People v. Parker

37 Cal. 639, 1869 Cal. LEXIS 101

• Court: California Supreme Court
• Decided: July 1, 1869
• Status: Published

Opinions

By the Court, Sanderson, J.:

This is an action brought under the provisions of the Fifth Chapter of the Practice Act to determine the right of the relator and the defendant to the office of Director of the Insane Asylum. The complaint shows that, by an Act of the Legislature of the 31st of March, 1866, (Stats. 1865-6, p. 513,) E. S. Holden and six other persons were constituted a Board of Directors of the Insane Asylum. That, by the terms of that Act, Holden’s term of office was fixed at two years, commencing from the date of the passage of the Act, to wit: the 31st of March, 1866. That Holden resigned on the 8th day of February, 1867, thereby causing a vacancy, which, in accordance with the provisions of the statute, was filled by the other members of the Board, by the appointment of the defendant, ivhich appointment, as claimed by the relator, expired, by the terms of the statute, at the commencement of the next session of the Legislature, to wit: the first Monday in December, 1867, at which session it became the duty of the Legislature to fill the remainder of the vacancy for the unexpired term of Holden. That the Legislature adjourned on the 30th of March, 1868, having failed to fill the remainder of the vacancy for the unexpired term of Holden, and also to elect his successor for the full term, commencing on the 31st of March, 1868. That on the 16th of June, 1868, the relator was appointed and commissioned by the Governor to the office of Director, vice the defendant, whose term, as alleged, had expired. That possession of the office was subsequently demanded and refused.

The defendant demurred upon the general ground that the complaint did not state facts sufficient to constitute a cause of action. The Court below sustained the demurrer, and final judgment passed for the defendant, from which the plaintiff has appealed.

Two questions are presented in argument: first,,was there a vacancy in the office at the time the relator was appointed and commissioned by the Governor ? and second, if so, was the Governor entitled to fill it by virtue of the eighth section of the Fifth Article of the Constitution, which provides that “when any office shall, from any cause, become vacant, and no mode is provided by the Constitution and laws for filling such vacancy, the Governor shall have power to fill such vacancy by granting a commission, which shall expire at the end of the next session of the Legislature, or at the next election of the people ?”

There has been some conflict of opinion in this and other States as to whether a vacancy occurs, within the meaning - of this provision of the Constitution, upon the failure of the proper body to select some person to succeed to the office, upon the expiration of a term. In the States of Pennsylvania and Missouri it has been held that a vacancy does not occur, but the incumbent of the expired term holds over. (Commonwealth v. Hanley, 9 Penn. St. 513; State v. Lusk, 18 Mo. 333.) In the case from Pennsylvania, one Brooks had been elected to the office of Clerk of the Orphans’ Court, but before the commencement of his term he died. Thereupon the Governor appointed the relator, Broom, who demanded the office of the incumbent of the expired term, who refused to deliver possession. The Court held that the incumbent of the expired term held over, and that there was, therefore, no vacancy in the office which the Governor could fill, in the sense of the Constitution of that State, which provided that prothonotaries and clerks should be elected by the people, and should “ hold their offices for three years if they shall so long behave themselves well, and until their successors shall be duly qualified. Vacancies in any of the said offices shall be filled by appointments to be made by the. Governor, to continue until the next general election, and until successors shall be elected and qualified as aforesaid.”

In the case from Missouri, the defendant, Lush, had been elected to the office of Public Printer by the Legislature, under a statute which fixed the term of office at two years, and “ until a successor is elected and qualified.” The Legislature failed to elect a successor. Thereupon the Governor appointed one Tredway to the office, acting under the sixth section of the statute, which provided that “ if the Public Printer should die, or resign, or if from any other cause the office should become vacant, the Governor shall appoint a Public Printer, who shall give bond and qualify, and shall hold his office for the same time that the Printer in whose stead he shall be appointed would have held.” The Court held that the failure to elect a successor did not create a vacancy upon the expiration of the term for which Lush had been elected, which the Governor had the power to fill, but that Lush held over.

