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Docket Number

Docket No. 7931.

Attorney(S)

Blaine McGowan for Appellant. Frank Thompson for Respondents.

Judges

SCHOTTKY, J. pro tem.

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Smart Summary

Stanley B. Roscoe v. Harvey Goodale et al., Court of Appeal of California, Third District (July 2, 1951)

Docket No. 7931. Opinion by Schottky, J. pro tem.; Peek, J., and Van Dyke, J., concurred. Trial judge: Carl L. Christensen, Jr. Attorneys listed: Blaine McGowan for appellant; Frank Thompson for respondents.

Factual and Procedural Background

The appeal arises from the trial court's order denying an alternative writ of mandate and dismissing the petition for such relief. The petition alleged that the City of Eureka operates under a freeholders' charter and that the respondents are duly elected councilmen. Petitioner (appellant) is the duly elected, qualified and acting city engineer and a registered civil engineer; Woodcock was the duly elected and acting superintendent of public works but was not a registered civil engineer under the state's Business and Professions Code.

The petition alleged that the charter's section 60 assigns to the city engineer duties including making surveys, inspections and estimates required by the council and examining public work done under contract and reporting in writing to the council, and that section 163 assigns supervision of construction of public utilities and enterprises to the superintendent of public works except where assigned to another department.

Following a 1949 bond election, the council contracted with Baldwin and Straub for construction, repair and reconstruction of parts of the city's water system; Baldwin and Straub performed work (including excavation and pipe installation) that petitioner supervised and inspected. On April 18, 1950, petitioner submitted a written report detailing alleged defective work and noncompliance with plans and specifications. On that same date the council passed Resolution No. 3958 (4–1), authorizing the superintendent of public works to appoint supervisors and inspectors for the sewer and water project and to fix their wages.

The petition alleged that inspection work on the project required engineering skill (reading blueprints, plans and specifications) and that the superintendent, who was not registered as an engineer, had assumed or would assume such engineering duties. The petition further alleged that by Resolution No. 3958 the council attempted to transfer duties required of the city engineer to the superintendent of public works (contrary to the charter) and to permit performance of civil engineering work by a person not registered under the Business and Professions Code. Petitioner demanded rescission of Resolution No. 3958; the council denied that demand.

Petitioner sought an alternative writ of mandate ordering respondents to rescind Resolution No. 3958 and to provide funds, fix the number of inspectors for the water and sewer project, and fix their compensation. The trial court denied the petition, ruling that the charter provisions, when construed together with the petition's allegations, failed to show a refusal to perform any clearly established duty owed to petitioner, and that the charter vested discretion in the council and showed no abuse of that discretion.

After briefs were filed and before oral argument, respondents moved in this Court to dismiss the appeal on the ground that the question had become moot. The appellate court granted that motion and dismissed the appeal.

Legal Issues Presented

Whether the city council, by passing Resolution No. 3958, unlawfully transferred or usurped duties properly belonging to the city engineer (petitioner) under the city charter and thereby violated the charter and the Business and Professions Code by permitting or authorizing non-registered personnel to perform engineering work.
Whether a writ of mandate should issue ordering the council to rescind Resolution No. 3958 and to provide funds and fix the number and compensation of inspectors for the water and sewer project.
Whether the appeal should be dismissed as moot because the contract work referred to in the petition and resolution has been completed, accepted and paid for, leaving no practical relief that a writ could provide.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Zagoren v. Hall, 122 Cal.App. 460, 10 P.2d 202	Cited for the invariable rule that a court of equity will refuse to issue a writ of mandamus when it would be useless, unenforceable or unavailing.	The court relied on this authority to support dismissal of the appeal as moot because no effective relief could now be granted.
Spotton v. Superior Court, 177 Cal. 719, 171 P. 801	Authority for the principle refusing mandamus when issuance would be futile or unenforceable.	Referenced among authorities establishing that mandamus should not be issued where it would be useless; used to bolster the court's mootness conclusion.
George v. Beaty, 85 Cal.App. 525, 260 P. 386	Supports the rule that mandamus will be refused when the remedy would be unavailing.	Included as part of the body of precedent cited to justify denying relief as moot.
Voinich v. Poe, 52 Cal.App. 597, 199 P. 74	Another case cited for the refusal to issue mandamus if it would be useless.	Used to demonstrate established precedent for refusing mandamus under circumstances where no practical relief remains.
Gay v. Torrance, 145 Cal. 144, 78 P. 540	Authority for the proposition that mandamus will not be granted when unavailing.	Quoted among other authorities to support the court's decision to dismiss as moot.
Crangle v. City Council of Crescent City, 219 Cal. 239, 26 P.2d 24	Cited as additional precedent demonstrating refusal to issue mandamus when ineffective.	Relied upon in reinforcing the principle that made issuance of a writ inappropriate given the completion and acceptance of the work.
Chambers v. Ashley, 33 Cal.App.2d 390, 91 P.2d 932	Cited for the same general rule concerning mandamus being refused where it would be futile.	Included among cases the court referenced to justify dismissing the appeal as moot.

