The record-union., 1894-02-13

CAL. 3S. overruling some decisions to the
contrary effect, held the same doctrine,
ana has ever since adhered to the same
rule People VS.. Tilton, 81 CAL, GA: Peo-
pie vs.. Bissel, 40 Cal, 407; People VS..
Stratton, Is Cal, $50; People VS.. Tyrrell.
81 cal., 40; People VS.. Edwards. SO CAL,
NOT A PARALLEL CASE.
The respondents counsel relies upon
The case OF People VS.. Taylor, 81 Cal. $40.
But that case is clearly not analogous
with this. There, there was an eligible
person duly elected who failed to tile his
oath and official bond within the time
prescribed by law, and the court held
that, nevertheless, he was the incum bent
OF the Office within the meaning OF the 9Th
subdivision Of Section $50 of the Political
CODE, which provides that a vacancy oc
ours as result OF refusal or neglect to file
| The official oath or bond within the time
prescribed. The court said that the pro-
vision oi The Coue referred to regards
the person duly elected to an office as
the incumbent of that office from the
time OF the commencement of the term
tor which he was elected until the expira-
ton thereof, whether he qualities or not"
no ELECTION.
This reasoning certainly cannot be sus-
tanned il applied to the case OF an ineligi-
bic person, for such person could not be
duly elected, and could not, by filing an
oath and bond acquire right TO hold the
office. In the case at bar there was, as in
the case of People VS.. Iilton, failure of
the elective authority to ill the Office,
and therefore there was no incumbent
whose death, resignation, failure to
qualify, removal from Office, or super
vention of any eXigencies mentioned in
Section $50 OF the Political Code, would
create vacancy.
For such event as the failure of the
elective authority, which in this case was
the people voting at a regular election in
which the election Of the Otlcer N ques-
ton was authorized by law to be elected.
to I'LL the office, the law has provided, by
extending the term of the prior incum-
bent until his successor is elected and
qualified.
Neither the 10th subdivision of Section
996 OF the Political Code, nor Section 1l27
of the Code of Civil Procedure, can be
construed to apply to the case OF a failure
OF the elective authority to perform the
necessary function of so far filling an
office as to make a vacancy possible by
the happening of some such event as
those above mentioned.
A MINNESOTA CASE CITED.
-
Am. Rep. 729 As Mimi. 309), it was held
that an incumbent of an office who is en-
titled to hold for fixed period, and until
his successor is elected and qualified, is
entitled TO hold over i'll The event of the
election of an ineligible successor, and
may question its legality by quo war-
ranto. Referring to the law in that State
Minnesota. fixing the term of office at
two years and until his successor is
elected and qualified" the Court said:
If the election of the respondent was not
legally authorized, the relatOr would con-
tlnue to hold the office by force OF this
express provision of the statute'",
In that case the respondentwas ineligi-
bic because at the time of his election he
was not, by reason of his alienage, a
qualified voter.
In the case of Kimberlin VS.. State.
above quoted, the Court said: 1.-THE adj
Indicated cases seem to be harmonious in
holding that where one is lawfully in
possession of an office under a constitu-
tional or statutory provision to the effect
that he shall hold until his successor is
elected and qualified, his right to hold
over continues until qualified successor
has been elected by the same electoral
body as that to which such incumbent
owes his election, or which by law is en-
titled to elect q successor"
RODGERS LAST ELECTION.
The validity of the election of March
IA, 1888, must depend upon whether or
not there was then vacancy. The Act
Of March 8, 1872, authorized an election at
that time only ''in case of a vacancy.v
The office was filled by the relator at that
time, so as to exclude the idea of a va
cAncy, as much as it had been at anv time
prior thereto.
If the ineligIbility of the respondent at
the election in March, 1892, resulted in a
failure to fill the office at that time, and
no vacancy resulted by reason Of statu-
tory extension of relatOr's term, no after
occurring event changed such condition;
unless the subsequent acquisition by the
respondent of the qualifications which he
lacked in the first instance restored him
to statu quo and broke the force of the
statute which upholds the right of the re-
latOr.
1t follows from these conclusions that
the relatOr is entitled TO the office and to
the judgment prayed for in the COM
pIaint, which is as follows:
Wherefore the plaintiff prays judg-
ment that the said defendant be declared
not entitled TO the said office, and that he
be ousted and excluded therefrOm; that
said w. +. Drew be entitled to said Office,
and that he be admitted to the same and
the right TO exercise the functions thereof;
that plaintiffs recover their costs of suit
herein, and for such further or different
relief as to the court may seem proper"
CONFLICTING EVIDENCE.
The Charge of Obstructing an Alley
Dismissed.
In the Police Court yesterday the case
of Hugh Casey charged by Carl Strobet