People ex rel. McDonald v. Bush

40 Cal. 344 | Cal. | 1870

Rhodes, C. J.,

delivered tbe opinion of tbe Court, Crockett, J., and Temple, J., concurring:

It appears that proceedings were instituted in tbe District Court for Los Angeles County, against three of tbe Supervisors of San -Diego County, for tbe purpose of removing tbem from office, under tbe provisions of tbe Act of March 14, 1853. (Stats. 1853, p. 40. and Hit. Dig., Section 4,778.) Tbe second section of tbe Act is as follows: “If any person now bolding, or wbo shall hereafter bold, any office in this State, wbo shall refuse or n«glect to perform any official act, in manner and form as now prescribed, or as may hereafter be prescribed by law, shall in like manner be deprived of office.” Tbe District Court rendered judgment removing tbe Supervisors from office; and notice of tbe judgment having been served on tbe County Judge of San Diego County, be made an order appointing three persons to fill tbe vacancies in office occasioned by tbe judgment. He did not act by virtue of any authority conferred on him by tbe Act above mentioned, for that Act confers tbe power of appointment, in case of such removal from office, upon tbe Governor; but be claims to have acted under tbe provisions of Section 45 of tbe Revenue Act of 1857. Tbe relator states tbe election and qualification of himself and tbe other Supervisors wbo were removed from office, and tbe order of tbe County Judge appointing tbe persons therein named, in tbe place of those wbo were removed from office; and alleges that those' persons have respectively taken upon themselves tbe duties of tbe office of Supervisor, etc., and prays that “ tbe interests of tbe people of California may be protected herein; that a writ of certiorari and mandamus may issue;” that tbe proceedings of tbe County Judge may be reviewed and declared void, and that the appointees ma}’be ordered to desist from all further proceedings as Supervisors. A writ of certiorari was issued to tbe County Judge, and tbe County Clerk has returned tbe order appointing tbe persons therein named as Supervisors, in place of those who were removed by tbe District Court for Los Angeles County, but does not certify that tbe order is a full and complete transcript of the record in bis office, in tbe matter of tbe appointment of such persons as Supervisors.

However desirable it may be that tbe action of tbe County Judge should be reviewed, and that tbe question of bis authority in the matter should be determined, there are several valid objections to the proceedings in this case, which will preclude the examination of that question. Only one objection will be noticed. The officer or tribunal to whom the writ of certiorari is issued, must be an inferior officer or tribunal, exercising judicial functions, and the proceeding to be brought up for review must be a judicial proceeding. The appointment of the Supervisors is, in its nature, a ministerial and not a judicial act. Its nature is not dependent on the quality or character of other acts which may be performed by the officer, who makes the appointment. The writ does not extend to a mere ministerial act or proceeding, though performed by a judicial officer. A judicial officer may be required by law to discharge other than judicial duties. He may, by authority of law, perform ministerial acts (People v. Pvovines, 34 Cal. 520), but when performed, they do not become judicial acts, because they were performed by a judicial officer. This becomes apparent on a moment’s consideration. A County Judge is authorized among other things to take the acknowledgment of a deed, and to solemnize a marriage. No one will contend, that in performing those acts he exercises judicial functions. If the writ in this case can be maintained, on the ground that the order sought to be reviewed was made by a County Judge, then upon the same ground this Court may, upon the writ of certiorari, cancel an acknowledgment of a deed, or annul a marriage.

Writ-dismissed.

Spbague, J., and Wallaoe, J., expressed no opinion.