The record-union., 1893-07-22

MEN: In the investigation of the case
brought by J. Charles Jones against your
honorable board, we discovered that there
is vacancy III the office Of District Attor-
ney OF this county, and now, in compile
ance with your request that we give you
written opinion on the subject and adj
wise you as to your duty in the premises,
we respectfully submit the following:
Frank b. Ryan was elected District
Attorney at the general election held No
vember s, 1892 His certificate of election
was made out and dated on the Dist day
delivered to him by w. w. Rhoads, the
County Clerk at that time, on November
%, 1892.
The law Section 9O7, Political Code re-
quires the oath of office to be taken, sub
scribed and filed within ten days after
the officer has notice of his election or
appointment. Mr.. Ryan filed his oath OF
office on December 3, 1892, twelve days
after the certificate of election was per-
sonally delivered to him, and fourteen
days after it was made out. He filed his
bond in the County Clerks office on De-
cember 5, 1892, and recorded the same in
the Recorders office on December +, 1892.
He thus failed to qualify
WITHIN THE TINE REQUIRED BY LAW.
His failure to qualify causes vacancy in
the office. The Political Code Section
900. touDulN lSlOU ~ pTONlu6S LHdt al OllCc
becomes vacant by the refusal or neglect
of an officer to file his official oath or
bond within the time prescribed.
In the case of People VS.. Taylor (57 Cal.
624) this question was considered by the
Supreme Court of this State. In that case
the question was whether the failure of
an officer to qualify within the time pre-
scribed by law created a vacancy, which
the Supervisors had power to fill. The
court held that the failure to qualify
within the time prescribed created a
vacancy, and that the Board of Super
visors should fill it by appointment The
Supreme Court on this particular point
said:
1T is the duty of the court TO give this
provision the force and effect which it was
intended by the Legislature that it should
have, if such intention can be ascertained,
and we think, that without doing violence
TO the language of the statute, we may
construe it to mean that the refusal or
neglect of a person duly elected to Tile his
official oath or bond within the time pre-
scribed by law, creates a vacancy as soon
as the term for which he is elected COM
mences, which may be filled by the
proper appointing power"
FILLING THE VACANCY.
On the power of the board to fill the APP
pointment the court said:
If there was vacancy the Board of
Supervisors had the power to ill it by
appointment; and that board having
appointed the relator, and he having duly
qualified, was, from the date OF said
qualification. entitled to the possession of
the office until his successor shall be duly
elected and qualified"
OTHER CASES CITED.
In People VS.. Perkins, So Cal. oil, the
Supreme Court said:
The first of the sections referred to
provides that when different time is
not prescribed, the oath of office must be
taken, subscribed and filed within ten
days after the officer has notice of his
election or appointment; or, when no
such notice has been given, then within
fifteen days from the commencement of
his term of office; and the other section
provides that an office becomes vacant
upon the happening of certain events, one
of which is the refusal or neglect of one
who is elected or appointed to an office to
file his official oath or bond within the
time prescribed. These provisions of the
law are mandatory. The official oath or
bond must be filed within the prescribed
time or the right to the office becomes
forfeited"
In Payne VS.. San Francisco, 3 Cal. l22
the plaintiff claimed to be Street Com
missioner of the city of San Francisco,
duly elected and qualified, and that as
1,OO
per annum, payable monthly; that he
had performed his duties and became en-
titled to his salary of 1888 80 for the
month preceding. The District Court de-
cided that the plaintiff not having taken
the oath of office within ten days alter the
election, nor within ten days after the
votes were canvassed, and the result
known, such failure to qualify under the
city charter of San Francisco
VACATED THE OFFICE
On appeal to the Supreme Court the
court said:
ITO entitle the plaintiff to recover in
the court below, it was incumbent on him
to show, not only that he had discharged
the duties of the Office of Street Commits
sioner for the month of March, 1852, but
first, that he had been lawfully elected.
and second, that he had qualified himself
to hold the office by taking the oath and
filing the bond at the time and in the
manner prescribed by law"
The court then refers to cases where an
officer is required 10 perform an act
within specified time, which act affects
others, and draws the distinction between
those cases and the case where an officer
fails to qualify within the time prescribed
by law. Says the court:
REGARDED AS A REFUSAL.
There is a broad distinction, however.
between these cases and the one at bar.
wherein the act to be performed was not
an official act regarding the rights of
others, nor was it for a public purpose.
nor one i'll which the parties could suffer
from the delay; it was not to affect the
rights of third parties but his own RIGHT
II affects him, the officer, his rights and
duties; it comes within the exception; the
nature OF the act to be performed, and the
language used by the Legislature show
ing that the designation of the time was
intended as a positive limitation; and
after having been declared duly elected
by the proper officer the plaintiff has no
choice but to accept or forfeit the office.
His neglect to qualify within the ten DAYS
was refusal on his part, and vacated the
office so far as he had any right or claim
thereto.i
So in Ball VS.. Kenfield, IS Cal. 800.
where question arose as to the date from
which salary commenced of an officer
who was required to qualify within thirty
days after his appointment, the Supreme
Court said:
But they were obliged, by the Ian
guage of the Act, to qualify within thirty
days after their appointment, and their
failure to qualify would have operated a
vacancy OF their appointment"
ADVICE To THE SUPERVISORS.
In People VS.. Brite, 80 Cal 70, under
another subdivision of Section 9g6 of the
Political Code, it was decided that a sue
cessor may be appointed without a previ- |
GUS adjudication that the Office is vacant.
These decisions show conclusively that
where an officer fails to qualify within
the time prescribed by law, a vacancy is
created in the office. There are other de-
cisions in this State upon other phases of
this question, but they are all unanimous
that the failure to qualify within the time
prescribed causes a vacancy.
We therefore advise you that there is a
vacancy in the office OF District Attorney
of this county, and that it is your duty,