Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1880-07-08
COUNTY GOVERNMENT BILL.
Opinion of the Attorney-General Of its
Effect upon Certain County officers.

/ COUNTY Wv SA>->~'
Opinion of the Attorney-General Of its
Effect upon Certain County officers.
The question having been raised before the
! Board of Supervisors in relation to the office
of Tax Ccllector-whether or not the statute
of 1884, making the Sheriff ex officio Tax
| Collector, was repealed by the new county
government bill of last winter-the following
opinion Of the Attorney-General. which was
yesterday submitted to the Board OF Super
visors, viii no doubt be accepted by it as
final upon the subject. It also includes the
positions of Recorder and Auditor, as filled
by one person. This applies alike to counties
throughout the State, and is therefore of gen
eral interest upon these points:
SACRAMENTO, July Z. 1880.
A. Hebron, Esq, Sheriff of Sacramento
county-Dear Sir: In answer to your COM
munication of TO- day would say that, in my
opinion, it is not the duty of the Board OF
Supervisors of your county to appoint lax
Collector, Auditor or Recorder at this time.
The fact that the duties of the Tax Collector
are to be performed by the Sheriff, and that
the Sheriff is ex officio Tax Collector, makes
the two Offices none the less separate and dis
tinct than they would if filled by two persons.
The offices are separate and distinct, though
they may be held by the same person, and 1T
makes no difference in the character OF the
offices, whether the law declares in terms
that the Sheriff shall also be Tax Collector
or declares that the Sheriff shall be ex officio
Tax Collector. (See People VS.. Durick, 20
Cal, "a The fact that the offices OF Sheriff
and Tax Collector were consolidated before
the last election, and that the former was
elected by the people at that election, rem
dered the election of Sheriff the election
also of a Tax Collector. (See Merrill VS..
Gorham, Cal, 4S
| 1t results that you have in Sacramento
county Sheriff and Tax Collector. and
that they, notwithstanding the consolidation
of those Offices, are separate and distinct, and
that each of said offices has an incumbent
who has been elected by the people. This rea-
soning applies as we'll to the offices of Auditor
and Recorder. This being true. Section 400 of
the Political Code, as amended in 1880, renders
the question propounded by you matter of
easy determination. That section provides
that the election Of the successors of
all county officers Except Judicial Off
GERS and School Superintendent who
were elected in the year 1879 under general
the year 1880, and they shall take Office on
the first Monday in March, 1881.
The effect of this provision is and must be
to continue in office until the first Monday in
March, 1881, all persons elected to the offices
mentioned in 1879 but if there was any
question as to the construction to be given to
this section, Section $40 of the same Code
places the matter beyond question or contre-
versy It provides that every officer must
continue to discharge the duties of his Office,
although his term has expired until his sue
A L.
ders it impossible for vacancy to occur in
any of the enumerated Offices as long as there
is an incumbent who has been duly elected
or appointed and who continues actually to
perform the duties of such office.
1t is therefore my opinion that the offices
above mentioned are filled with incumbents
elected by competent authority, and that
they and each of them under the provision of
Section 4109 will continue to hold their offices
until the first Monday in March, 1881. If,
however, there were any doubt as to the cor
rectness of the above views, there is another
matter going to the power of the Board to
appoint which is still more fatal to the
position which | understand has been taken
by some of your county officials. The pro-
vision under which the power to appoint
Tax Collector is claimed is Section Ais of
the Political Code, which provides: GA
vacancy in the office of Superior Judge is
filed by an appointee of the Governor. All
other vacancies in county and township offices
are filed by appointments made by the Board
of Supervisors"
Under this provision before the Board can
act there must be a vacancy. 1t would be
absurd to attempt to fill vacancy that does
not exist. But under the provisions of Sec
ton $40 of the Political Code vacancy can
not exist so long as there is an incumbent
who continues to discharge the duties of his
office, although his term may have expired.
In the case of the People Vs. Bissell (49 Cal.
400, and also IN the case of the People VS..
Tilton 81 CAL GA, the Supreme Court of
this State, speaking as to this section, and
also upon the question as to when vacancy
occurs, said in effect that when there is
party expressly authorized by law to dis
charge the duties of an Office temporarily,
and until the power upon whom the duty of
election is devolved can regularly act, there
is no vacancy within the meaning of the Con-
stitution and the law. There is no good
reason for appointing a party to tempo
when there is already party expressly
authorized by law to temporarily discharge
those duties. Under such circumstances the
existence of the vacancy, the very basis of
the power of appointment and the very reason
upon which that power is vested in the Board
fails. and the circumstances under which the
Board may appoint have not arisen.
1t is therefore clear that the Board of Su-
pervisors of Sacramento county has no power,
by appointment, to fill the offices of Tax Col
lecter and Recorder, the duties Of which, as
above shown, are now exercised by compe-
tent parties who have been elected by compe-
tent authority. l have the honor to he, yours
respectfully, A. i. HART,
Atfornev-f 1eneral