Bledsoe v. Colgan

GAROUTTE, J. This is an original proceeding for mandate brought against the state controller, asking that he be ordered to draw his warrant in favor of Benjamin P. Bledsoe for salary as judge of the superior court in and for the county of San Bernardino. The facts are these:— Bledsoe and Bennett were opposing candidates for the office of judge of the superior court of San Bernardino County at a general election. The result of the canvass of the election returns was declared to be a tie vote by the board of supervisors, and it was also declared that no person was elected to the office. Thereafter, upon April 15, 1901, Bledsoe began an action in the superior court in the nature of quo warranto to contest the right of John L. Campbell to hold the office of judge of the superior court of the aforesaid county, asking that he be ousted from the office, and that this petitioner, Bledsoe, be declared to have title to the office. Campbell, the incumbent, claimed the right to the office after the expiration *35 of Ms term until Ms successor was duly elected and qualified. Bennett appeared in the litigation by intervention. The trial resulted in a judgment that Bledsoe had been duly elected to the office, and should take possession thereof upon qualifying and taking the oath, and that Campbell should be ousted therefrom. Subsequently Bledsoe qualified, took possession of the office, and has continuously performed the duties thereof until the present time. Campbell and Bennett have appealed from the aforesaid judgment, and on that appeal the judgment has been affirmed. Under the foregoing state of facts is petitioner, Bledsoe, entitled to his salary pending the' appeal? The solution of this question is dependent alone upon the construction to be given section 936 of the Political Code, which section is .as follows: “When the title of the incumbent of any office in this 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; provided, hoivever, that this section shall not be construed to apply to any party to a contest or proceeding now pending or hereafter instituted who holds the certificate of election or commission of office and discharges the duties of the office; and such party shall receive the salary of such office the same as if no such contest or proceeding was pending.” For many years this section stood upon the statute-books as quoted, down to the word “provided.” The proviso here found was incorporated in the section by the state legislature of 1891. Prior to 1891, when litigation arose contesting the title to an office, no salary could be paid to the incumbent of the office until that litigation was finally determined. But the legislature, recognizing the extreme harshness of this rule, made the exceptions found in the aforesaid proviso; and the question is now presented,» Does this petitioner bring himself within those exceptions? In other words, is he a party “who holds the certificate of election or commission of office”? If he be such a party, then, by virtue of the statute, he is entitled to receive the salary of the office. There is no claim made by petitioner that he holds a certificate of election, but he does claim that he holds a commission of office, and that commission of office he asserts to be the judgment rendered by the trial court in his favor. This court *36 cannot bring itself to agree with this contention. A judgment in his favor is not “a commission of office,’’ as that phrase is here used. The use of the verb ‘' holds ” in the statute indicates that something tangible is meant to be held—that some paper, some evidence of title to office, must be in the possession of the incumbent of the office. As a general rule, title to office is evidenced in two ways,—namely, by a certificate of election, or by a commission,—and the court is convinced that the legislature had in mind these two ways of evidencing title to office when it used the language found in the aforesaid proviso of the section. Section 891 of the Political Code declares: “The governor must commission: 1. All officers elected by the people whose commissions are not otherwise provided for; 2. All officers elected by the legislature; 3. All officers of the militia; 4. All officers appointed by the governor, or by the governor with the advice and consent of the senate; 5. United States senators.” Section 893 declares: “The commissions of all other officers, where no special provision is made by law, must be signed by the presiding officer of the body, or by the person making the appointment. ’ ’ And section 1291 declares: ‘ ‘ Upon receipt of such copy, the governor must issue commissions to the persons who from it appear to have received the highest number of votes for offices, except that of governor or lieutenant-governor, to be filled at such election.” When the statute says the governor must commission certain officers it means he must issue to them commissions, and when he issues to either elected or appointed officers commissions, then those officers hold commissions of office. It is these commissions of office that the statute refers to in the aforesaid proviso of section 936. Bouvier declares the commission of a public officer to be: “Letters patent granted by the government under the public seal to a person appointed to an office, giving him authority to perform the duties of his office.” And this is the kind of “commission of office” referred to in the statute. The judgment of a judicial tribunal, whether that judgment be final or otherwise, does not come within the proviso of the statute. Legislation is needed to bring a judgment within that proviso. In conclusion, it may be suggested that as the judgment in the election contest case heretofore cited has become final in *37 favor of the petitioner, it follows that he will be entitled to his salary for his full term as judge de jure. For the foregoing reasons the application for the writ is denied. McFarland, J., Harrison, J., and Van Dyke, J., concurred in the judgment.