes. I am by no means satisfied that the vote on this office alone would be sufficient to clearly show the relative vote of the various parties on the office of governor. But taken in connection with the vote on the other general state offices, except the two justices of the supreme court for a long term, which affords no information, the showing is too clear to admit of doubt. For the office of justice of the supreme court for the unexpired term, there was no Union Labor nominee, and no candidate had more than one nomination. Justice Sloss, Republican, received 15,600 votes; Mr. Mills, Independence League, received 8,728 votes, and Mr. Craig, Democrat, received 5,859 votes. For all the other offices, at least one of the candidates had two or more nominations. For the office of secretary of state, surveyor general, and state printer, the Republican nominees had also the nomination of the Union Labor party, receiving respectively 20,714, 20,118, and 20,590 votes; the Democratic candidates for the same offices receiving respectively 5,808, 6,032, and *Page 302 5,842 votes; and the Independence League nominees receiving respectively 8,700, 9,012, and 8,834 votes. For the offices of lieutenant-governor, attorney-general, and clerk of the supreme court, the Democratic nominees had also the nomination of the Union Labor party, receiving respectively 11,593, 11,135, and 11,349 votes; the Republican nominees for the same offices receiving respectively 14,050, 15,166, and 14,846 votes; and the Independence League nominees receiving respectively 9,473, 8,861, and 9,004 votes. For state controller, the Republican nominee had also the nominations of the Union Labor party and the Independence League, and received 29,262 votes, as against 5,957 votes received by the Democratic nominee. For the office of superintendent of schools, the Republican nominee had also the Independence League nomination and received 23,714 votes, as against 11,420 votes received by the candidate who had both Democratic and Union Labor nominations. It thus appears that in each of the five cases where the Democratic party had a separate candidate, its vote was between 5,800 and 6,032; that in each of the eight cases where the Independence League had a separate candidate, its vote was between 8,700 and 10,523; that in each of the five cases where the Democratic candidate had also the Union Labor nomination, the vote for such candidate was increased by between 5,000 and 6,000 votes; and that in each case where the Republican candidate had also such Union Labor nomination, substantially the same result followed. These figures demonstrate the relative strength of the various parties in the city and county of San Francisco at this election, and to my mind clearly establish to an extent that leaves the matter beyond the range of dispute, the fact that the Democratic party did not cast more than 6,500 votes of the votes received by Mr. Bell for governor, and, therefore, that the Independence League did cast the second highest vote for governor.
The language of the charter, as quoted in the former opinion, shows that the ultimate purpose to be accomplished in regard to the selection of election commissioners from different parties is that there shall be "equal representation at all times of the two political parties casting the highest vote at the general election last preceding the appointment in question." The preceding provision, that the appointment must *Page 303 be made with reference to the vote cast for governor, is merely the means provided by the section for the determination of the real question, Which of the two political parties has the greatest number of members? It was necessary for the mayor to ascertain which party was entitled to the appointment of election commissioners by reason of its being the party casting the second highest vote for governor. Cases can be imagined in which this question of fact would be very difficult of solution. The vote might be of such a nature, especially in the case of a nearly equal vote, as to leave it extremely uncertain which party did in fact cast the second highest vote for governor, and in such a case it may be that relief by mandamus would have to be denied on the ground that the petitioner had not clearly and indisputably shown his right to the performance of the act sought. In this case, however, as we have shown, no such difficulty exists. The fact from which the mayor was required to act by appointing members of the Independence League was easily and satisfactorily ascertainable from a mere inspection of the official records contained in the office of the secretary of state.
Shaw, J., and Sloss, J., concurred.