The opposite conclusion has been reached in this State in the case of The People v. Reid, 6 Cal. 288. Reid had been elected by the Legislature to the office of Resident Physician of the Insane Asylum under a statute then in force, which provided that a Resident Physician should be elected by the Legislature and hold office for two years, “ and until his successor is appointed and qualified.” (Stats. 1853, p. 204, Sec. 5.) The Legislature failed to elect a successor to Reid. Thereupon the Governor appointed the relator, Langdon, to the office, and it was held that the failure of the Legislature to elect caused a vacancy to occur at the expiration of Reid’s term, and, as the Legislature had provided no other mode for filling it, (the statute being silent upon the subject of vacancies,) the Governor had the power to fill it by virtue of the constitutional provision to which we have referred. Subsequently, in the case of The People v. Mizner, 7 Cal. 524, it was again said to be settled in this State that vacancies in office are not confined to such as are produced by causes happening after the commencement of a term and before its termination, but also include such as are produced by causes happening or taking effect after the termination, as, for example, a failure to elect a successor; or, in other words, that a vacancy may exist as to a full term as well as to the unoccupied portion of a term. The doctrine of these cases has been somewhat trenched upon by the subsequent cases of People v. Whitman, 10 Cal. 43; Stratton v. Oulton, 28 Cal. 44, and The People v. Stratton, 28 Cal. 382; but for the purposes of the present case, we do not find it necessary to consider to what extent the rule in the former cases has been modified by the latter. We shall assume that the rule in Peid’s Case is still the rule in this Court for all the purposes of the present case, not intending, however, to be concluded upon the question hereafter.

The statute under which both parties claim the office reads as follows: “Messrs. E. S. Holden, Austin Sperry, A. J. Spencer, William M. Boggs, T. B. Anthony, Hewton Booth, and H. D. Bopart, are hereby constituted a Board of Directors of the Insane Asylum of California, and shall hold their office until their successors, who shall be elected by the Legislature in Joint Convention, and whose term of office shall be four years, shall be elected and qualified. At said election such choice shall be made that the Board of Directors shall always consist of four citizens of the City of Stockton or vicinity, and one citizen of each of the Congressional Districts of the State of California. They shall be divided into two classes, in the order of their names; the first, second, and third named shall go out of office at the expiration of two years from the passage of this Act, and the fourth, fifth, sixth, and seventh named shall go out of office at the expiration of four years from the passage of this Act. In case of a vacancy in said Board occurring when the Legislature is not in session, said Board may fill said vacancy until the next assembling of the Legislature, and then the Legislature shall proceed to fill said vacancy for the unexpired term only.” (Stats. 1865-6, p. 513.)

As already suggested, this case involves the right of both the relator and the defendant. The relator’s right rests upon the appointment of the Governor for the term succeeding Holden’s, commencing on the 31st of March, 1868; and the defendant’s upon the claim that he was the legal incumbent of the office at the expiration of Holden’s term, and therefore entitled to hold until his successor should be elected or appointed by some competent body or power, and, in connection, upon the farther claim, that the Governor is not vested with power to appoint his successor. We shall first examine the title of the relator.

Under the statute, as quoted above, Holden became entitled to hold the office for the term of two years from the 31st of March, 1866, and until his successor should be elected by the Legislature in Joint Convention, The Legislature having failed to elect his successor, the term following his, which commenced on the 31s¿ of March, 1868, and to which the relator was appointed, became vacant under the rule which we have adopted for the purposes of this case. The session of the Legislature, by constitutional appointment, terminated on the day previous, to wit: on the 30th of March, 1868, on which day the Legislature adjourned. The vacancy did not occur, therefore, while the Legislature was in session. The case then falls directly within the letter of the statute, which provides that if a vacancy occurs when the Legislature is not in session, the Board of Directors shall fill it until the next assembling of the Legislature, when that body shall proceed to fill it for the unexpired term. Under this section of the statute no vacancy can possibly occur which the Governor can have the power to fill. His power is confined, by the express terms of the Constitution, to vacancies not otherwise provided for. This statute covers the whole ground. It provides that vacancies which occur when the Legislature is not in session shall be filled by the Board of Directors. Vacancies which occur during the session of the Legislature can be filled by that body. Ho distinction is made between vacancies founded upon the causes by which they may be made to occur. The language is broad and covers every vacancy, irrespective of its cause. If a vacancy can be said to exist, as we assume in respect to a full term to which no one has been elected, then such vacancy is within the language of the statute, for the statute makes no exception.