Court's Reasoning and Analysis

The Court of Appeal summarized the procedural posture: after briefing and before oral argument respondents moved to dismiss the appeal as moot. The trial court's underlying ruling had been that the charter provisions and the petition's allegations failed to show a refusal to perform any clearly established duty to petitioner and that the charter vested discretion in the council, with no abuse of that discretion shown.

On the question of mootness the appellate court examined the materials submitted in support of the motion to dismiss and found, without contradiction, that the contract and the work referenced in the petition and resolution had been completed, accepted by the city and paid for. Given that factual state of affairs, the court reasoned that even if it were to agree with appellant's principal contentions about the council's actions, issuance of a writ of mandamus would accomplish nothing because the underlying project had been finished and paid.

The court relied on established authority (citing Zagoren v. Hall and several other cases) for the well-settled equitable principle that mandamus will be refused when the writ would be useless, unenforceable or unavailing. Applying that principle to the undisputed factual showing that the project work and payment had been completed, the court concluded that the question presented by the appeal had become moot and that there was no effective relief the court could grant.

Because of this conclusion on mootness, the appellate court expressly declined to decide the substantive merits of the controversy (the question of whether the council exceeded its authority or violated statutory or charter provisions by assigning engineering work to an unregistered superintendent).

Holding and Implications

DISMISSED. The appeal was dismissed on the ground that the controversy had become moot because the contract work about which petitioner complained had been completed, accepted and paid for, and therefore no effective relief could be provided by a writ of mandamus.

Implications:

The direct effect is that the appellant's petition for an alternative writ of mandate was not granted on appeal; the trial court's denial of the petition stands in that the appeal has been dismissed as moot.
The court did not reach or decide the substantive legal question of whether the council improperly transferred duties or violated the Business and Professions Code or the charter; the opinion expressly states the question on the merits was not decided as mootness made decision unnecessary.
The opinion does not purport to establish new precedent on the substantive issues; it applied existing precedent concerning the refusal to issue mandamus when the remedy would be futile.

This summary is limited to the information contained in the provided opinion and does not add or infer facts or holdings beyond the text of that opinion.

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STANLEY B. ROSCOE, Appellant, v. HARVEY GOODALE et al., Respondents.

SCHOTTKY, J. pro tem.

This is an appeal from an order denying an alternative writ of mandate and dismissing the petition therefor. After the briefs had been filed and prior to the date set for the oral argument, respondent filed a motion to dismiss the appeal upon the ground that the question presented has now become moot.

