(Cal.)... 807 728 Stout v. Coates (Kan.). 151 355 Schlessinger v. Mallard (Cal.). 651 Street, Ferry v. (Utah). 571 389 57 267 58 652 619 Sullivan, Rochester v. (Ariz.) 607 699 Shed v. Blakely (Mont.).. 639 253 Sherman v. Finch (Cal.).. 847 Shipman, Roman Cath. Archb. v. (Cal.).. Swift, Frevert v. (Nev.).... 273 343 Shobert, Ex parte (Cal.). 786 Spencer, Mason v. (Kan.). State v. County of Hamilton (Kan.) 902 State v. Dunbar (Or.)...... State v. Longton (Kan.). State v. Smith (Kan.). State v. Wahl (Kan.). State, Green v. (Cal.). 908 911 Uncas Min. Co., Holm v. (Cal.)..... 666 602 Uncas Min. Co., Palmer v. (Cal.).... 666 740 Thompson v. White (Cal.).. 564 789 648 852 484 Titus, Clark v. (Ariz.). 312 77 Todd v. De La Mott (Colo.). 36 Todhunter v. State (Cal.).. 910 Toole, Western Min. Co. v. (Ariz.).. 119 161 Trihay v. Brooklyn Lead Min. Co. 90 604 (Utah).. 612 298 Tripp v. Santa Rosa St. R. Co. (Cal.) 219 441 389 753 Williams v. Mecartney (Cal.)....... 186 337 Williams v. Southern Pac. R. Co. (Cal.).. Wade, French v. (Kan.). Watrous v. Cunningham (Cal.).. Weaver, St. Louis & S. F. Ry. Co. v. (Kan.).. Webb, People v. (Cal.). Weiss v. Oregon Iron & Steel Co. (Or.)... Welden, Hodson v. (Kan.). West, Wheeler v. (Cal.). 849 138 Williams, Pico v. (Cal.). 911 Wills v. Kong (Cal.).. 842 Wilson v. Prouty (Cal.): . 122 Wilson, Kelly v. (Cal.). 312 Wilson, Lee v. (Colo.).. 350 Wilson, Sujette v. (Or.). 808 Wine, Mullen v. (Colo.). 600 780 608 244 77 267 54 811 Wingerter v. Wingerter (Cal.). 88 Wing Ho v. Baldwin (Cal.). 853 565 408 509 Winter v. Superior Court (Cal.).... 633 Winter, Ex parte (Cal.).... 630 Woffenden v. Charouleau (Ariz.)... 61 Woffenden v. Charouleau (Ariz.). 255 Wong v. City of Astoria (Or.)... 164 Wong Fook, Guille v. (Or.). 50 Woodruff, Plummer v. (Cal.)... 871 Wright v. Ascheim (Utah)... Wylie, Challiss v. (Kan.).. 355 Western Min. Co. v. Toole (Ariz.).. 119 97 Wheeler v. Northern Colo. Irrigation Co. (Colo ) Yearian v. Speirs (Utah). Yearian v. Spiers (Utah). 103 Yore, Ely v. (Cal.). t .... ... 117 295 277 871 580 438 618 509 868 THE Pacific Reporter. VOLUME XI. (69 Cal. 460) KELLY and another v. EDWARDS and others. (No. 11,370.) 1. OFFICE AND OFFICERS-MANDAMUS TO TRY TITLE TO OFFICE. 2. SAME-MANDAMUS TO ADMIT PETITIONER TO OFFICE-REQUISITES OF PETITION. If the right to office can be tried by mandamus, still a petition for a writ of mandate to compel a board of officers to admit the petitioner to a seat among its body, which he claims he is entitled to by reason of legal appointment, is defective if it does not appear therefrom that he has been refused admission to such office, or that he has not continuously been enjoying all the rights thereof, or if it fails to show that there is another person in possession of the office who asserts a right thereto adverse to petitioner. THORNTON, J., dissents. In bank. Application for writ of mandate to compel the board of fire commissioners to admit the petitioners to seats in the board, which seats the board claimed were being occupied by Siebe, one of petitioners, and one Mason, as members of such board, holding over until their successors are elected and qualified. Respondents demurred to the petition on the grounds stated in the opinion. John L. Love and J. N. E. Wilson, for petitioners. P. G. Galpin, for respondents. MCKINSTRY, J. The allegation of the petition is, in effect, that the respondents refuse to recognize the validity of the appointments of November 9, 1885, or to permit the petitioners to sit and act as members of the board of fire commissioners, under and by virtue of their November appointments, respectively. The petition shows that Siebe was a commissioner under an appointment for a term to expire December 5, 1885, and until his successor should qualify. There is no express averment in the petition, and no averment from which it is necessarily inferable, that Siebe has not continued to serve as fire commissioner, or that the respondents have prevented him from acting as a member of the board, or from discharging any of the duties of commissioner, or that they have interfered with any right or privilege attached to or connected with his office as commissioner. The demand made on respondents, as alleged in the complaint, was that the petitioners "be allowed