Treadwell v. Board of Supervisors

Sharpstein, J.: Application for a writ of mandamus to compel the Board of Supervisors of Yolo County to take steps preparatory to the holding of an election on the first Wednesday of September of this year, for the election of certain county officers, as provided in Section 4109 of the Political Code as it stood prior to March 7, 1881, when the Legislature attempted to amend it. The petitioner insists: 1. That the amendatory Act, if constitutional, does not dispense with the holding of an election this year for the officers enumerated in his petition; 2. That if it does, it is repugnant to that provision of the Constitution which prohibits the extension of the term of any officer “beyond the period for which he is elected or appointed." (Const., Art. xi., § 9.) The Act of March 7,1881, is entitled “An Act to amend Section 4109 of‘An Act to establish a Political Code,’ approved March 12, 1872, relating to the election and terms of office of county, city and county, and township officers, and to repeal Sections 4024, 4027, and 4111 of said Political Code.” By comparing this Act with that of which it purports to be amendatory, it will be seen that an attempt is made to completely revise Section 4109. As it originally stood, that [564] section provided for the holding of county elections on the same day that general elections were held, under the late Constitution. The present Constitution has changed the time of holding general elections from the first Wednesday of September to the first Tuesday after the first Monday of November. The intention of the Legislature to make a corresponding change in the Code in relation to the time of holding elections for county and township officers is sufficiently manifest in the amendment of March 7, 1881. The effect of such a revision upon the provisions of .the section revised is the point which we will first consider. In Murdock v. Memphis, 20 Wall. 617, the Court says: “We are of opinion that it was their (Congress’) intention to make a new law so far as the present law differed from the former, and that the new law, embracing all that was intended to be preserved of the old, omitting what was not so intended, became complete in itself and repealed all other law on the subject embraced within it. The authorities on this subject are clear and uniform.” (Citing United States v. Tynen, 11 Wall. 88; Henderson’s v. Tobacco, id. 652; Bartlet v. King, 12 Mass. 537; Commonwealth v. Cooley, 10 Pick. 36.) In this case the intention of the Legislature to revise in the later Act the entire subject-matter of the former one, appears more plainly than it did in any of the cases above cited. And whenever that intention clearly appears, the subsequent Act operates as a repeal of the former, although it contains no express words to that effect. An amendment of a statute will operate precisely as though the subject-matter of the amendment had been originally incorporated in the statute amended, as regards any action had after the amendment is made. (Holbrook v. Nichol, 36 Ill. 161.) It does not seem to us that under the authorities there can be any doubt as to the operation of the Act of March 7,1881. If constitutional, it completely superseded the section which it amended and revised. (State v. Andrews, 20 Tex. 230.) Its constitutionality is attacked on the ground that if it dispenses with the holding of an election of county officers this year, it in effect extends the terms of the present incumbents. It is not claimed that it expressly or directly attempts to do anything of the kind. But it is claimed that such [565] would be the necessary result, because the present incumbents are entitled to hold their respective offices until their successors are qualified. The Code so provides, but if that provision of the Code is repugnant to the Constitution, the Code must give way, and the result would be that all of these offices would become vacant at the expiration of the terms for which the incumbents were elected, and such vacancies would have to be filled in the manner prescribed by law. And if there be no mode provided by law for filling them, they must be filled in the mode provided by Section 8 of Article v. of the Constitution. If either Act is unconstitutional, it is the one which provides that officers shall hold after their terms have expired, and not the one which changes the time of holding the election. Application denied. Thornton, J., concurred.