The petition for the writ alleged that the city of Eureka was organized and exists under a freeholders' charter and that the respondents are the duly elected councilmen; that petitioner, appellant here, is the duly elected, qualified and acting city engineer and also a qualified and registered civil engineer; that one Woodcock is the duly elected, qualified and acting superintendent of public works of the city but is not a civil engineer nor registered with the state board under the Business and Professions Code. Said petition alleged further that section 60 of the charter provides, among other things, that the city engineer shall "Make all surveys, inspections and estimates required by the Council. . . . He shall examine all public work done under contract, and report thereon in writing to the Council"; and that section 163 of the charter provides in part that "The Superintendent of Public Works shall have supervision of the construction . . . of all public utilities or public enterprises of every kind and nature, . . . not in this Charter assigned to another Department . . ."; that at an election held in 1949 the electors of the city voted bonds in the sum of $800,000 for improvement of the sewer system and $1,200,000 for the improvement of the water system and for the reconstruction of parts of both systems; that in accordance with the bond election the council entered into a contract with Baldwin and Straub for the construction, repair and reconstruction of parts of the water system for $167,348.70, and Baldwin and Straub actually entered into the work and did actually dig up parts of Harris Street and installed certain pipes, and petitioner supervised and inspected the work; that petitioner, as city engineer, on April 18, 1950, submitted a written report setting forth in detail the defective work being done and pointing out where the plans and specifications had not been followed; that on April 18, 1950, after receiving the report, the council passed Resolution No. 3958 by a four to one vote, authorizing the superintendent of public works to appoint all supervisors and inspectors necessary in connection with the sewer and water project and fixing the rates of wages for said employees appointed by him; that the work of inspections on the project is engineering work and calls for the skilled and professional ability of an engineer to read blueprints, plans and specifications, and the application thereof to the work being performed; that petitioner is informed and believes and therefore alleges, that the superintendent of public works has or will assume to perform such engineering work, notwithstanding he is not registered as such; that by the resolution the council attempted an engineer and not skilled in engineering work and not to "deprive said City Engineer [petitioner] from his duties" required by section 60, subdivision 1, of the charter and place those duties in the office of Superintendent of Public Works; that the council attempted to evade the provisions of the charter by establishing rates to be paid for inspectors and no funds were established for such inspectors; that the council exceeded its authority in the further respect that it placed upon the Superintendent of Public Works the duty of doing civil engineering work contrary to the Business and Professions Code and contrary to the charter provisions that the Superintendent of Public Works should not do or perform duties assigned to another department, and that the duties under consideration are assigned to the Department of Engineering; that after the resolution was passed, petitioner, in writing, demanded of the council and each member thereof that they rescind the resolution, a copy of which demand is attached to the petition; that the demand was argued before the council and denied.

Petitioner prayed for an alternative writ of mandate ordering and directing respondents to rescind said Resolution 3958 and to provide funds and fix the number of inspectors for said water and sewer project, and their compensation.

The trial court in denying the petition held that "the Charter provisions construed together, coupled with the allegations of the petition, fail to show a refusal to perform any clearly established duty owing to petitioner, and by proper construction affirmatively show the vesting of discretion in the Council, and no abuse in the exercise thereof."

[1] The appeal on the merits presents an interesting question and has been ably presented by counsel in their briefs. But as we have concluded that the motion to dismiss the appeal, upon the ground that the question has now become moot, should be granted, we deem it unnecessary to decide this question.

[2] It appears, without contradiction, from the documents and records filed in support of the motion to dismiss the appeal, that the contract and work referred to in the resolution and petition have been completed and accepted and paid for by the city of Eureka, and that even if we should agree with the main contention of petitioner and appellant, there is nothing that could be accomplished now by the issuance of a writ of mandamus. As this court said in Zagoren v. Hall, 122 Cal.App. 460, at page 462 [ 10 P.2d 202]: "It is the invariable rule that a court of equity will refuse to issue a writ of mandamus when it is useless, unenforceable or unavailing. ( Spotton v. Superior Court, 177 Cal. 719 [ 171 P. 801]; George v. Beaty, 85 Cal.App. 525 [ 260 P. 386]; Voinich v. Poe, 52 Cal.App. 597 [ 199 P. 74]; Gay v. Torrance, 145 Cal. 144 [ 78 P. 540]; 38 C.J. 551, sec. 23.)" See, also, Crangle v. City Council of Crescent City, 219 Cal. 239 [ 26 P.2d 24]; Chambers v. Ashley, 33 Cal.App.2d 390 [ 91 P.2d 932].

We conclude, therefore, that the question presented upon this appeal has become moot, and that the appeal should be and is hereby dismissed.

Peek, J., and Van Dyke, J., concurred.

ROSCOE v. GOODALE