The record-union., 1894-02-13
THERE Was NO VACANCY.
So Declares Judge CatIin in the Chief
of Police Case.
Hence Warren f. Drew was Entitled
to the ONCE During All of
Rodgers Incumbency.


cerned, the long-pending case of W. +.
Drew vs.. John 3. Rodgers-to oust the
latter from the office OF Chief OF Police
is settled. Judge Catlin rendered judg-
ment yesterday in favor of Drew, in a
long decision, which is as follows:
RECITAL OF FACTS.
The relator was duly elected to the Of
fee of Chief OF Police of the city of Sac
ramento on the - day OF March, 1871, ana
entered upon the duties OF the ofnce on
the first day of the month ensuing.
The election was in pursuance OF the
Act of March g, 1872 Qaws 1872, page
243), which Act was part of the charter
of the city, and provided for the election
OF Chief of Police every two years, and
that the officer thus elected should hold
his Office for the term Of two years, and
until his successor is elected and quail
fed"
At the annual city election held on the
Sth day OF March, 1892, the defendant re-
ceived the highest number OF votes tor
said office, and received from the Board
Of Trustees, who were the proper can
Vassing officers, a certificate OF election,
and thereupon entered upon the duties OF
the office. The relator objected to the
assumption of the office by the defendant
and protested against it for the reasons
which will further on appear, and claimed
TO hold over in said office upon the ground
that a successor had not been legally
elected.
The defendant first became a citizen Of
the United States by naturalization on the
Goth of February, 1892. He claims, how
ever, to have been a citizen before that IN
one or both of TWO ways: First, by the
naturalization Of his father on the 30th Of
August 1873, at which time he claims to
have been under u years of age; and,
second, by the marriage OF his mother TO
native born American citizen While he
was minor.
Both OF these claims were judicially
settled adversely to him by final Judg-
ment in the case of NJ. NJ. Drew VS.. John
B. Rodgers, IN the Supreme Court, de-
cided on the 10Th of December 1893, in
which 1t was determined as matter of
fact that he was over the age OF u when
his father was naturaliZed, and that his
mother was not married the second tlme
as alleged. The action in which this was
determined was proceeding under Sec
fion 4, ct sea-, of the Code of Civil
Procedure, the object Of which was to
litigate and determine the question of
DEFENDANTS CITIZENSHIP.
"When the person whose right to the
office is contested was not at the time OF
the election eligible to such office" is one
of the questions expressly provided to be
settled and determined by such proceed
provides the effect of a judgment or final
order in an action or special proceeding
before a court or Judge Of this State, or
OF the United States, having jurisdiction,
shall be conclusive ''in respect TO the per-
sonal, political or logical condition or re-
lation OF particular person." upon the
condition OF the person. BY the judg
ment in said proceeding the said election
was annulled, and the said certificate can
celled. The parties were, however, per-
mihed to open the much-moOted question
as to the age OF the defendant at the time
OF his fathers naturalization, and testI-
mony was introduced on both sides.
Neither the defendant nor any OF his
relatives in Australia were able to more
than conjecture that he was born some
time about the year 1851 or 1862. But en-
1irely satisfactory proof was made on the
part Of the plaintiff by the production of
duly authenticated copy of the record
of his birth and baptism, by which it APP
peared that defendant was born in New
South Wales on the 18th day of October,
1850, and that, consequently, on the Goth
OF August, 1873, when his father was nat
uraliZed, he was nearly % years OF age.
1t also appeared from the evidence that
said birth was in lawful wedlOck Of de-
fendants parents, whose names We're
Thomas Henry Baxter and Mary Gra-
ham.
Defendant and his parents came to Cal
ifornia in 1884 or 1855. The parents were
soon after separated and though the hus-
band lived until after the death of his
wife they were never divorced.
1t thus appearing that defendant was
not citizen of the United States ninety
days before the day of election. it follows
that he was not elected to the Office of
Chief of Police, and that in legal contem-
plation there was no election of such otfi-
Ger at the election IN March, 1892.
NO VACANCY TO BE FILLED.
On the 9th day of June, 1892 the Board
of Trustees of the city appointed the de-
1endant Chief of Police. This the Trus
tees were authorized to do, if there was
then a vacancy in the Office.
On the I4th OF March, 1898, at the an
nual city election the defendant received
the highest number OF votes for the office
and received a proper certlhcate OF cleo
tion Ii there was then vacancy IN the
office. such election would be valid for
the unex pired portion of his vacant term.
This presents the question as to whether
the relator is entitled TO the office by
reason of the failure to fill the office at the
election in March, 1892, and by the effect
of his election in March, 1890 for the term
of two years, and until his successor is
elected and qualified" and this will de-
mend upon whether or not the failure
mentioned left the office vacant The
statutory prolongation of relator's term,
contained in the provision that 1t should
extend until his successor is elected and
cnalitied, would seem to answer the
question without further discussion, were
if not for the contention that, although
) fbe respondent was not eligible at the
time of his election by reason OF the fact
that he had not then been citizen for a
neriod of ninety days, yet by reason OF
his subsequent naturalization, ana MS ap-
Dointment in June, 1892, he became en-
titled to the Office.
In other words it is claimed that there
was a vacancy in the office which ii was
competent for the Board of Trustees to
fill by his appointment, and that the cir
cumstances of his election, his natural
ization on the 10Th of February, 1892, and
his annoinTment on the 27th of June.
1902 taken together, obviate the force OF
the statute extending the term of the re-
lator.
FORMER DECISIONS.
Tn Kimberlin VS.. State, % n. Z. Rep,
773. Brown was duly elected by receiving
the highest number of votes, but sudden
ly died after the closing OF the polls and
before the counting OF the votes was COM
pleted. and it was held that the Office dld
not become vacant, for the reason that 1t
was filled by the continuance IN Office OF
the predecessor incumb bent, whose term
of Office continued until his successor
shall have been elected and qualified"
q'he court said: 1.-THE period between
the expiration of the term fixed by stat
ute and the time at which a successor
shall be qualified to take the term is as
much part of the incumbent's term as
the fixed statutory period"
The supreme Court of this State, as
early as 1888, in People VS.. Whitman, IL
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