People ex rel. Westbrook v. Rosborough

Baldwin, J. delivered the following opinion: This proceeding of quo warranto was brought to determine the title of the defendant to the office of Judge of the County Court of Siskiyou. The county was organized by Act of Legislature, passed March '22, 1852. By this Act, an election was directed to be held for 'County Offices onLhe first Monday of May of the same year, at which election were to be chosen one County Judge, one District Attorney, one County Clerk, one Sheriff, etc. The 15th Section .provides that the County Judge chosen under this Act shall hold his office for two years; the other officers elected shall hold their respective offices for two years, and until their successors .are elected and qualified. “ The successors of the officers elected ■under this Act shall be chosen at the general election established! ■by law, which takes place next preceding the expiration of theirl ^respective terms.” I [187] At the election in May, 1852, W. A. Robertson was chosen Judge of the county. He held the office until April, 1853, when he resigned. Westbrook, the relator, was then appointed and commissioned by the Governor. At the general election of that year, the relator was returned as elected. But the Governor failed to make proclamation of the fact that the vacancy in this office was to bo filled at this election. At the general election in September, 1855, the Respondent was voted for, and received a majority of votes cast for the office, and was returned as elected. In May, 1856, Westbrook, who had been in the possession of the office from the time of his appointment bj^ the Governor, resigned, and Respondent claiming by virtue of his election in 1855, qualified and took possession of it. At the general election of September, 1857, Westbrook again was returned as elected, and now claims as against Rosborough, who, since May, 1856, has been in the exorcise of the office. We hold, in The People ex rel. Templeton v. Fox, at the October Term, that the Constitution fixes the period of tenure of a Judge of the county, to wit: at four years; and that the Legislature may prescribe the period of commencement of the term, as also the time of the election. The Act of the Legislature organizing the county of Siskiyou, therefore, was void in that part of it which limited the period to two years’ tenure; but this does not hurt that part which was constitutional, and the election held under that Act vested the title to the office in the incumbent for four years. Before that time he resigned. This left the office vacant. The Governor, might fill the vacancy, but the appointee would only hold, by virtue of the appointment, until the next general election, or, at most, until the qualification of the person to be then chosen by the people. But as the election for this vacancy was a special election, as wo hold in People v. Porter, People ex rel. McKune v. Weller, and People v. Martin, the Governor’s proclamation was an essential condition to its validity. Ho such proclamation was made. It is true, the proclamation called the attention of the County Judges to the 3d Section of an Act “to regulate elections,” etc. from which it will be seen that all vacancies which are about to occur in office by the expiration of the full term thereof, shall be supplied at the general election. But [188] this was not a vacancy about to occur, but a vacancy which had occurred by the resignation of the incumbent, in advance of the period mentioned in the Act referred to. This memorandum has no application to this case; besides, it gave notice of no fact. The County Judge could not, by his notice, supply this defect in the Executive proclamation. The appointee of the Governor, Westbrook, held as Judge defacto or de jure, it is not material which, until he resigned. He derived no new title from his election in 1853. As there could be no election, except a special election to fill this office, until September, 1855, and as a special election cannot be held without proclamation—which was never made—it follows that the people had no opportunity to fill this office from the first election, in May, 1852, until September, 1855. The full term of four years from May, 1852, would expire, of course, in 1856; and the Act already cited, provides (Wood’s Digest, 375, Sec. 4) that all vacancies which are about to occur in office by the expiration of the full term thereof, shall be supplied at the general election—meaning the general election next preceding the end of the term. We must regard the office, then, as if no new term had been created in it, the Governor’s appointment being temporary; and there being no election by the people, which alone could confer upon an incumbent a title to a full term, the election of 1855 was the-period designated in the Act of 1850 for the election. This would be a general election, as contradistinguished from a special election, and no proclamation is necessary in such cases to give validity to it. It follows that the Respon-. dent is, upon the agreed facts, entitled to the office. We see no injurious consequences likely to happen .from this decision, as the acts of judicial officers in office under the color of authority, are as binding and effectual, so far as third persons are concerned, as those of officers entitled to hold office by strict law. Judgment affirmed.