93 P. 1061 | Cal. Ct. App. | 1907
This action was brought to enjoin the board of supervisors of Santa Clara county and the several members thereof from declaring a vacancy in the office of district attorney of said county, and then filling such office by appointment, and also to enjoin the county clerk of said county from issuing a certificate of appointment to any person who might be appointed district attorney of said county by said board of supervisors.
Judgment was entered for plaintiff as prayed for, and this appeal is from the judgment.
At the general election held in November, 1902, plaintiff was duly elected district attorney of said county for the term of four years, his term to commence on the first Monday of January, 1903. He duly qualified, entered upon the discharge of the duties of his office, and ever since has continued in possession of said office and in the discharge of the duties thereof. At the general election held in November, 1906, the plaintiff and one Arthur M. Free were each candidates for the said office of district attorney. Free received a plurality of the votes cast at such election, and was declared by the board of supervisors duly elected to such office. He declined and refused to file his official bond and take the oath of office. After the declaration by the board of supervisors to the effect that Free had been duly elected, the plaintiff instituted proceedings in the superior court of said county to contest the election of said Free, which resulted in a judgment declaring that at the time of the election Free was ineligible to the office by reason of the fact that he held a lucrative office under the United States government, the compensation of which exceeded $500 per year, and annulling his election for this reason. The judgment, besides declaring that at the time of his election Free was ineligible to the said office, in effect adjudged that plaintiff was not elected to said office. This judgment has this day been affirmed here. (Campbell v. Free
(No. 400), ante, p. 151, [
It is provided in the Code of Civil Procedure (section 1111) that the right of any person declared elected may be contested when the person was not at the time of the election eligible to the office. The code evidently contemplates that cases may arise in which the person declared elected, and who receives the highest number of legal votes, was at the time of his election ineligible to the office. In many cases the evidence as to the ineligibility of a candidate is conflicting, and it requires a careful weighing and analysis of the evidence by the trial court to determine the ultimate fact. The code in such case provides for a contest as to the right of a person declared elected to an office, although he be at the time of the election ineligible. It provides (section 1122) that after hearing the "proofs and allegations of the parties the court must pronounce judgment in the premises, either confirming or annulling and setting aside such election. We must then look to the Political Code as to when an office becomes vacant. It is there provided (section 996): "An office becomes vacant on the happening of either of the following events before the expiration of the term: (1) The death of the incumbent. . . . (10) The decision by a competent tribunal declaring void his election or appointment."
The court declared void the election of Free before the expiration of his term, and the question therefore narrows itself to the one as to whether or not he was theincumbent.
It has been held, and is the rule in this state, that one who has been elected to an office, but who fails to qualify by filing the bond, is in the sense of the statute theincumbent, although he never was in possession of nor performed any duty in connection with the office. The office in such case has been held to become vacant by his refusal to file his official oath or bond within the time prescribed. (People v.Taylor,
The court in that case, after a careful consideration of section 996 of the Political Code, said: "This provision of the code regards the person duly elected to an office as the incumbent of that office from the time of the commencement of the term for which he was elected until the expiration thereof, whether he qualifies or not." The difference between that case and the one at bar is that there the person elected *158 neglected and failed to qualify after his election, and here he neglected to qualify by making himself ineligible before election. There the person elected was ineligible at the time his term began because he did not comply with the statutory mandate as to qualifying; here he was ineligible because at the time he was elected he had neglected to resign his office of postmaster. In the one case the person elected did not do that which the law declared that he must do after his election in order to be qualified to get title to the office; in the other he neglected to do that which the law required that he should do in order to be a person qualified to be elected to the office. In both cases the officer was elected. In neither was he entitled to the office when the term commenced. In the case cited the court held that the person elected was not eligible to take the office at the time the term began; in the case at bar the court held that the person elected was not eligible to take the office at the time of the election. We think that it would be a distinction without a substantial difference to hold that in the case cited the party elected was the incumbent, and that in this case he was not. We therefore conclude that the office became vacant upon the decision of the court declaring void the election of Free.
The decision in People v. Rodgers,
In the case at bar Free did not qualify nor enter upon the duties of the office; but we cannot see any reason for holding that an office becomes vacant in a case where an ineligible officer, who has been elected, enters into possession of it, and a judgment is afterward entered declaring his election void, that would not apply with equal force to a case where, under like circumstances, the ineligible officer has not taken possession of the office. The question as to who is in the actual possession of the office is not made a factor by the provisions of the code. Nor would the fact that Free failed to qualify and take the oath of office make any difference. InAdams v. Doyle,
The conclusion we have reached does not injure the plaintiff. He has enjoyed the full benefit of the term for which he was elected. He was not elected for the term he is seeking to hold. The question involved is one of public concern. The office having become vacant, the ordinary machinery of the law cannot be enjoined from filling such vacancy by appointment.
The judgment is reversed.
Hall, J., and Kerrigan, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on February 17, 1908.