I. The defendant was lawfully entitled, under the law, to hold the office by virtue of his appointment in any event, until January, a. d. 1858, long after this suit was commenced.
II. But if he could not so hold till January, 1858, still he was entitled and required to hold until some one possessing the right and qualifications to take theoffice from him, demanded it, and no one demanded it but the relator, and he was not entitled or qualified to take it.
III. The first question to arise, as well under our plan of treating the question, as under the assignment of errors by plaintiff is, up to what time did the appointment of Wells give him a right to possess the office?
The Board of Supervisors of Yuba County appointed him under the authority conferred upon them for that purpose by section 20 of the " Act creating a Board of Supervisors in the counties, & c." (Laws, 1855, p. 55; Wood's Digest, p. 696; and see section 25 of same Act, p. 66; Wood's Digest, p. 697.
These statutes, together with the Act of April, a. d. 1857, defining the time when the persons elected shall enter upon the office, are in pari materia, and as such, must be construed together, so as to harmonize and give effect to each.
Smith, in his " Commentaries on Constitutional Construction," section 639, says: " That several Acts in pari materia, and relating to the same subject, are to be taken together, and comprised in the construction of them, because they are considered as having one object in view, and as acting upon one system, has been declared in several cases." See also section 640.
Again, the rule is laid down in the case of the United States v. Freeman (3 Howard, 564) as follows: " The correct rule of interpretation is, that if divers statutes relate to the same thing, they ought all to be taken into consideration in construing any one of them; and it is an established rule of law, that all Acts in pari materia, are to be taken together, as if they were one law."
In the ninth volume of Bacon's Abridgment, (edition of 1854) page 243, the rule is laid down as follows:
" It is an established rule of law, that all Acts in pari materia are to be taken together, as if they were one law ."
Also, Rex v. Locdale, 1 Burrows, 447; 4 D. & East, (4th Term R.) 450.
Hence, under the rule as thus laid down, if section 4 of the Act concerning County Treasurers, secs. 20 and 25 of the Act concerning Boards of Supervisors, and the Act of April, 1857, be read together as one Act, the soundness of our construction is apparent.
All the power with which the Court of Sessions was endowed, except criminal jurisdiction, was transferred to the Board of Supervisors by section 25of the Act concerning Supervisors, and the tenure and term of their appointee as County Treasurer, must be determined by section 4 of the special Act concerning County Treasurers, defining the term of his office as such appointee. The special Act referring to his office must control, no matter how the other county officers, not specially provided for, may be affected by the latter part of section 20 of the Supervisor Act. (Sedgwick on Statute and Constitutional Construction, page 123.) Again: it would seem that the Legislature intended all along to except this office from any limitation by a general Act; for the same Legislature which passed the Act concerning County Treasurers, and thereby made the office appointive in case of vacancy, passed the Act of 1850, concerning Offices. Laws of 1850, page 209.
The argument that the appointment reached only to election day, proves too much, and leads to much trouble and absurdity.
The case of the People v. Mott, 3 Cal. 504, cited by appellant, has no bearing on this question. That was decided upon the ground that the office was a constitutional office, and the Constitution provides the term of the appointee, by saying that the commission of Mott " should expire" at the next general election.
In the case of Powers v. Hunt (2 Humphrey, 24) the Constitution itself defined the time which the appointee should hold, and declared after a vacancy occurred, and an appointment thereto, " such office shall be filled by the qualified voters at the first election for any of the county officers."
But again: our construction of the law in this matter is sustained by the Act of April, 1857, in that it makes the term of every person thereafter elected to this office, to commence on the first Monday of January following his election. The fact that no exception is made, shows that none was intended to exist. The fact that by this law every person elected thereto was not to take the office till January following his election, proves that the Legislature did not intend that any person required to take it before, should be elected .
Again: our Constitution, art. 40, sec. 6, provides that the County Treasurers shall be elected or appointed as the Legislature shall direct; and by sec. 7, that the duration of the office, if not declared by law, shall be held during the pleasure of the appointing power for any term not exceeding four years.
We have shown that the duration cannot be held to be fixed by sec. 20, but is by sec. 4. But suppose it was not so fixed; then of course by the Constitution, Wells would hold during the pleasure of the Board. He was appointed in the place of Williams, resigned, and in default of any steps taken by them to provide another to fill the office before January, 1858, their pleasure must be deemed to have been that Wells hold till that time.
II. But if he could not so hold till January, 1858, still he was entitled and required to hold until some one possessing the right and qualifications to take the office from him, demanded it; and no one demanded it but the relator, and he was not entitled or qualified to take it.
The office of County Treasurer is not simply a franchise in the nature of office, the possession of which is only a matter of advantage to the incumbent, but is a trust charged with duties and responsibilities of great importance to the public which cannot be neglected without serious public inconvenience and detriment.
The custody and preservation of the public funds are with this office.
It will not probably be denied that the incumbentmight hold as a locum tenens beyond the exact limit of his term; in other words, till his successor was qualified. No person is provided by law to whom he can deliver the office and effects on going out, but " his successor," which more than implies that he shall keep them till a successor is provided, except in case of death, when his legal representatives will take charge of the same, and deliver over to a successor when he appears. Act concerning County Treasurers, sec. 17; Wood's Dig., p. 714, art. 3432.
Even if this were not so, this action being only upon the relation of Fowler, and predicating defendant's liability to ouster upon relator's right to enter, is not in the form to oust the defendant simply, and leave the office empty.
But again: if Williams' term was not terminated by election day, but ran to January, 1858, and Wells had no right to hold the balance of the extended term, and there had been any law for electing some one to fill the balance of that unexpired term, we say such an election was a special election. People v. Porter (6 Cal. 28).
Section 30 of the Act concerning Officers (Wood's Dig., p. 559) declares when vacancies occur inoffice.
Sections 3 and 4 of the Act concerning Elections (Wood's Dig., p. 375) mentions only two kinds of vacancies in office to be filled; one occurring by the expiration of " the full term thereof," and the other by some other means, as death, resignation, etc.
It is clear that every election to fill a vacancy occurring otherwise than by the expiration of " the full term" is, under the Act, a special election, for the validity of which there must be an order therefor by the Board of Supervisors, designating the office to be filled, and the time of holding the election, (section 9, Act concerning Elections, Wood's Dig., p. 375) and a publication of such order as notice for ten days in the county, (Section 6, Act concerning Elections).
There must have been a time fixed by the proper officers; (section 3) that it may have come on the day for general election, cannot dispense with these requirements. People v. Porter, 6 Cal. 28. But none of these things were done, says the report of the Referee.
Hence, unless the period of Wells holding the office was a full term, the election was unauthorized, and the relator could take nothing by virtue thereof.
JUDGES: At the July Term, 1858, Burnett, J., after stating the facts, delivered the opinion of the Court. Terry, C. J., concurring. Field, J., having been counsel in the Court below, did not sit in the case.
OPINION
BURNETT, Judge
A reargument was subsequently granted in this case, and at the October Term, 1858, the following opinion was delivered by Baldwin, J.--Terry, C. J., concurring.
The judgment is affirmed on the authority of People ex rel. McKune v. Weller, decided at this term (ante 491).