104 Cal. 232 | Cal. | 1894
This is an agreed case by which the question is submitted to the court whether at the approaching general election a judge of the superior court of the county of Madera is to be chosen by popular vote. In form the proceeding is a petition for a writ of mandate to the governor commanding him to include in his forthcoming election proclamation a call for the election of said judge.
No question is raised as to the power of the court to issue its mandate to the head of the executive department of the state government, but, on the contrary, it is conceded that if the question stated is answered in the affirmative the writ shall issue.
The county of Madera was created by an act of the legislature approved March 11, 1893 (Stats., 1893, p. 168), out of territory theretofore included in the county of Fresno. The act provided, among other things, for the appointment of a board of commissioners to call, conduct, and verify the results of a special election of the officers necessary to complete the organization of the county. Among the officers to be so chosen, a judge of the superior court was expressly included. ■ In pursuance of these provisions a special election was held in said county on the 16th of May, 1893, and on the 20th of the same month said board of commissioners declared the county to be duly organized. Among other officers chosen at said special election the Hon. W. M. Conley was elected to the office of judge of the superior court, and on the twenty-third day of May he received from the governor a commission empowering him to hold said office “for the term provided by law.” The question to be decided here is, When does that term expire? or, in other words, When does a regular term of the office, to be filled by choice of the electors at a regu- ■ lar election, commence?
By section 14 of the act creating the county it is provided that: “The judge of the superior court chosen under this act shall hold his office until the first Monday in January, eighteen hundred and ninety-seven, and
We think this contention must be sustained. The legislature has the undoubted power to create new counties, and when a ■ new county is created the office of superior judge of such county necessarily springs into existence. (Const., art. VI, sec. 6.) Additional judges may also be provided for in the old counties. (Art. VI, sec. 9.) Whenever one of these new offices is created there is, of course, a necessity that it should be provisionally filled in some manner until the commencement of a regular constitutional term, and if the constitution is silent upon this point, the power of the legislature to make such provisional arrangement by statute cannot be questioned. But if the constitution has fixed the commencement of the first regular term of such newly created office the legislature has no power to fill the office for a term extending beyond the date so fixed.
We think the constitution has prescribed a rule which applies not only to the counties in existence at the date of its adoption, and to the office of superior judge therein, but to all counties organized thereafter, and to all additional judgeships, however created.
“There shall be in each of the organized comities and cities and counties of the state a superior court, for each of which at least one judge shall be elected by the quali
It might, perhaps, have been plausibly argued when this question was a new one, that the regular terms of all newly created judgeships should correspond with those established by the constitution for the old counties, viz: that they should commence in 1885, 1891, 1897, and so on; but when the legislature was first called upon to give its construction to the constitution it rejected this view in favor of the one first above stated. By the act providing for an additional judge in San Bernardino county (Stats. 1887, p. 19), it recognized the first Monday in January, 1889, as the commencement of the first regular term of the office, and the validity of the act was sustained by this court in People v. Waterman, 86 Cal. 28. In all subsequent acts providing for additional judges in the older counties the same rule has been followed. (San Diego, Stats. 1889, p. 5; San Luis Obispo, Stats. 1889, p. 6; Los Angeles, Stats. 1889, p. 130; Tulare, Stats. 1891, p. 61; Alameda, Stats. 1893, p. 3.) As to the first three of these acts (of 1889), they of course fit either view as to the commencement of the regular terms, but the last two and the act of 1887 fit only the view which we have approved. In organiz
Upon these considerations, and upon what we deem the soundest construction of the constitution, we hold in accordance with the view which has generally found favor with the legislature, that a superior judge should be chosen in Madera county at the approaching regular' election for a full constitutional term. Nothing decided in People v. Waterman, 86 Cal. 27, is in conflict with this view, and when the language of the opinion is considered with reference to the fact that the election there referred to was a general state election it will be seen that it does not apply to this case.
Let the peremptory writ issue.
