San Andreas independent., 1857-06-13

Hon. W. ". Porter, County Judge Of Calaoeras
County:
DEAR SIR II have received your commune
cation of the 18th instant requesting my opin-
ion as to how long you are entitled by law to
hold the Office of County Judge of Calaveras
county.
You state that in the year 1856 you were
elected at a General Election, to that position,
and that said election was held by reason of
Judge Badgely having resigned the Office and
that Judge Badgley's term of office would have
expired by law, in April of the year 1858.
The Constitution of California (Article 6,
Section 81 has fixed the period for which
County Judge duly elected, shall hold his of
hcc. The portion of that section which is per-
tinent to the question, is as follows There
shall be elected in each of the organized coun-
ties OF this State, County Judge who shall
hold his office for four years. When it is re-
membcred that the Constitution is the supreme
law of the land, and its provisions not the sub
Ject OF change by statute and that the forego-
ing is the sole provision of the Constitution in
relation to the tenure of the Office of County
Judge, 1T would seem to be decisive of the ques-
ton.
But in other States, where the provisions of
the Constitution, in this respect, are similar to
that of ours, similar questions have arisen and
been determined In Banton as. WIson-4th
Texas Rep, p. 400, the question was as to the
tenure of the Office of Clerk of the District Court
for the county of Walker. The provision of the
Constitution of the State of Texas was as fol-
! lows !" There shall be Clerk of the District
Court for each county, who shall be elected by
| the qualified voters for members of the Legisa-
ture, and who shall hold his Office for four years
! &C." John d. Banton was the Clerk of the
Court and died during his term of office. Wilson
was elected his successor, and the decision was
that he should hold for a full term. The Court
say " the tenure of the several County Offices is
fixed by the Constitution and the incumbent
elected to fill the office for vacancy is entitled
to hold to the full end and term of the period
guaranteed by the Constitution. Vacancies by
death, resignation or otherwise, must in the
ture OF things, be of frequent occurrence and if
they be filled by election the incumbent is Sc
cured for the Constitutional limit in the enjoy
ment of the Office" In the case of Richard
Roman VS.. James A. Moody-Dallam page 5l2;
and Bradley VS.. McCrabb-Dallam, 504 the
same question presented and the same view
was taken by the Supreme Court of Texas.
! BY the Constitution of the State Of New York,
existing in 500, it was provided that the State
officers should be chosen for three years; but
IN relation to the office of Sheriff. the ConStitu-
ton OF that State contained the following pro-
vision: d" Sherifs shall be chosen by the cleo
tors OF their respective counties once an epery
three gears, and as often as pacancies mag happen
/ They shall hold no other office and shall be in
eligible for the next three years after the termin-
alton of their offices, and the Governor may re-
move them at any time arathin the three gears for
achich they shalt be etectcd' In the case of the
/ People on the relation of Peleg Gallup vs. Arch
ibald Green, end Wendell, 266) it appeared that
one Hughes was elected Sheriff of the county of
Cayuga, in November 1925. On the first day
of January, 1926, he entered on the discharge
of the duties of his office for the term of three
years but he died on the 10th day of July fol-
/ lowing To supply the vacancy thus created
Archibald Green was, in September, 1926 cleo
ted to the office of Sheriff of Cayuga county
and the Supreme Court of New York determ-
ined that upon the foregoing state of facts Green
was entitled to hold the office for the full term
of three years from his election. In that case
it was conceded that fthe Constitution fixed the
term of office at three years, the mere fact that
Green elected to fill a vacancy did not alter
! the duration of the term for which he would
hold the Office; but great stress was laid by
counsel upon the expression used in the Const-
tuition, shaU be chosen once IN eUerY three Yedrs
and as often as cacancics mag happen - and it
was contendcd that the meaning of the Ian
guage was that at eUery regular tiennial election
Sheriff shall be chosen at all erents, and that
this requirement of the Constitution necessarily
shortened the term of Green, who had been
elected since the preceding triennial election
The difficulty in the case seems to have arisen
/ from the peculiar verbiage of the New York
Constitution in relation to the triennial election
of county obfcerS-the same expression was not
used in relation to State officers-for Marcy j.,
4ln delivering the opinion of the Court says,
''most or the State officers are declared to be
chosen Tor three years; and IS not pretended
that person chosen to fill a vacancy in one of
them would be limited to the unexpired term Of
his predecessor In fact have not met with
any adJudlcated case in which contrary doc
trlGe is asserted. In the case of the People ex.
rel. William T. Barbour VS.. Gordon n Mott,
(3d California Rep. page 502,) which was dec
ded without argument, the only question really
before the court, was simply as to the duration
/ of an appointment of District Judge, which was
made by the Governor, and ii was there decided
that the appointee of the Governor could only
hold until the next general election by the peo-
pie and although it is there stated conclu-
sion, by Chief Justice Hastings that Judge Bar
bour was entitled to the Office during the re-
mander of the term of District Judges of this
State; yet the duration of the term of Judge
/ Barbour was not at all involved in the case. nor
is any portion of the argument of the Chief
Justice directed to that question. The LEADING
idea in the case seems to have been to preserve
the distinction for the time being out, created
by the Constitution between the first and sue
eeediRg terms OF District Judges; but when we
remember that but one, and permanent term Of
] four years tesure, was ever created bv the Con-
stitution in relation to the office of County
Judge the dictum in the Mott case can have No
possible bearing upon the question to which Won
have called my attention.
Inc Lounty Judge holds an Office which is
created by the Constitution. and the duration If
which IS ascertained and declared in that in
strament- Of course it is not competent for any
power or authority under the Constitution to
make change in the term or duration of the
ofdce, either by indireetion or positive enact
ment. It seems to me that Il term of four years
IN this office is inseparably annexed to an cleo
ton by the people, and it matters not, so far as