Los Angeles daily herald., 1888-08-31
JUSTICE KINGS COURT.


JUSTICE KINGS COURT.
Judge Cheney Decides that it Shall
Have a Proper Room.
Judge Cheney yesterday decided the
case of Judge King against the City
Council, which is of considerable inter-
est to the city. In his opinion Judge
Cheney says: This is an application on
affidavit for writ of mandate to COM
mand the defendant to provide a neces-
sary office and courtroom for the plaintiff
as an alleged Justice of the Peace. 1t
appears from the affidavit and it is by
stipulation on file agreed that such is the
fact, that on or about the 9th day OF
April, 1888, the plaintiff, King, was ap-
pointed by the Board of Supervisors of
this county to fill vacancy alleged to
exist in the office OF the Justice OF the
Peace. The question of Importance be.
fore the Court for determination is
whether the Board of Supervis-
ors had the legal power to so
appoint the petitioner, for if the court
should be of the opinion that the ap-
pointment was legal and authorized by
the Code, it would certainly follow that
lQ0 D6tltl0ucTs 10 CublblC0 w WAAb 90
prayed for in this proceeding. Section
lO3 of the Code of Civil Procedure pro.
vides that there shall be two Justices of
the Peace in every city having 10000 and
not more than 100, 900 inhabitants, to be
elected in the manner provided for by
the same section. 1t is stipulated that
the Board of Supervisors, after taking
evidence, declared that the population Of
the city of Los Angeles was more than
20, 900. There being no method Of which
the court is aware provided for by law to
ascertain the number OF inhabitants in
city at given time, am of the opinion
that the action of the Board of Super
visors in taking evidence as to the pop
ulation of Los Angeles city and
declaring that the same exceeded 20, 900,
was proper and legal. With them rested
the power and duty of filling any vacancy
which should occur in the Office of Jus.
tice of the Peace, and in determining
whether such vacancy existed as called
for the exercise of:that power in and the
performance of that duty they certainly
had right to take the steps necessary to
establish its existence or non.existence.
Arriving at the conclusion that the
Board of Supervisors had determined
legally and properly that the population
of the City of Los Angeles was such as
not only to warrant but demand the
official existence of two Justices of the
Peace, and it being stipulated that
but one such Justice had been
heretofore elected, does it fol-
low that vacancy existed such
as could be filled by appointment by the
Board of Supervisors? Section Ill of
the Code of Civil Procedure reads as fol-
lows: eff vacancy occurs in the office
OF Justice of the Peace, the Board of
Supervisors of the county shall appoint
an eligible person to hold the office for
the remainder of the unexpired term"
Section 996 of the Political Code provides
that "an office becomes vacant on the
happening of either of the following
events before the expiration of the term,"
and proceeds to enumerate in subdivi-
sions the various events. 1t is true that
in Rosborough VS.. Boardman the Su-
preme Court says that the enumeration
in the Code must be held to be exclusive,
but that question did not arise in that
case, and this expression of opinion must
be treated as obiter dict,m. Justice Thor
ton rendered dissenting opinion in the
case, and feel constrained to take the
view therein expressed. The section of
the Political Code in it's enumeration of
the events upon the happening of which
an Office becomes vacant, is dealing sole
ly with offices which are, or have been,
filled by officers performing the duties of
such offices. AS to such offices undoubt-
edly the enumeration must undoubtedly
be held exclusive, but what shall be said
of an Office which is, as a matter of fact,
vacant? The power of the BOARD of Su-
pervisors is not limited to the appoint
ment of an officer to fill vacancies which
may occur in pursuance to the provisions
of the Code referred to, but it is their
duty to fill by appointment any vacancy
which happens to occur in the Office of
Justice of the Peace. Article
v, Section s, of the Con-
stitutlon. of this State says: "When
any office shall from any cause become
vacant and no mode is provided by the
constitution and law for filling such
vacancy. the Governor shall have power
to fill such vacancy" do not believe
that the Legislature, merely by enacting
statute declaring that an office already
filled by an incumbent" shall under
certain circumstances become vacant,
can so restrict the meaning of the con-
stitution as to make it and the statute
perpetrate the absurdity Of saying that
an Office, which has not and never had
an incumbent, is not vacant. An exist
ing Office either has or has not an incum-
bent officer either de facto or de jore.
1t is in my opinion manifest ab-
surdity to say that an Office which is
vacant is not, because no one of the
events enumerated in the code referred
to has happened.
do not believe that the honorable
Justices of the Supreme Court intended
that such a construction should be given
to the decision in the case of Rosborough
vs. Boardman. The question was not
presented in the cause and presumably
was not argued. Section 103 Code OF
Civil Procedure makes it the duty of the
civil authorities to provide for each JUS.
tice suitable Office in which to hold his
court. From the views expressed it fol-
lows that the writ prayed for should be
granted.
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