159 P. 191 | Cal. Ct. App. | 1916
The purpose of this proceeding was to determine the title to the office of district attorney of San Diego County.
It appears from findings of the court as to which there is no controversy, that on June 22, 1915, D. V. Mahoney was the duly elected, qualified, and acting district attorney of San Diego County; that on said date he signed and delivered to C. H. Swallow, a member of the board of supervisors of said county, his resignation of the office of district attorney, a copy of which document is as follows:
"June 22, 1915.
"To the Honorable Board of Supervisors of the County of San Diego, State of California.
"Gentlemen:
"I hereby tender to your Honorable Body my resignation from the office of District Attorney of the County of San Diego, State of California, and ask that the same be accepted and take effect on the filing of this my resignation with the Clerk of the Board of Supervisors of the County of San Diego, State of California. D. V. MAHONEY,
"District Attorney of the County of San Diego, State of California." *426
That at about 7:30 o'clock P. M. on said June 22d, Swallow went to the home of B. Allen, who was a deputy county clerk and acting clerk of the board of supervisors, to whom he delivered said resignation so received by him from Mahoney, upon which said Allen at the time indorsed the words: "Filed June 22, 1915, J. T. Butler, Clerk, By B. Allen, Deputy." And on the following morning, June 23d, upon reaching the county clerk's office where she was employed as such deputy, she delivered the document to J. T. Butler, county clerk and ex-officio clerk of the board of supervisors who retained the same in his custody until June 28, 1915, at which time it was presented to a special meeting of the board of supervisors duly convened pursuant to a call therefor, notice of which as served stated that it was "for the purpose of considering and accepting the resignation of D. V. Mahoney as district attorney and, if accepted, appointing his successor"; at which time, all the members of the board being present, the resignation of Mahoney was accepted, and the respondent, Spencer M. Marsh, was elected to fill the vacancy. At this meeting of the board of supervisors so held on June 28th, and before the board had taken any action with regard to said resignation or the election of Marsh to fill the vacancy, Mahoney caused to be served on the board, and each member thereof, a written notice of revocation, stating therein that he withdrew and recalled the resignation theretofore tendered. In addition to these facts as to which, as stated, there was no controversy, the court upon conflicting evidence, ample in tendency, however, to support the same, found that the delivery of said resignation by Swallow to the clerk, and the filing thereof, was in obedience to the instructions of Mahoney given to Swallow when the document was delivered to him, and that at the time Mahoney was mentally competent and well knew the purport and effect of the same, and intended the resignation to go into effect according to the terms thereof. As a conclusion of law, the court found in effect that the resignation was duly made to the clerk of the board of supervisors of said county and became effective on June 23, 1915, by reason of which a vacancy existed in the office of district attorney of said county; that Spencer M. Marsh was duly elected to fill the vacancy on June 28, 1915, on which date he was and ever since has been entitled to said office by virtue of said election. *427
Judgment followed for the respondent, from which the relator appeals.
Appellant's chief contention is that the question presented must, under section 4468 of the Political Code, be determined by applying the common-law rule which denied the right of a public officer to resign his office without the consent of the appointing power manifested by an express acceptance of the resignation or in some other mode equally significant of its intention so to do (Mechem on Public Officers, sec. 414; Throop on Public Officers, sec. 409; Edwards v. United States,
Our conclusion is based not upon the authorities, concededly conflicting, bearing upon the question, but upon the fact, as declared in section 4 of the Civil Code, that "the code (sections 995 and 996, Political Code), establishes the law of this State respecting the subjects to which it relates, and its provisions are to be liberally construed with a view to effect its objects." Thus construed, we entertain no doubt that the provisions referred to gave appellant "the privilege of resignation as an absolute right, without any restrictions" (State v. Murphy,
According to our view of the case, it is unnecessary to further review and distinguish the authorities cited by the respective parties as bearing upon the proposition submitted. Necessarily they involve the statutes of the states in which the cases arose. *430
By its terms the resignation was to take effect upon being filed with the clerk. No express provision is made in the law providing that a letter of resignation shall be filed, but, like documents which are required to be filed, the delivery thereof to the clerk of the board of supervisors, he being the officer designated by section 995 of the Political Code to whom the resignation should be made, constituted the filing thereof. In practice the filing of a document, so far as concerns the act of the party, consists simply in placing the paper in the hands of the clerk to be preserved and kept by him in his official custody as an archive or record of which his office is the repository, subject to such use and reference thereto as the nature of the document contemplates. While it is usual for the clerk to indorse such document, giving the date of its delivery, such file-marks are but evidence of the fact of such delivery. In Tregambo v. Comanche M. and M. Co.,
Appellant cites section 879 of the Political Code, declaring that "Every officer must continue to discharge the duties of his office, although his term has expired, until his successor has qualified," and basing his argument thereon, insists there could be no vacancy, since under the provisions of this *431
section appellant was required to continue in office until his successor was qualified. As well suggested by the trial judge, "counsel's argument would lead to the conclusion that there could be no vacancy until a successor was appointed, and there could be no successor appointed until there was a vacancy." While there appears to be a conflict of authority as to whether such provision as that contained in section 879 is applicable in the case of a resignation of a public officer where, to complete the same, no acceptance thereof is required, the decisions of our own supreme court seem to justify the conclusion that the provision applies not only to one whose term has expired, but as well where the incumbency is ended by resignation; the continuance in office being regarded as temporary; or, as stated in People v. Ward,
For the reasons given, the judgment is affirmed.
Conrey, P. J., and James, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on July 10, 1916. *432