People ex rel. Stratton v. Oulton, 28 Cal. 44

People ex rel. Stratton v. Oulton

28 Cal. 44 | Cal. | 1865

*51By the Court,

Shafter, J.

Stratton, the applicant in this proceeding, prays the Court that a peremptory writ of mandamus may be awarded, requiring Oulton, the State Controller, to issue his warrant on the Treasurer for the sum of one hundred dollars and eighty cents, due for the applicant’s salary as State Librarian, from the 17th to the 31st days of March, 1865.

Stratton was duly appointed State Librarian in March, 1861, and his term of office, assuming that he could under no circumstances hold it more than four years by virtue of that appointment, expired on the 16th of March, 1865.

At a meeting of the Board of Trustees, held on the 8th of March, 1865, for the purpose of electing a Librarian, three of the five Trustees named in the Act of 1864 and the successor of another Trustee named therein, were present. Two of the four, Winans and Harkness, voted for Stratton, and the other two, Governor Low and Redding, voted for Perkins.

Since the 16th of March, Stratton has had the custody of the library, and has performed all the duties connected with the office of State Librarian.

The applicant claims that he is Librarian de jure. He could do no less, for the salary annexed to a public office is incident to the title to the office and not to its occupation and exercise. (People ex rel. Dorsey v. Smyth, County Auditor, 28 Cal.21.) In aid of his alleged right to the office of Librarian, the applicant insists, first, that he was elected to the office at ,the meeting of the Trustees on the 8th of March—inasmuch as the vote of the Governor against him was a nullity, the Governor having, as is claimed, no power to cast a vote in view 'of the twelfth section of the Fifth Article of the Constitution; and if not so elected, then the applicant further insists, that he holds the office by title until his successor shall be duly elected and qualified. Both of these propositions are controverted by the respondent; and, for the purposes of this decision, the first of the two may be considered as' fallacious. This not only narrows the ground covered by the applicant in argument, but *52does away with thq objection stated by the respondent, that the validity of the vote cast by the Governor cannot be gone into in this proceeding. As thus disburdened, the case presents but a single question: Does the applicant hold over under his appointment in 1861 in the absence of a statute provision authorizing him to do so ?

In the case of Foot v. Prouse, Mayor of Truro, 1 Strange, 625, it appeared that the Mayor was to be chosen out of the Aldermen, who were themselves to be elected annually. The Aldermen present at and participating in the election of the plaintiff had been in office several years, and none of them had been re-elected within a year. On a bill of exceptions, the Court was of the opinion that the election of the plaintiff was void for want of an annual election of the Aldermen. But upon error in the Exchequer Chamber, and two solemn arguments, the judgment was reversed ; and it was held “ that the words ‘ to be annually elected ’ were only directory, and that an annual election of Aldermen was not necessary to make an election of Mayor in their presence good; and King, C. J., de C. B., who delivered the opinion of the Court, compared it to the case of a Constable and other annual officers who are good officers after the year is out and until another is elected and sworn. The reversal was affirmed in Parliament.”

In The Queen v. The Corporation of Dunham, 10 Mod. 146, it was considered that “ a Town Clerk, to be elected annually, would continue Town Clerk until the election of his successor.”

In the Anonymous Case, 12 Mod. 256, it is said “a Constable is not discharged until his successor is appointed and sworn in ; because the parish cannot be without an officer.”

It was held in McCall v. Byram Manufacturing Company, 6 Conn. 427, Mr. Chief Justice Hosmer delivering the opinion, “that the Secretary of a corporation appointed in January, 1823, for the ensuing year, and continuing to act as such after the year had expired, was, by virtue of the legal construction of his appointment, Secretary de jure.” That “it was a well settled principle that an annual officer continues until superseded by the appointment of another in his place. The time *53when such an appointment is to be made is considered as directory and not imperative.” It was admitted that “a statute or by-law, or even an appointment, might be so restrictive, by the expression or implication of a negative, as to terminate an annual office at the end of the year. But the election to an office for a year has never been considered of this description. Such are the appointments to town offices; but the persons appointed continue indefinitely until the incumbent’s place is supplied.”

