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fied. He had a fixed tenure and a contingent term. (People v. Edwards, 93 Cal. 153.) The election and qualification of Darby as Ward's successor (and not a demand by him for the office) ipso facto cut off Ward's contingent term, and limited him to the absolute period, that is, until noon of January 7th. (State v. Bemenderfer, 96 Ind. 374; State v. Seay. 64 Mo. 89; 27 Am. Rep. 206; Commonwealth v. Hanley, 9 Pa. St. 513; Gosman v. State, 10 Ind. 206; People v. Supervisors of Barnett Township, 100 Ill. 332; Mecham on Public offices, sec. 401; Throop on Public Offices, sec. 329.) The word "successor" is used in our statutes, as in the books, in the twofold sense of the one entitled to succeed, and the one who has in fact succeeded. It is here employed in the former acceptation.

It is a general rule, founded upon necessity, to prevent vexatious embarrassment in the public service, that an officer will not be considered out of office merely by the limitation of his term. In the absence of a statute authorizing or requiring him to hold until the qualification of his successor a vacancy arises upon the expiration of his term; but, notwithstanding, the law, for the public convenience, empowers him to continue to occupy his office. But one so holding over acquires no right to a new, fixed, and definite term. He is a makeshift merely, locum tenens, temporarily filling a public office which it is inexpedient to permit to stand without an incumbent.

The legislature may provide that certain acts, happenings, or events shall create a vacancy in law, while its greatest wisdom cannot prevent the occurrence of vacancies in fact. The death of the incumbent creates a vacancy as a matter of course, and without any expression from the legislature upon the question. But when, for example, the legislature declares that the office of a sheriff shall become vacant when he stands committed for sixty days for not paying over money received by him (Pol. Code, sec. 4186), such a vacancy may be described as a vacancy in law.

So here, the legislature having in effect provided that Ward's term upon the election and qualification of Darby came to an end at noon of January 7, 1895, a vacancy in law resulted when Darby's death prevented his succession. It is true the office would not be without an incumbent, since Ward, as locum tenens, could hold until the supervisors by appropriate action, appointed to the vacancy, but, as has been said, Ward's incumbency gave him no right to a fixed and definite

tenure.

That such a vacancy did exist has before now been held by this court, under circumstances similar to but less strong than those of the present case, in People v. Taylor, 57 Cal. 622. The reasoning of the Taylor case led to the conclusion that the officer elect, who had there failed to qualify, was an incumbent under section 996, subdivision 9, of the Political Code. The incongruity of declaring a person an incumbent who has never taken possession or entered upon the discharge of the duties of an office, and who could not be chargeable with misfeasance or malfeasance, is apparent. But the learned justice who wrote the opinion in this case was constrained somewhat by the earlier decisions of the court, and by his own conviction afterward expressed in Rosborough v. Boardman, 67 Cal. 116, that a vacancy could not exist unless it was one contemplated and declared by section 996 of the Political Code. The legitimate meaning of the word "incumbent" was, therefore, somewhat strained to meet the substantial ends of justice, the incongruity resulting from the failure of the legislature to discriminate in the in the use of descriptive

terms.

But giving full weight to People v. Taylor, supra, and treating Darby as an "incumbent," still by its authority the vacancy arose at the commencement of his term, and not during the term of Ward, his predecessor. But Darby was not in the true meaning of the word an incumbent, and we need not predicate the existence of the vacancy upon secon 996 of the Political Code.

As has been suggested, some of the earlier cases have held that to section 996, enumerating the causes of vacancy, is to be applied the doctrine of exclusion, but more lately the soundness of the rule has been questioned, and it may well be doubted. (People v. Hammond, 66 Cal. 656.) And that it cannot be applied in strictness is clear from the fact that the section does not recite all of the causes and events which the legislature itself has declared shall create vacancies. An instance of this is found in section 4186 of the Political Code, and to that may be added section 88 of the County Government Act of 1891, and the provisions for forfeiture of office declared in the act to promote purity of elections.

Finally, it may be said that the vacancy here arising is not one occurring during the term of an incumbent, since it did not arise during Ward's term, and Darby was never in strictness an incumbent, so that section. 996 of the Political Code, which deals exclusively with vacancies during the terms of office of incumbents, is inapplicable. (Miller v. Board of Supervisors, 25 Cal. 94.) This vacancy is rather an hiatus. It is in the nature of an interregnum. It arose when upon noon of January 7, 1895, Darby by death was not able to take his office. (French v. County of Santa Clara, 69 Cal. 519; People v. Taylor, supra.) The expiration of Ward's term alone did not create this vacancy. It was the election and qualification of his successor, and the expiration of the term, which worked the result. It is another instance of a vacancy contemplated by statute, but not expressed in section 996. (People v. Mizner, 7 Cal. 519-23.)

