People ex rel. Attorney General v. Martin

12 Cal. 409

• Court: California Supreme Court
• Decided: January 15, 1859
• Status: Published

Opinion

Baldwin, J.,

delivered the opinion of the Court—Tbeet, C. J., concurring.

This question has been, in effect, decided in the cases of People v. Porter, 6 Cal. 26, and People ex rel. McKune v. Weller, 11 Cal. Rep. 49. Some plausibility is given to the appellant’s argument that this is a county office, and that by the Act of 1855, (Sessions Acts, p. 160) the Board of Supervisors has power to order an election to fill a vacancy in the office ; but the whole legislation on this subject contradicts this idea. The terms of the Act of 1855 are, it is true, general, but they must be construed in connection with and as a part of the body of the legislation upon the general subject. The Act of 1855'is an amendment of the Act of 1850, (C. L. 775) which gave to the County Judge this power, in the same words as the Act of 1855 gives it to the Supervisors ; but this first Act evidently did not mean to apply to the office of County Judge, of course, and the amendment was only made to throw the same duty imposed on the Judge, upon the Board—because of the objection that the Judge could only discharge judicial functions. Other Acts show that the County Judge was not considered a county officer, in the sense of the Act of 1850 or 1855; he is to tender his resignation, when he resigns, to the Governor ; in case of vacancy, the County Clerk is to certify it to the Governor, who is to appoint; the Governor is to issue a commission, which fills the office until the next general election; and the Act (C. L. 774) requires the Governor “ to give notice of the offices to be filled.” As the law requires the notification to be made to the Governor of the vacancies in this office, and the Governor has the power of appointment under this general law requiring his proclamation for a special election in such cases, we do not feel authorized to overthrow the express decision made in the case of People v. Porter, Avhich declares the Governor’s proclamation in such a case a condition precedent to the validity of the election.

The judgment is affirmed.