Los Angeles herald., 1890-07-26

the county of Los Angeles, state of Cali
fornia, who shall hold Office until the
first Monday after the 1st day of Janu-
ary, 1889. At the next general election
two judges of the superior court of said
county shall be elected in said county,
who shall be successors of the judges APP
pointed hereunder, to hold Office for the
term prescribed by the constitution and
by law.
Under the above act the governor ap-
pointed Judges Hutton and O'Melveny,
and in November, 1883, the next general
election, the voters cast their ballots for
and elected, Judges Van Dyke and Wade.
Now, whether they hold for six years, or
for only two, turns on two points
First, whether or not vacancy occurred
when the two new offices were created,
and, second, upon the construction to be
put upon the expression in the last
clause of the act just above cited, to-wit:
ITO hold office for the term prescribed
by the constitution and by law"
Vacant" " means untitled ,unoccupied;
and in an official sense, does vacancy
mean any more than there exists an
office with no one to fill it?
The legislature, by act referred to,
enacted that "the number of judges of
the superior court of the county Of Los
Angeles, state of California, is hereby
increased from two to FOUR There
were then four offices of superior Judge
and only two occupants. We're not,
then, the other two offices untitled, un-
occupied, vacant? And, too, if there
was no vacancy, how could the governor
appoint Judge to act? You say he
was authorized by the act above cited
within ten days after the passage of
this act, the governor shall appoint two
additional judges" etc., etc.
But the legislature can give no greater
power to the governor than he already
has under the constitution. When the
governor appointed Judges Hutton and
O'Melveny he must have been acting
above quoted (Sec. 6, Art. VIZ is the
Of superior judge. Then when Judges
Van Dyke and Wade were elected it
was lin the language of the constitution
"to fill the vacancy )" and they should
''hold Office for the remainder of the un-
expired term" The remainder of an
unexpired term cannot be six years, the
whole of full term.
What is meant by the expression in
the creating act term prescribed by
the constitution and by law?" The sec
ton above quoted (Sec. 6, Art. VI) as 1
have said before is the only one bearing
upon the subject. The portions of that
section relating to terms and elections
are as follows:
''The term of Office of the judges of
the superior court shall be six years
from and after the first Monday of Jan
uary next succeeding their election"
"The first election of judges of the su-
perior courts shall take place at the first
general election held after the adoption
and ratification of this constitution"
MAY Z, 1879. The first set of superior
judges in the state was elected in 1879,
and by special provision (Acts of 1880,
section 6S, c. G. P.,) the en-
tire set went out of Office in five years.
(1SS4). Was it not clearly the inten-
ton, both of the constitution-makers
and the legislature, that at the expira-
tion in the first instance of five years
and ever after that at the expiration of
every six years there should be a clean
sweep of all the superior judges in the
state, Except in San Francisco especially
provided for)? Else why did they
especially provide that in the city and
county of San Francisco such should not
be the case. The first set held till 1884,
the second is to hold till 1890. Every
superior judge in the state elected in
1854 retires in 1890; every one holding
by appointment of the governor retires
in 1890; every one filling an unexpired
term retires in $780, Are Judges Van
Dyke and Wade to be notable excep-
tions? If so, where is the law for it?
Does not the term prescribed by the
constitution and by law" end with them,
as with all the others, in 1890? If it had
been the intention of the legislators that
these judges should hold for six years,
would it not have been easier to say so
than to refer us to the constitution and
law? j. B. DUNLAP.