23 Cal. 314 | Cal. | 1863
delivered the opinion of the Court—Cope, C. J. and Norton, J. concurring.
This is one of numerous cases arising out of the attempted sale in 1853, by the municipal authorities of the City of San Francisco,
It is urged that in those cases it appeared to be an admitted fact that Hyde had been regularly elected a member of the Board, and that a few days before the passage of Ordinance 481, his place became vacant by voluntary resignation. It is claimed that the record in this case shows that he was not thus elected, because he was an alien, and not therefore eligible to the office; that the Board for that year consisted of seven members only, instead of eight, and therefore four constituted a “ majority of all the members elected.”
It is not disputed that an election was duly held in the City of San Francisco in September, 1853; that Hyde was one of the candidates at that election; that he received a majority of all the votes cast for Assistant Alderman of the First Ward at such election; that he received a proper certificate of his election; that he took the required oath of office, and was duly installed into the office; that he was declared duly elected by the proper officers, and took his seat with the other members of the board, and acted as such from the time of his election to the date of his resignation, which was a few days before the passage of the ordinance in question. There is no question that the other seven members of the board were duly elected, and that they were eligible to the office. These facts show that there were eight “ members elected,” within the intent and meaning of the charter; and we hold that the number of “ members elected ” was not reduced from eight to seven by the mere fact that Hyde was not eligible to the office by reason of his alienage. The charter provides that each board should “judge of the qualifications of election of its own members.” The board having declared him duly elected, his eligibility was so far determined by the body in which the power was vested by law, as that he became a member of the board, with the right to exercise the same powers and perform the same duties as other members, at least until his right to hold and retain the office had been duly adjudicated in a proper judicial proceeding instituted for that purpose. While he held the office he was an officer de facto, and his acts as such officer were entitled to credit accordingly.
In this case, the board to which Hyde was elected had the power, to determine this question, and they are to be considered as having decided it wjien they declared him duly elected; but their action was not final. His right to take and hold the office might have been contested under the proceedings authorized by the election law, or by a writ of quo warranto. But the validity of the election, or his right to take and hold the office, cannot be inquired in^o in a collateral action or proceeding like the present. (Turner v. Maloney, 13 Cal. 621; People v. Olds, 3 Id. 174, 175 ; People v. Collins, 7 J. R. 549; Wilcox v. Smith, 5 Wend. 231; Hall v. Luther, 13 Id. 491; Shore v. Scott River Water Company, 17 Cal. 626.)
The case of Searcy v. Grow (15 Cal. 121), referred to by the appellant, does not conflict with this principle, as that was a proceeding under the election law contesting the election of the defendant, and was therefore a proceeding directly against the person claiming the office, to prevent him from taking or holding it. In the case of Turner v. Maloney (13 Cal. 62), it was directly held, that the question of eligibility of an officer could not be tried in a collateral proceeding. In that case it was an application for a mandamus to compel the Controller of State to draw his warrant for the plaintiff’s salary as District Judge. It was opposed, on the
But if we are mistaken in our views of this question, we would not feel justified in overturning the previous decisions of this Court construing this clause of the charter. To do so, would clearly violate the rule of stare decisis. Under these circumstances it is not necessary to inquire whether that construction is correct or not.
The judgment is affirmed.