The appellant asks a rehearing of this case upon the ground that the decision, and some remarks in the opinion, conflict with the decision and opinion in Bannerman v. Boyle, ante, p. 197, [116 P. 732].
There is nothing inconsistent in the two decisions. They determine different questions, upon different facts. In this case the title to the office is not, and could not be, in issue. The decision, in brief, is that if one is a de facto officer, that is, in actual, peaceable possession of the office, claiming the right to hold it and regularly performing its duties, his title cannot be assailed by a suit in equity to enjoin him from doing so, nor will an injunction issue upon a suit by the true holder of the title to an office to restrain the usurper and others from removing the true holder, where it appears that the true holder was ousted and the usurper was in peaceable and undisturbed possession at the time suit is begun and for the four days next preceding. The decision in the Bannerman case, upon the question on which it is supposed to conflict, was that, under the conditions there existing, a de jure officer who has been unlawfully ousted may compel payment of his salary by a suit inmandamus against the auditor, that in such mandamus suit the title of the plaintiff to the office may be put in issue and tried, and that, under the San Francisco charter, a member of the board of education cannot be removed by the mayor except for good cause and after he has been given a hearing as to the cause, or an opportunity to be heard thereon. The usurper was not a party in the Bannerman case. Neither the auditor nor any authorized representative of the city or state is a party to the Barendt suit. The respective points decided in the two cases have no bearing on each other.
At the time these things took place a removal, without hearing, of a San Francisco officer, was generally believed to be lawful, under the supposed application of the decision of In re Carter,141 Cal. 316, [74 P. 997], a case under the San Diego charter, to the provisions of the San Francisco charter. This indicates that Barendt's removal was not made in bad faith by the mayor and that the persons appointed by him to fill the supposed vacancies believed they had the right of possession. The opposite inference would be drawn since the decision in the Bannermann case that such removal cannot *Page 691 be made without a previous hearing. In view of the provisions of sections 75 and 76 of the Penal Code, making it a misdemeanor to willfully and knowingly intrude into an office to which the intruder has not been elected or lawfully appointed, and a felony for one to withhold from his successor an office after his term has expired, or to willfully and unlawfully withhold from any person entitled thereto any property, records, or papers belonging to the office, it is not likely that other attempts of this kind will occur in the future.
In explanation of the language of the opinion in this case it is to be remarked that this case was first submitted and the opinion herein was written before the Bannerman case was decided, otherwise some of the statements in the opinion might perhaps have been omitted as unnecessary to the discussion. Counsel misunderstand the effect of the remark in the opinion that "the mayor seems to have followed the provisions of the charter with respect to notifying the board of supervisors of the cause of removal of an officer, and his statement of such cause seems to have been entered of record in the proceedings of the board in accordance with the charter." These things were done regularly as the charter prescribes, but in the connection in which this passage occurs it does not mean that the removal was for that reason valid without any previous hearing as to the cause. These facts were stated solely as foundation for the argument that these records, coupled with a certificate of appointment by the mayor, regular on its face, gave defendant Sharp color of title to the office.
The decision does not leave the people or the ousted officer without civil remedies. Such officer may obtain his salary, as stated, or he may apply for leave to sue in quo warranto, which we must assume would be granted in all proper cases, thus giving a remedy for both the officer and the people. The people would also be entitled to protection by the auditor or treasurer withholding the salary of the office from the usurper, in which event the usurpation, if it should occur, would probably soon come to an end.
The petition for rehearing is denied.
Lorigan, J., Melvin, J., and Henshaw, J., concurred. *Page 692