2. The vacancy which occurred having arisen at noon of January 7th, it remains to be considered whether the action of the board of supervisors upon January 2d was legal or illegal, and as this is determined, so will the claim. of appellant stand or fall.

The board, then, undertook to fill, not an existing vacancy, but one soon to exist; not, however, a contingent or possible vacancy, but one which in the nature of

CVII. Cal.-16

things were certain to arise, though at a future date, and at a time when in legal contemplation, and in fact, a different board would be in control of the county's affairs. Briefly, the act of the board was to make an appointment to take effect, and to fill a vacancy to arise, in the term of its successor.

We are not, therefore, here concerned with the question of the power to appoint to fill an anticipated vacancy by the person or body which, as constituted, is authorized to fill the vacancy when it occurs, but solely with the question of an appointment made to fill a prospective vacancy, which will arise at a time when there will have been a change in the appointing power.

Upon the election and qualification of Darby his right to the office for the term commencing at noon January 7th vested immediately, and Ward's contingent right to an additional term was cut off. Upon the divestiture of that right by death it existed in no one, and there was no revivor of Ward's contingent right to an extended term.

The power of the board of supervisors in dealing with such matters is drawn from section 25, subdivision 21, of the County Government Act of 1891, and it is limited to the filling of vacancies. That power could properly be exercised only upon an existing vacancy. The board could by its action neither create a vacancy, nor by anticipation fill one, which was to arise in futuro during the term of its successor.

Mecham lays down the rule in the following language, and, so far as our investigations have extended, its soundness is not opposed by any dissenting voice: "The appointing power cannot forestall the rights and prerogatives of their own successors by appointing successors to offices expiring after their power to appoint has itself expired." (Mecham on Public Offices, sec. 133.) This is the language of Ivy v. Lusk, 11 La. Ann. 486, while to like effect are the cases of State v. Meehan, 45 N. J. L. 189, and State v. Love, 39 N. J. L. 14.

We conclude, therefore: 1. That a vacancy arose in

the office of district attorney by reason of the election, qualification, and death of Darby; 2. That this vacancy existed at and after noon of the seventh day of January, 1895, and not before; 3. That the attempt of the first board of supervisors to fill the vacancy upon January 2d was in excess of its power and void; 4. That the vacancy was properly filled by the existing board at 3 o'clock P. M. of January 7, 1895.

Wherefore, it follows that the judgment appealed from is affirmed.

TEMPLE, J., MCFARLAND, J., VAN FLEET, J., GAROUTTE, J., HARRISON, J., and BEATTY, C. J., concurred.

[No. 18350. In Bank.-May 13, 1895.]

BUENA VISTA FRUIT AND VINEYARD COMPANY, APPELLANT, v. JOHN TUOHY ET AL., RE

SPONDENTS.

EQUITY-MAXIM-PLEADING.-A plaintiff seeking equity must do equity, and a complaint in equity which does not offer to do equity is demurrable.

ID.-ACTION TO ANNUL JUDGMENT OF FORECLOSURE-CANCELLATION OF MORTGAGES-FRAUD-RESTITUTION OF PROPERTY.-A corporation which has received a conveyance of property pursuant to an agreement of purchase made by promoters of the corporation, and which has paid a portion of the purchase money upon account, and given notes and mortgages as security for the residue of the purchase price, cannot maintain an action to have a judgment of foreclosure of the mortgages, and also the notes and mortgages, set aside, annulled, and canceled, on the ground of alleged fraud in their procurement, while retaining the conveyance to it of the property, and not paying or offering to pay the value of the property which it has received. ID. RESCISSION-RESTITUTION ESSENTIAL.-A plaintiff cannot attempt to rescind so much of a contract as militates against the interest of the plaintiff, while claiming the benefit of that portion of it in his favor; but he who would rescind a contract must put the other person in as good a situation as he was before, otherwise he cannot do it.

ID. REMEDY OF PARTY DEFRAUDED-ELECTION.-A party defrauded may rescind and restore within a reasonable time all the value which he has received under the contract, or he may affirm it and sue for damages.

[D. PRESUMPTION-COMPLAINT STATEMENT OF FACTS.-Every cɔmplaint in an action must be founded upon a theory under which the plaintiff

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