to take their seats as members of said board, by reason of said election and appointment" in November. The refusal of the respondents to comply v.11p.no.1-1 with the demand should be construed to be as broad and no broader than the demand. And such is the effect of the averments, as understood by counsel for petitioners. His brief contains the statement: "He [Siebe] claims by virtue of his appointment for a term of four years. Respondents recognize him only as a holder-over;' that is, as holding until the appointment and qualification of his successor." The validity of the November appointments is a matter of law, as to which the opinion of respondents could be of no consequence, except as a wrong opinion might be an excuse for depriving Siebe of some actual right, or be a basis for a refusal to perform a duty imposed by law upon themselves. Mandamus can be resorted to to compel a duty specially enjoined by law. But for aught that appears Siebe is now enjoying every right and privilege connected with the office of fire commissioner. What duty have the respondents to perform in the premises? It is no part of their duty to declare their judgment that the November appointments were regular and legal. And the opinion of this court on that subject cannot be obtained under a pretext of a proceeding to compel the respondents to do that which the law does not require them to do. If Siebe is enjoying all the rights to which a member of the board is entitled, how can it be said that the board has precluded him from the enjoyment of the office? Certainly the opinion of a majority of the board, that he is enjoying his rights as a holder-over, and not by virtue of an appointment for a new term, is unimportant. It is said Siebe cannot sue himself as an intruder. That may be true, but until he is disturbed in the enjoyment of some substantial right there is no necessity for any litigation. His right to hold the office for any definite term cannot be determined or strengthened by any action of the other members of the board. The petition fails to show that Mason is not holding over, or that there is not now an incumbent of the seat claimed by the petitioner Kelly. If there be such incumbent claiming a right to the place, and actually enjoying its benefits, and discharging its duties, with the assent of the other members of the board, we cannot here adjudge that petitioner Kelly has a better title to the office than the occupant-First, because the incumbent is not a party to this action; second, because mandamus is not the appropriate mode of trying the title to an office. It will not be contended that the respondents or the board should be compelled to admit to the board a sixth fire commissioner. If there be an incumbent of the seat demanded by Kelly, it must follow that a judgment would be to command that the board be composed of six members, or to command, not only the admission of Kelly, but the expulsion of another person. The petition is defective, in that it does not appear therefrom that Siebe has been refused admission to the board, or that he has not been continuously enjoying all the rights of office as a member thereof. It is defective in not showing that there is no person in possession of the office claimed by Kelly, who asserts a right thereto adverse to Kelly. This last is true even if the right to the office can be tried by mandamus, because the person, if any, in possession has not been made a party to this proceeding. If there be such person, and the petitioner shall aver him to be a usurper, the title to the office can be tried in the manner provided by the Code of Civil Procedure, SS 803-810. There can be no great hardship in requiring the petitioners here to state in their complaint, fully and distinctly, the facts which show them to be entitled to a writ of mandate. Since the submission of this cause our attention has been called to Lewis v. Whittle, 77 Va. 415. In that case the mandamus was refused. It was held, however, that wherever there is a right to exercise an office, and one is dispossessed of such right, and has no other adequate specific remedy, mandamus should be allowed; and that, inasmuch as quo warranto, while it might remove the incumbent, would not put the petitioner in possession, quo warranto is