32 Cal. 75 | Cal. | 1867
This is an action brought by the Attorney-General, under the provisions of the fifth chapter of the Practice Act, to determine the right or title to the office of Justice of the Peace for the City of Sacramento, as between the relator, Thomas Conger, and the defendant, Thomas W. Gilmer. The relator and the defendant both claim title to the office under and by virtue of an appointment made by the Board of Supervisors of Sacramento County to fill a vacancy occasioned by the death of James Coggins, who had been elected to the office in question at the judicial election in 1865, and was holding it at the time of his death.
The case is as follows: The office having become vacant by the death of Coggins, the Board of Supervisors, at a regular
The only question involved in the case is whether the Board of Supervisors had the power which they exercised, or attempted to exercise, on the 6th of April, to reconsider and set aside their previous action in relation to the appointment of the relator, and direct their clerk not to issue his commission. If they had, their subsequent appointment of the defendant was valid, and he having duly qualified is now rightfully in possession of the office. Whether they had or not depends upon the nature of the power which is vested in them to fill vacancies—whether the power is that of “ appointment ” or “ election,” as contradistinguished from each other, and as to that question we think there is little room for controversy. The power to fill vacancies, whether vested in the Governor, Boards of Supervisors or other public functionaries,
The fact that Boards of Supervisors, when they exercise the appointing power, do so by first taking a vote, does not affect the character of the power or render it at all different from what it is when exercised by the Governor. The Board acts by majorities, and in all cases the sense of the Board has therefore necessarily to be ascertained by taking a vote. The will of the Board can be ascertained in no other way, and the vote serves that purpose only, and does not convert the power exercised by them from that of “ appointment ” to that of “ election.”
The general law upon the subject of offices and officers (Statutes 1863, p. 388, Sec. 16) provides that every officer elected or appointed to fill a vacancy shall be commissioned or receive a certificate of election or appointment. It is true that the Act providing for the government of the County of Sacramento, and which, so far as it goes, controls the decision of this case, has no such provision, and that all Acts and parts of Acts inconsistent therewith are so far repealed, but it does not-therefore follow that no commission or certificate is to be issued to officers in Sacramento County. On the contrary,
The power then being that of “ appointment,” the next question is, when is the appointment complete—when can it be said that the appointment has been made ? Has it been made when the President of the Board has announced the result of the ballot, or when the commission or certificate of his appointment has been made out ?
In Marbury v. Madison, 1 Cranch, 54, it was held by Mr. Chief Justice Marshall that the appointment has been made when the last act required of the person vested with the power has been performed. In that case the appointment was made by the President of the United States, and it was held that the appointment was complete when the President had signed the commission. This must be so for obvious reasons. Until the last act has been performed the whole matter is in fieri, and within the control of the person or persons by whom the appointment is to be made, and there is nothing to prevent them from changing their minds and appointing some other person than the one first selected. Suppose the Grover nor should be called upon to fill a vacancy and should determine in his own mind to appoint a particular individual. Undoubtedly he may change his mind as often as he may please until be has finally signed a commission to some particular individual. Until then he has not acted. Until then the whole matter is in fieri. Where the appointment comes from the Board of Supervisors the rule is the same. Until they have finally acted—that is to say, until the commission or certificate of appointment has been made out in due form under the seal of the Board, and signed by the officers of the Board, the whole matter is still within their control and they
It results that the Board had power to rescind their first action at the time they did so, and further, that the subsequent appointment of the defendant was valid.
Where a person is elected to an office his right is established by the result of the election, and does not depend upon his getting a commission, for in such a case the choice comes from the people, and when they have voted the last act required of them has been performed. In such a case the issuing of the commission is merely a ministerial act, to be performed by the proper officers, and not, as in the case of a taking by appointment, a part of the act to be done. Hence the authorities cited by the Attorney-General have no application.
The judgment is reversed and the Court below directed to enter a judgment in conformity with the views expressed in this opinion.