That such was the intention of the Legislature is not only apparent from the language of the first section, but from the language of the fifth section of the statute in relation to vacancies occurring in the Board of Medical Visitors. It is as follows: “In case of a vacancy occurring in said Board of Medical Visitors, the same shall be filled by appointment by the Governor until the next meeting of the Legislature, at which time the vacancy shall be filled for the unexpired term by the Senate and Assembly in Joint Convention.” Thus the statute creates two Boards—first, a Board of Directors; and second, a Board of Medical Visitors. It provides for filling vacancies in each. In the one case it gives the power to the Board of Directors, if the Legislature is not in session; in the other to the Governor. This distinction proves itself. The mere fact that the power is thus divided proves that it was not intended to be united. Taking the two provisions together, it is obvious that the whole subject of vacancies was intended to be provided for. If occurring during a session of the Legislature they are to be filled by that body in respect to both Boards; if while that body is not in session, those occurring in the Board of Directors are to be filled by that Board, and those in the Board of Medical Visitors by the Governor; and we have no doubt that such was the intention of the Legislature.

The idea which has been suggested in argument that the vacancies which the Board of Directors are authorized to fill are only such as occur as to a part of a term, and do not include vacancies which occur as to a full term, and, hence, that the Governor has power to fill the latter, has not only no foundation in the language of the statute, but has none in the reason of the case, and we cannot adopt a distinction which neither the language of the statute nor the occasion suggests. Did the language of the statute leave the question open to doubt, we should find a further guide in its manifest spirit. If the Legislature intended that the Governor should fill vacancies which might occur in respect to full terms, we can perceive no sensible reason why they did not also leave him to fill those which might occur in respect to partial or unexpired terms. Our conclusion, therefore, upon this branch of the case is, that if the office for the term commencing on the 31st of March, 1868, became vacant by reason of the failure of the Legislature to elect, the power to fill the vacancy was not left in the Governor under the Constitution, but was expressly granted by the statute to the Directors.

It only remains to determine whether the defendant is or was a usurper at the time this action was commenced. It is very clear, in view of what has been already determined, that he was not. He came rightfully into the office by the appointment of the Board of Directors, upon the resignation of Holden. Hor did his incumbency cease to be rightful after the assembling of the Legislature on the first Monday in December, 1867. He' was rightfully in the possession of the office thereafter as locum tenens, both by the terms of the statute, which provides that the Directors shall hold until their successors shall have been elected and qualified, and by the rule of the common law, which was adopted from necessity, to prevent a suspension of the business of the office to the possible detriment of the public service. (Stratton v. Oulton; People v. Stratton, supra.) He, therefore, by reason of the failure of the Legislature to fill the remainder of the vacancy caused by the resignation of Holden, continued rightfully in the office as locum, tenens during the< session of the Legislature, and thereafter, for the same reason, until a successor should appear'bearing a commission from some person or body vested with the power of election or appointment. After the adjournment of the Legislature, on the 31st of March, 1868, the last day of Holden’s term, the defendant stood in the same relation to the office in which Holden would have stood had he not resigned. Holden would have continued rightfully in the office as locum tenens after the expiration of his term, until a successor duly elected or appointed appeared to relieve him. So as to the defendant. So far as the case shows, no such successor had appeared before the commencement of this action, and the defendant was, therefore, rightfully in the office as locum tenens at the time this action was commenced, and may so( continue until the office is demanded by some person who can produce a commission from either the Board of Directors or the Legislature, for the statute leaves the Governor no power in the premises.

Judgment affirmed.