118 Cal. 393 | Cal. | 1897
At the municipal election of the city of Sacramento, held in March, 1890, the relator was elected to the office of chief of police, and the first section of the act under which he was elected (Stats. 1871-72, p. 243) provided that he should enter upon the duties of his office on the first day of the month next succeeding his election, and should hold his office “for tbe term of two years, and until his successor is elected and qualified.” At the city election in 1892 the appellant received a majority of the votes cast for that office, and, having been duly declared elected, received a certificate of election and entered upon the duties of his office. At the time of his election he was not eligible to the office for the reason that he did not become a citizen of the United States until February 26, 1892, less than ninety days prior to the election. (Pol. Code, sec. 1083.) In a proceeding instituted 'by an elector of tbe city contesting bis right to hold the office, a judgment was rendered by the superior court of Sacramento county June 17, 1892, setting aside the election by reason of his ineligibility, and an-
Section 13 of the aforesaid act of 1872 (Stats. 1871-72, p. 246) authorized the board of trustees of the city to appoint a chief of police, “in case of a vacancy in the office,” and provided that the person so appointed should hold the position “until the next city election, at which time a chief of police shall be elected to fill the unexpired term.” If, therefore, there was a vacancy in the office on the 27th of June, 1892, the trustees were authorized to make the appointment, and the defendant thereafter was lawfully in the exercise of the duties of the office.
Mechem, in his treatise on Public Offices and Officers, says, section 126: “A vacancy exists when there is no person lawfully authorized to assume and exercise at present the duties of the office.” Section 996 of the Political Code declares that “an office becomes vacant on the happening of either of the following events before the expiration of the term. 10. The decision of a competent tribunal declaring void his election or appointment.”
The proceedings in the case of Drew v. Rodgers, supra, were had by virtue of the provisions of section 1111 of the Code of Civil Procedure,which authorizes the right of any person declar
The court erred in admitting in evidence the judgment-roll in the ease of Drew v. Rodgers, supra, and in bolding that the defendant was estopped thereby from proving that be bad been a citizen of the United States for more than ninety days prior to the election in March, 1892. the judgment was not between the parties to the present action, nor was it between the relator and the defendant. If the judgment in that action had been in favor of the defendant, the people would not have been precluded in the present action from.showing that be was not in fact a citizen at the date of the election, and there would be, therefore, no mutuality in the estoppel of the judgment. It would open the door to collusion to bold that any elector, by contesting the validity of an election, could bind the people by suffering a judgment in favor of its validity.
On the 1st of January, 1894, a new charter for the city of Sacramento went into effect, and as the trial of the present proceeding was not bad until after that date the defendant asked its dismissal upon the ground that the office involved herein, as well as its term, bad ceased to exist. the court rightly denied the motion. Under the statute governing the subject) if the relator should be found entitled to the office, be would be entitled to recover any damages which be might have sustained by reason of its usurpation by the defendant (Code Civ. Proc., sec. 807), and the prosecution of the proceeding is essential to determine whether be has a right to such damages. Where a proceeding of this nature is instituted during the term in which the usurpation is alleged to exist, the action does not abate merely by reason of a failure to bring it to a judgment before the expiration of such term. (See People v. Hartwell, 12 Mich. 508; 86 Am. Dec. 70; State v. Pierce, 35 Wis. 93; People v. Loomis, 8 Wend. 396; 24 Am. Dec. 33; Commonwealth v. Smith, 45 Pa. St. 59.)
The following is the opinion rendered in Department Two- on the 6th of November, 1896, referred to- by Mr. Justice McFarland:
Action for the usurpation of an office. It was commenced by the attorney-general as early as April 29, 1893, and brought to trial February 7, 1894. By its judgment the court declared that the relator, Drew, is entitled to the office of chief of police in the city of Sacramento, and has been so entitled since the 1st day of April, 1890; that defendant Rodgers usurps and intrudes into such office, and has wrongfully held the same and exercised its functions since April 1, 1893; that the relator be admitted and restored to such office, and that defendant be ousted and excluded therefrom.
Drew was elected to said office at the city election held in March, 1890, for the term commencing April 1st following, under a statute providing that he should hold "for the term of two years and until his successor is elected and qualified.” (Stats. 1871-2, p. 243.) The same act (p. 246) provided that in case of a vacancy in the office the board of trustees of the city might fill the same by appointment until the next city election, at which time a chief of police should be elected for the unexpired term.
