82 P. 421 | Cal. | 1905
This is a proceeding instituted in this court to obtain the issuance of a writ of mandate requiring the defendant, as auditor of El Dorado County, to draw his warrant for the salary of plaintiff, Wilson, as superintendent of schools of said county, for the month of July, 1905. Plaintiff has been holding said office ever since January, 1903, and discharging the duties thereof, under a certificate of election issued in pursuance of a declaration that he had been duly elected to said office, made by the board of supervisors of said county on their canvass of the returns of the general election of November 4, 1902. A contest of his right to said office was regularly instituted, under the provisions of title 2 of part 3 of the Code of Civil Procedure, relating to the contesting of certain elections (sections 1111-1127), by one T.E. McCarthy, who had been a candidate for the same office at said election. Upon the first trial of said contest judgment was entered confirming the election of plaintiff; but upon appeal to this court such judgment was reversed and the cause remanded for further proceedings. (McCarthy v. Wilson (Cal.), 80 P. 78.) A new trial of the contest *15 was thereupon had in the superior court, resulting in a judgment, entered June 12, 1905, annulling and setting aside the election of plaintiff herein, and declaring the contestant, McCarthy, to have been duly elected at said election. On June 17, 1905, notice of the entry of said judgment was served on the plaintiff herein. No appeal was taken by plaintiff herein from said judgment within ten days after the entry of said judgment, or within ten days after the service on him of the notice of entry thereof; but on June 29, 1905, he served and filed his notice of appeal from said judgment, and on July 1, 1905, he filed his undertaking on appeal.
The claim of defendant is, that by reason of the failure of plaintiff to take an appeal from the judgment annulling and setting aside his election within ten days from the service of notice of the entry of said judgment upon him, the certificate of election theretofore issued to him became void and the office vacant, and that consequently he is not now entitled to any salary for the month of July, 1905. This claim is based upon section 1127 of the Code of Civil Procedure, which is as follows, viz.: "Whenever an election is annulled or set aside by the judgment of the superior court, and no appeal has been taken within ten days thereafter, the commission, if any has issued, is void, and the office vacant." We think that there can be no doubt that, under the plain terms of this statute, its effect is to render a judgment of the superior court annulling and setting aside an election, in a proceeding brought under the provisions of title 2 of part 3 of the Code of Civil Procedure, final upon the question as to the validity of any commission or certificate of election that may have been issued to the incumbent whose election has thereby been set aside, unless an appeal be taken from such judgment within ten days from the entry thereof; in other words, that such judgment, after the lapse of ten days without appeal taken therefrom, finally renders such certificate ineffectual as evidence of title to the office. There can be no question that the word "commission," as used in this section, includes a "certificate of election" issued by the clerk of a county upon the declaration of election made by the board of supervisors thereof, sitting as a canvassing board. There is no material difference, in effect, between a "commission" and a "certificate of election." They both simply constitute official *16
notice of election or appointment to the person named therein.(People v. Perkins,
The only question involved in this proceeding being the *17
question as to whether plaintiff is now entitled to the salary claimed, it is unnecessary, in view of other provisions of the law, to determine further as to the effect of this section. It being determined that his certificate of election to such office has been finally annulled and is void, it follows, under section 936 of the Political Code, that if his subsequent appeal, taken after the expiration of the ten days, is effectual for any purpose, and the contest may therefore be held to be still pending, no warrant can be drawn for any part of his salary until the contest has been finally determined. That section in effect provides that when the title of the incumbent of any office in the state is contested by proceedings instituted in any court for that purpose, no warrant can thereafter be drawn or paid for any part of his salary until such proceedings have been finally determined, except in the single case of one "who holds the certificate of election or commission of office, and discharges the duties of the office," who shall receive the salary of the office "the same as if no such contest or proceeding was pending." To entitle him to salary during the pendency of a contest involving his title to the office, the incumbent must bring himself within this exception to the general rule declared by the section; in other words, he must not only be the incumbent discharging the duties of the office, but he must also hold the certificate of election or commission of office. (Bledsoe v.Colgan,
It has been suggested that the effect of section 1127 of the Code of Civil Procedure is to make a judgment of a superior court annulling and setting aside an election in a *18
proceeding of this character final for all purposes unless an appeal be taken within ten days. As to this, however, as already stated, it is unnecessary to express an opinion here. Of the effect of the judgment in this case upon the certificate of election or commission of office, and consequently upon the right of the incumbent to salary, we have no doubt, and that is sufficient for all the purposes of this proceeding. The case ofWilson v. Fisher,
The alternative writ heretofore issued must be discharged and the proceeding dismissed, and it is so ordered.
Beatty, C.J., McFarland, J., Shaw, J., Henshaw, J., Lorigan, J., and Van Dyke, J., concurred.