In Spencer v. Champion, 9 Conn. 536, it appeared that the charter of a manufacturing company, under which the plaintiff claimed by levy of execution, provided that the affairs of the corporation should be managed by a Board of Directors who should hold their offices for one year and should be annually elected. The question was whether Directors, elected under the charter, could hold over de jure; and it was held that “an annual officer, there being no restrictive provision in his appointment, holds his office until the appointment of another in his place.”

In Bethany v. Sperry, 10 Conn. 200, the whole subject was learnedly reviewed on principle and authority, and the doctrine of the above cases was reaffirmed. In People v. Runkle, 9 John. 148, the Court acquiesced in the English decisions cited, as correct expositions of the rule of the common law; and that conclusion received the sanction of Chancellor Kent in Slee v. Bloom, 5 J. Ch. 377. And in his Commentaries (Vol. 2, p. 295), the learned author, giving his conclusions as a jurist, considers “ the sounder and better doctrine to be, that where the members of a corporation are to be annually elected, the words are only directory, and do not take away the power incident to the corporation to elect afterwards.” And it was held in Wier v. Bush, 4 Litt. 434, that the words would be regarded as directory, unless the implication was displaced by “negative expressions.”

The Attorney-General cites The People ex rel. Morton v. Tieman, 30 Barb. 193, as being opposed to these decisions. But the point now in question did not arise in that case; for it *54appeared that the Act under which the relator was appointed City Inspector had been repealed, and therefore it was unnecessary to inquire whether the relator would have held over or not if the Act had not been repealed. The opinion, in so far as it bears upon the question, is obiter dictum, and cannot be considered as reversing the rule in New York as established by The People v. Runkle and Slee v. Bloom. It is suggested in the opinion in 30 Barbour that the instances in which officers have been held to hold overby right until the appointment and induction of their successors, have been limited to officers and agents of private corporations or to subordinate agents and officers of municipal corporatipns. But inasmuch as Morton was a subordinate officer of a municipal corporatian, and inasmuch as the Court, or, rather, the Judge who wrote the opinion, held, nevertheless, that he would not have held over on any known principle of common law in the event the Act creating the office of Inspector'had been on foot, it follows that the cases, both at home and abroad, establishing the contrary to be the rule, were not considered as correct expositions of the common law. But those decisions nowhere limit the operation of the rule to the subordinate or inferior officers of municipal corporations; .and it is conceived that a distinction that should make the operation of the rule to depend upon official grade could be referred to no intelligible principle. The case cited from the 12th Mod. illustrates the ground of the rule. (A Constable holds over, not for the reason that he is a subordinate 'officer, but “ because a parish cannot be without an officer.”) By this it is not meant that a parish when it loses its Constable ceases to be a .parish, for that is not true, as matter of law (5 Com. Dig. 180); but that a parish without a Constable would fail in one of the ends to which it is appointed. The ground.of the rule then is public necessity; and if the public welfare would be endangered if subordinate officers in a municipal corporation could not hold over until their successors were appointed and qualified, a fortior'i, would it be endangered if the chief officers were to be *55considered as out of office by limitation, before others were, appointed to whom they could safely resign their trusts.

Officers of public corporations are themselves as public as the corpordtions to which they belong. Such corporations and all official positions in them, are created either directly or indirectly by the Government, and for public political purposes only. To say that a man is an officer of a public corporation is to say that he is a public officer in the largest sense. He may be limited in the exercise of his powers to a particular locality, but his position and powers are, in the matter of essential quality, as public as those of an officer of the highest station. And, therefore, should it be considered that the distinction stated in People v. Tieman, for the first time; was well taken, it may well be insisted that Stratton, as Librarian, is a “ subordinate officer,” or rather a mere 'ministerial agent of a-public corporation of largest magnitude, charged, as such, with the custody and care of corporate property. Such, then, being the Librarian’s character and relations, he holds over under the limitations put upon the common law rule in the case cited for the respondent; and, in addition to that, it is perfectly manifest that the office of State Librarian is within the principle upon which the rule of the common law proceeds.