At the city election in March, 1892, Rodgers received a majority of the votes cast for said office, and the proper canvassing board declared him elected thereto for the term next ensuing; but on June 17, 1892, in a proceeding to contest his right, instituted in the superior court under section 1111 of the Code of Civil Procedure, he was adjudged to be ineligible to the office by reason of alienage, and his election was annulled; he appealed, and the judgment was affirmed by this court in December, 1893. (Drew v. Rodgers, 34 Pac. Rep. 1081.) However, in April, 1892, he forcibly dispossessed the relator of said office, and thenceforward performed its duties; but the relator was at
The difficulty of Rodgers' alienage having been removed by his naturalization, the board of trustees of the city, on June 27, 1892, in form appointed him chief of police to hold until the next city election; this on the assumption that a vacancy existed in the office; and at the next election in March, 1893—not the regular time for electing to the office in question—he was again the person receiving the highest number of votes for said •office, and was declared elected accordingly. In' January, 1894, the new charter of the city of Sacramento went into operation; by its provisions the office of chief of police was created, but made appointive instead of elective, and it is conceded that the office of that name previously existing wa:s abolished. (Stats. 1893, pp. 588, 611.)
Appellant contends that by his formal election and qualification in March, 1892, a successor to the relator in' said office was elected and qualified within the meaning of the statute permitting the latter to hold over until the occurrence of that event and after the expiration of his prescribed term of two- years, and that thus such contingent right of the relator to- a prolongation of his term was cut off. We differ with appellant; ineligibility for an office means incapacity to be elected or otherwise chosen thereto; Rodgers was affected with such incapacity in March, 1892, and the votes cast for him were “ineffectual for the purpose of an election.” (Saunders v. Haynes, 13 Cal. 154; Dryden v. Swinburn, 20 W. Va. 137, and cases cited.) There being thus a failure to elect a successor to the relator, the contingency -arose upon which he had the right to an extension of his original term. It is claimed that the whole matter is. disposed of in appellant’s favor by the decision in People v. Ward, 107 Cal. 236; but in' that ease—in which the writer was- of counsel—the successor had been duly elected and had properly qualified, and the question presented differed widely from that involved here. It results that the alleged appointment of defendant to the office on June 27, 1892, was void because there was then no vacancy. (People v. Tilton, 37 Cal. 614; People v. Edwards, 93 Cal. 153.) And for the same reason the election of Rodgers for the unexpired term in March, 1893, was
The court rightly refused the offer of evidence at the trial that while defendant was yet a minor his mother was married to a citizen; the object being to show that he was really eligible for the office in March, 1892, although the precise matter had been put in issue in the previous case of Drew v. Rodgers, supra, and decided against him; the judgment-roll in' that action was in evidence at the trial of this. True the parties and the causes of action are not identical; and Drew, the contestant in that case, was a different person from the relator here; but that was a proceeding prosecuted for the purpose of trying the very question whether Rodgers election was not void because of his ineligibility (Code Civ. Proc., sec. 1111); it was a matter of public concern (Lord v. Dunster, 79 Cal. 477) involving the political and legal relations of the contestes, and we see no reason to doubt that the nullity of his election there determined was conclusive upon him in the present action. (Code Civ. Proc., see. 1908, subd. 1.)
It is further argued that the court should have dismissed the proceeding, or have granted a nonsuit, because by the new charter of the city the office in controversy had been abolished before the case came on for trial. Tinder the statute governing the subject, the removal of the usurper is not the sole object which is, or may be, accomplished by the proceeding; judgment may be rendered upon the right of the defendant and also upon the right of the party, if any, alleged to be entitled to the office; If against the defendant, he must, pay the costs, and, at the court’s discretion, a fine; it is also the foundation of a recovery by the rightful claimant of damages occasioned by the usurpation. (Code Civ. Proc., secs. 805, 807, 809.) When, as in this instance, the action has been brought during the usurpation, and such consequences may flow from the judgment, it ought not to be held that the action must abate merely because efflux of time, or other circumstance which does not toll the legal wrong of the intrusion, has put a period to the disputed term. And to this effect is the decided preponderance of authority. (People v. Hartwell, 12 Mich. 508; State v. Pierce, 35
The judgment is not in form appropriate to the state of the case at the time of trial—the office having been abolished; but it cannot lie corrected on this appeal, which is from an order denying a motion for a new trial only. There is no error in the record available to defendant, and the order appealed from should be affirmed.