Appellant makes two objections to the jurisdiction of the County Court:
1st. That the statute only confers the right to hear contested elections to an office to be exercised in and for such county.
2d. That the Constitution gives to the District Court jurisdiction inall cases in law and equity where the amount in controversy exceeds two hundred dollars.
Both of these points may be considered as settled by the decision of this Court in Whipley v. McKune (12 Cal. 352).
This statute was enacted in 1850, and the mode of contesting an election for the office, as well as the election, has remained unchanged, except by the amendments of the Act of the 27th of April, 1855 (p 160).
True, the word " county" only is used in Section 51 of the Act of 1850 (Wood's Digest, 580). But the caption of that section is general, and provides for " contesting elections other than for members of the Legislature, Governor, and Lieutenant-Governor." This exception necessarily includes the office of District Judge. He is a county officer quoad hoc; so with respect to all the counties within his district.
Section 5 of the Act of 1850 was amended by Section 10 of the Act of the 25th of April, 1851, (Ch. 15,) by extending the time for filing the statement to forty, instead of twenty, days, as the Act of 1850 provided. The word " district" is still retained in the amendment. This, with the caption to Section 51, which is really a part of the law, leavesno doubt that the Legislature intended to authorize the contest of district officers. The Constitution provided for determining contests for the office of Governor, Lieutenant-Governor, and members of the Legislature. This Act was intended to authorize the inquiry as to all other officers. (See Williams v. Walton , 9 Cal. 145.)
It is not admitted that this proceeding is equivalent to an information in the nature of a quo warranto to try title to an office.
The Government is not a party. The statute gives the right to any elector to make the statement contesting the right of any one claiming to have been elected, or of the validity of the whole election. The party claiming the office adversely need not be a party to the proceeding, and he is not estopped by the judgment any more than the Government would be. There need be no relator, or a third party. The statement is direct to the Court, without form, embodying the facts.
The Government is an indispensable party to an information in the nature of a quo warranto. At common law it was a writ of right for the King against the usurper of an office, franchise, or liberty. (3 Bl. 262.) The same rule is applied tothe Government of the United States. (Wallace v. Anderson, 5 Wheat. 292.) The writ was dismissed for the want of jurisdiction. Chief Justice Marshall said that " a writ of quo warranto could not be maintained but at the instance of the Government." (See, also, Commonwealth v. Burrell, 7 Barr, 34; Commonwealth v. Lexington, etc., 6 B. Mon. 399; Pr. Act, Sec. 310; State v. Hardie, 1 Ired. Law, 42; 1 Bl. Notes, 66, 67.)
The writ of quo warranto falling into disuse gave way to an information by the Attorney-General, in the nature of a quo warranto. (3 Bl. 262.) But there is one fact essential to the exercise of this jurisdiction, not common to this case--the party must not only claim the office, or franchise, but he must be actually exercising its duties or liberties. (The King v. Whitewell, 5 Term Rep. 85; Buller's Nisi Prius, London Ed. 1791, 212.)
This common law rule is preserved in the modern cases. (The Queen v. Slatter, 11 Adolph. & El. 505-508; The Same v. Quayle; Regina v. Armstrong, 34 Law and Eq. 290, 1856.) This case, then, is one of the special cases named in our Constitution. (People v. Scrugham, 20 Barb. 203-205.)
Thefirst reply to the objection based on Turner's ineligibility is, that the answer of Haynes does not state the emoluments of the office held by Turner. The term " lucrative office" is a conclusion of law. It is said that he held the office of Inspector of Customs, but avers no fact as to the emoluments.
But is an Inspector of Customs such an officer as the State Constitution contemplates? All officers under the Federal Government, except in cases where the Constitution itself provides, are to be established by law, (United States v. Maurice, 2 Brock. 96,) and they must be appointed by the President, unless in cases where Congress by law vests the appointment of inferior offices in Courts of law, " or the heads of departments."
Chief Justice Marshall says in that case that an office is defined to be " a public charge or employment; " and he who performs the duties of the office is an officer. And although an office is " an employment," it does not follow that every employment is an office.
The Act of the 2d of March, 1799, (1 Stat. at L. 641; Brightly's Dig. p. 319, Sec. 3,) provides the mode of appointing Inspectors, in the section defining the duties of Collectors. They" shall, with the approbation of the principal officer of the treasury department, employ proper persons as Weighers, Gagers, Measurers, and Inspectors, at the several ports within their districts." By Section 31 of the Act fixing compensation at two dollars per day, authority is given to employ " occasional Inspectors; " and by Section 41, where the compensation is increased fifty per cent., " persons employed as occasional Inspectors" are mentioned.
In the case of United States v. Wood, (2 Gall. 361,) Judge Story decides that the office is held at the pleasure of the Collector, and ceases at his death, resignation, or removal. (See, also, Republica v. Dallas, 3 Yates, 314, 315; 17 S. & R. 219.)
This employment being at the mere will of the Collector, and probably an " occasional" employment besides, no information would lie at the instance of the Government for an alleged usurpation of its duties. (State v. Champlin, 2 Bailey, 223.)
It is argued that all votes cast for Turner were so many blanks, and count for Haynes. This is not the law of this State. The Legislature ruled on this question in the Duncom be case at the present session. (See, also, Whitman'scase.)
The rule is, that a candidate holding the federal office is not ineligible, but that he cannot hold both the federal and State office; the acceptance of the last is not forbidden, but the effect of the acceptance is to vacate the first. (4 Md.; Rodman v. Harcourt, 4 B. Mon. 225.)
JUDGES: Baldwin, J. delivered the opinion of the Court. Terry, C. J. concurring.
OPINION
BALDWIN, Judge
On petition for rehearing, the following opinion was delivered by Baldwin, J.--Terry, C. J. concurring:
We have given the argument of the Appellant's counsel a reconsideration, as desired. We adhere to the positions in our former opinion: 1st. That the Act giving this jurisdiction over the subject of contested elections to the Judge of the County Court is constitutional, and that Judges of the District Court are embraced within it. 2d. That the fact that the highest candidate is ineligible, does not give the election to the next on the list. 3d. That the special defense set up in the answer--the ineligibility of Turner--was no bar to the proceeding, because this matter, if true, did not protect the incumbent from the consequences of an unauthorized possession of the office. But it was not necessary to hold, in order to decide the case before us, that the place or employment of Inspector of Customs was not an office under the United States, within the meaning of the Constitution of the State. Neither the Government, nor Judge Turner, the claimant of this judicial office, is before us, and, therefore, neither could be bound by the judgment of the County Judge, which only determines that the defendant is not entitled to the office, and furnishes the Executive with prima facie evidence that Judge Turner is. The forcible argument addressed to us by the defendant's counsel suggests sufficient doubts of the correctness of the last proposition of the opinion, to leave the question open and undecided until a case shall be presented directly raising it, and all the facts touching the matter brought out, and an opportunity be afforded for fuller consideration. We, therefore, deny the prayer of the petition for a rehearing, but modify the opinion in the manner suggested.
Crawford v. Dunbar