If Stratton is not now in custody of the library by right, to whom does its custody rightfully belong? If he is not “ bound to be constant in attendance upon the library during the hours' it shall be directed to be kept open” (Act 1861, p. 46, Sec. 9), upon whom does that obligation rest? Who, if not he, is bound to act “ as Secretary of the Board of Trustees and to keep a correct record of its proceedings ? ” Who, if not he, “ is responsible for the safe-keeping of the- books ? ” Section fourteen requires “ that the library shall be kept open every day of the year, Sundays excepted, during such hours as the Trustees may direct.” Who is at once authorized and bound to fulfil this command if Stratton is not ? If he is a naked usurper, as is contended, then he does not rightfully control the approaches to the library—and if he enters it as *56Librarian it is only by usurpation of that character. If he holds the key lawfully, it is merely as “dejDositary, having no powers and no duties with respect to it, except to keep it safely in his own possession until called upon by the Trustees or his successor to surrender it. On this view of the law we have not only a library without a Librarian, but a library suspended as to all the uses for which it was established; and not only are citizens barred of lawful access to it during the alleged interregnum, but the Governor also, and every officer of the Executive Department, and the Justices of the Supreme Court. All of which, in effect, comes to this: that the State has lost the right to use its own books die in diem, while the present condition of things shall continue to subsist.

The rule of the common law, as settled by the cases cited, conserves the public good by conserving the methods and instrumentalities by which alone public business can be transacted ; while the opposite rule, when pushed to its consequences, might result in a suspension of business in every department of the public service. We do not decide, nor would we be understood as holding, that the rule of the common law would extend to members of the Legislature, or to judicial officers, or to the Executive. They may be without the mischiefs which the rule was intended to forestall. But as to the State Librarian, and other civil functionaries like him, the sum of whose duties consists in the safe keeping and current management of public property committed to their custody, they, in our judgment, are broadly within the rule and its reason. If Aldermen, whose duties are legislative in the main, are within it, a mere custodian-and manager of a public library must be.

It is urged in the learned argument filed by the Attorney-General that, inasmuch as the Act of 1863, “ concerning offices ” (Acts of 1863, p. 386,) provides that certain officers, some of whom hold by constitutional and others by statute tenure, shall hold until their successors are elected and qualified; and inasmuch as the Act creating the office of State *57Librarian contains no such provision, the common law rule is constructively negatived as tp him.

The Acts are not in pari materia. The subject matter of the Act of 1863 is confined to the offices and officers therein named, and the subject matter of the Act of Í861 is made up of other and distinct offices and officers. If the office of Librarian and its tenure, had been included in the Act of 1863 as a portion of its subject matter, and a holding over in the matter of that office had been omitted, the maxim expressum facit cessare taciturn might have applied. But as between two detached and independent statutes without a common subject matter in any exact sense, the maxim has no application. The question, then, comes to this: Did the Legislature in passing the Act of 1861 negate the rule of the common law by omitting to restate it? Certainly not in the judgment of the tribunals by which the cases previously cited were determined, otherwise the very point decided could not have arisen. But the question was directly presented in Bethany v. Sperry, 10 Conn. 206, already cited, and it was held that the fact that it was expressly provided that the society clerks should hold over, while the Act was silent in that particular as to the other society officers did not necessarily argue that a holding over by them was intended to be forbidden. (Smith’s Com. 655.) There the legislation as to the clerk and the other society officers was not only in the same Act but in one and the same section.

We consider the constitutional provision that the Governor, Lieutenant-Governor, Secretary of State, Attorney-General, and Surveyor-General, shall hold their offices until their successors are respectively elected and qualified, as a most impressive recognition of the policy upon which the rule of the common law proceeds; and the Legislature has given the largest countenance to it, by the Act of 1863, and by other Acts relating to civil officers.

Reference is made, on behalf of respondent, to Miller v. The Board of Supervisors of Sacramento County, 25 Cal., and People *58ex rel. Dorsey v. Smyth, 28 Cal.21. Neither of those decisions, as we conceive, bears upon any point raised in this proceeding.

The writ moved for is awarded.

Mr. Chief Justice Sanderson expressed no opinion.