not an adequate remedy. But by our Code, in an action for usurpation of an office, judgment may be rendered upon the right of the party claimed to be entitled to the office. Code Civil Proc. 805. In the Virginia case the petition for writ of mandamus was by John F. Lewis and 18 others (appointed by the governor visitors of the medical college) to command the respondents, Whittle and 18 others, who were the acting visitors of the college, to deliver to the petitioner the possession thereof. In the case at bar the incumbent of the office claimed by Kelly, if there be an incumbent, is not a party to the proceeding. Demurrer sustained, with leave to petitioners to file an amended petition in 15 days. We concur: SHARPSTEIN, J.; MORRISON, C. J.; McKee, J.; MYRICK, J. I dissent: THORNTON, J. (59 Cal. 479) OAKLAND PAVING Co. v. HILTON. (No. 11,194.) (Supreme Court of California. May 1, 1886.) 1. MUNICIPAL CORPORATIONS-LOCAL IMPROVEMENTS-CALIFORNIA STREET LAW-EFFECT OF PROVISIONS OF CALIFORNIA CONSTITUTION OF 1879. Section 19 of article 11 of the California constitution of 1879, providing that "no public work or improvement of any description whatsoever shall be done or made in any city, in, upon, or about the streets thereof, or otherwise, the cost and expense of which is made chargeable or may be assessed upon private property by special assessment, unless an estimate of such cost and expense shall be made, and an assessment in proportion to benefits, on the property to be affected or benefited, shall be levied, collected, and paid into the city treasury before such work or improvement shall be commenced, or any contract for letting or doing the same authorized or performed," required no legislation to enforce it, and the provisions of the act of April 1, 1864, entitled "An act to authorize the city council of the city of Oakland to improve the streets, lanes, alleys, courts, and places in said city," which authorized a contract to be made in advance of an assessment to pay for that work, are inconsistent with such constitutional provision, and ceased to be operative on the first day of January, 1880, the date when the constitution took effect. Such constitutional provision does not retroact on any contract entered into for street work, in accordance with law, before the constitution went into operation, but is prospective in affecting with nullity and rendering void any contract entered into after such date, or in annulling any statute then in force or which might thereafter be passed inconsistent with its provisions. MCKINSTRY and SHARPSTEIN, JJ., dissenting. 2. CONSTITUTIONAL LAW-PROVISIONS, WHEN SELF-EXECUTING. When a constitutional provision is prohibitory in its language, no legislation is required to execute such provision, for it is then self-executing. 3. SAME-CONSTITUTIONAL AMENDMENTS IN CALIFORNIA-METHOD OF ADOPTION. Constitutional amendments in California may be proposed in either house of the legislature, and if, when so proposed, two-thirds of all the members elected to each of the two houses shall vote in favor of it, such proposed amendment shall be entered in their journals. By such entry it is meant that the amendment must be copied or enrolled on the journal in full; that is, the identical amendment must appear on the journal, and no identifying or other reference to it in any way will satisfy such requirement. 4. SAME AMENDMENT TO SECTION 19, ART. 11, CALIFORNIA CONSTITUTION-VAlidity of. Constitution amendment No. 1, proposed by the legislature at its regular session in 1883, and attempted to be ratified by vote of the people at the general election in 1884, purporting to amend section 19 of article 11 of the California constitution, is void, and never became, and is not now, a part of the constitution, because said amendment was not entered at large in the journals of the two houses, as provided in section 1 of article 18 of the constitution of California, and the law still stands as it was in the constitution when it was ratified in 1879, unchanged or unaffected by amendment. 5. SAME STREET Law-ConsTITUTIONALITY OF CALIFORNIA ACT OF MARCH 18, 1885. As the proposed amendment to article 11, 19, of the California constitution was not constitutionally adopted, the act of March 18, 1885, providing for work upon |