People ex rel. Fox v. Templeton

I. The first point made by appellant is, that the election set up by relator, which took place in May, 1856, is absolutely void, and for this he relies on the case of the People v. Johnson, 6 Cal. 673.

a. But it is respectfully submitted, with all due deference to the opinion of the learned Judges who then occupied the bench, that that decision is erroneous. It was evidently founded upon the last section of the schedule annexed to the Consolidation Bill; and in order to give that section a liberal construction, the Court has overridden the express will of the Legislature as found in other portions of that schedule. See Stat. 1856, p. 176.

b. Even if that decision be correct, the subsequent Act of the Legislature (Stat. 1857, p. 65) so far cured the defect in the former election as to confirm the relator in office until his successor was elected and qualified, and entitled to enter upon the duties of the office according to law.

II. The relator was again elected in May, 1857, under the " Act to Reorganize and Establish the County of San Mateo." The term of office prescribed by that Act was " until the next general election," and for the term fixed by law from and after the next general election, the same in all respects as if elected at the next general election. Stat. 1857, p. 223.

a. The term of office of County Judge is fixed, not only by statute, but by the Constitution, at four years. (Art. 6, sec. 8 of the Constitution; Wood's Digest, p. 151, art. 652, and p. 558, art. 2860.) And under these statutes the term begins and ends, and the elections take place at specified terms, " except in cases otherwise provided by special enactment." In this case, the election and term of the relator was " otherwise provided for by special enactment," and that same special Act provided that future elections and terms should be governed by the general law above referred to. See Stat. 1857, p. 223, above cited.

b. Where the Act organizing a county prescribes the term of the officers first elected, and no provision is made for the election of their successors, the election of successors must be governed by the general law. People v. Church, 6 Cal. R. 76; People v. Colton, 6 Cal. Rep. 84.

III. The construction sought to be put upon the Statute of April, 1857, by appellant, cannot be maintained. He asks the Court, in effect, to put what he deems a literal construction (so far as the office of County Judge is concerned) upon that part of the Act which provides for the term " until the next general election," and to wholly disregard the remainder of that sentence. If any part of that Act is nugatory, as applied to the case of the relator, it is that part to which appellant asks the Court now to give force and effect, and nugatory, for the reason that it was unnecessary. The relator was already in office under the election of 1856, and the Act of March, 1857, confirming him in office; and under that title was entitled to continue in office, whatever may have been the result of the election in May, 1857, until the first Monday in April, 1858, the time when the Court below very properly intimates his term began under the election of May, 1857.

a. But suppose his term, under the election of 1857, did commence immediately after the election, as appellant claims it did, his construction cannot then hold good, for the Legislature had no power, even if they so intended, to provide for the election of a County Judge for a term of six months only; they cannot abridge the constitutional term of four years. With reference to the office of County Judge, the Constitution fixes no time when the term shall begin, or when the officer shall be elected. The term must be four years; it may begin on the day fixed by the general law, or on any otherday, according to contingent circumstances. People v. Langdon, 8 Cal. R. 1; People v. Whitman, 10 Cal. R. 38; Brodie v. Weller, 11 Cal. R. 77.

b. The Legislature in that Act has assumed to specify the effect of its provisions; and if the term did commence in May, 1857, the Court has no power to say it was a six months' term, but must give the full term prescribed by the Act, or, at least, so much of it as can be given under the Constitution--four years--and declare the Act void as to the residue.

When the statute assumes to specify the effects of a certain provision, we must presume that all the effects intended by the law makers are stated. Perkins v. Thornbury, 10 Cal. R. 189; People v. Whitman, Ib. 38; Lee v. Evans, 8 Cal. R. 424; Bird v. Dennison, 7 Cal. R. 307.

IV. Appellant tells us this was a special election. We deny the proposition. It was an election held under a special enactment, but it was not a special election, in the legal sense of that phrase. A special election is one held to fill a vacancy in an office already existing. This was an election to fill offices created by the Act which provided for the election.

a. To give this Actthe construction asked by appellant, would be equivalent to overturning the organic act of almost every new county in the State. Nearly every Act organizing a new county, makes the first election come in the spring, and, in the same manner that this does, extends the terms of the officers first elected; in some of them, that extension is made in express words as to the office of County Judge. See Act to Organize the County of Merced, Stat. 1855, p. 125; Act to Organize the County of Del Norte, Stat. 1857, p. 35, and others.

V. This case differs from the case of the People ex rel. McKune v. Weller, 11 Cal. 49, cited by appellant, in this: In that case the party claiming the office against his predecessor was relator; here the case is reversed. He who claims the office against his predecessor, has seized upon that office, and compelled the predecessor to bring his action. The rule must then be reversed; defendant's title must first be examined, and if he has none, that alone will be decisive of the case. Doane v. Scannell, 7 Cal. R. 393; People v. Scannell, 7 Cal. R. 432.

JUDGES: Baldwin, J., delivered the opinion of the Court. Terry, C. J., concurring.

OPINION

BALDWIN, Judge

Leaving out some facts which are immaterial in the view we have taken of this question, the case may be thus stated: Fox, the relator, was elected Judge of San Mateo County, in May, 1857, that being the day fixed by the Act of April 18, 1857, for an election for officers of that county. The defendant was elected at the general election of 1858. The Act of April, 1857, (Session Acts, 222) is rather ambiguous in the section authorizing the election; it is as follows: " There shall be an election held for all the county officers of said county, and to ascertain the place preferred by its electors, for their county seat, to be hereafter fixed by Act of Legislature, on the second Monday of May next; and the officers elected at such election shall hold their respective offices until the next general election, and for the terms fixed by law, from and after the next general election, the same in all respects as if elected at the next general election, and until their successors are respectively elected and qualified, as provided by law."

By the Constitution, Judges of the County Courts hold their offices, when elected, for four years. It is in the power of the Legislature, in organizing, or after organizing a new county, to prescribe the time of elections for county officers, and also the period of the commencement of their terms; but it is not competent for the Legislature to change the period of the tenure of the office of Judges of County Courts, any more than to change those of Supreme and District Judges. It is evident, from the terms of this Act--" the officers elected shall hold their respective offices until the next general election, and for the terms fixed by law" --that it was contemplated that these officers--the Judge among them--should enter upon their offices as soon as the election was announced, or within a reasonable time thereafter. From the time of the assumption of the office, the term of the Judge elected would legally commence, and terminate, of course, at the expiration of four years from that time. If the Act is to be construed as extending the term beyond this, as probably is the literal construction, the Act so far is void, leaving in force only so much as is constitutional. (See People ex rel. v. Burbank, ante 378.) The other points have been already decided by this Court.

The judgment is affirmed.