The record-union., 1896-11-21
THE MATTER FULLY STATED.
Text Of the Supreme Court Decision in
the Drew Case.
The Appointment of Rodgers and His
Election in 1898 Void, There
Being No Vacancy.

The following is a synopsis of the re-
cent decision of the Supreme Court
affirming the decision of the Superior
Court in it's refusal to grant new
trial in the case Of Warren +. Drew,
| respondent, against John B. Rodgers,
| appellant. commenced in April, 1893,
and brought to trial February 4. 1894.
| By it's judgment the Superior Court
declared that the relator, Drew, is
| entitled to the office of Chief of Police
of Sacramento, and has been so entitled
since April /, 1890; that the defendant.
Rodgers, usurped and intruded into the
office and wrongfully held the same,
and that he be ousted from the office
and Drew be installed.
Drew was elected to the office at the
| city election held in March, 1890, for
| period of two years, or until his sue
cessor had properly qualified. At city
| election in March, 1892, Rodgers re-
ceived majority of the votes cast for
| the office and the Canvassing Board de-
| clared him elected, but on June 18th he
was adjudged by the Superior Court to
| be ineligible to the office by reason of
alienage and his election annulled. He
| appealed and the judgment was
affirmed by the Supreme Court in 1893.
| However, in April, 1892, Rodgers
| forcibly dispossessed Drew of the office
and performed the duties himself,
| though the latter was at all times
willing to perform them.
/ The difficulty of Rodgers alienation
having been removed by his naturaliza-
ton, the Sacramento Board of Trustees
1 +al hi I,i e
of Police, to serve until the next city
| election, and in 1898 he was again
| elected to the office.
| The decision relates that the appel
liant contends that by the formal elec
| ton and qualification of Rodgers in
| March, 1882, a successor to the relator
| in the office was elected and qualified
within the meaning of the statute, per-
mitting the latter to hold over until the
| occurrence of the event and after the
! expiration Of his prescribed term of
| two years, and that thus such contin-
gent right of the relator to a prolonga-
| ton Of his term was cut off.
| The Supreme Court differs from the
appellant. Ineigibility for an office
means incapacity to be elected or
| otherwise chosen thereto. Rodgers was
affected with such incapacity in March,
1892, and the votes cast for him were
Intellectual for the purpose of an cleo
! ton. There being thus a failure to
elect successor TO the relator, the con-
tlngency arose upon which he had the
right to an extension of his original
| term. 1t is claimed that the whole mat
ter is disposed of in the appellants
favor by the decision in the people
| against Ward, JOY Cal, 236; but in
| that case the successor had been duly
elected and had properly qualified, and
the question presented differed widely
from that involved here. 1t results
that the alleged appointment of the de-
fendant to the office on June 27, 1892,
was void because there was then no
vacancy. And for the same reason
the election of Rodgers for the unex-
pired term in March, 1893, was void;
the statute requiring an election for
the office in the even-numbered years,
and permitting it at other times only
in case of a vacancy.
The court rightly refused the offer Of
evidence at the trial that while defend
ant was yet a minor his mother was
married to citizen; the object being to
office, in March, 1892, although the pre-
| else matter had been put in issue in the
previous case of Drew against Rodgers,
and Seeded against him. The parties
and causes of action are not Identical in
both cases, and Drew, the contestant,
was a different person from the re-
spondent here, but that was a proceed
ing prosecuted for the purpose of try
ing the very question whether Rodgers
election was not void because of his in
eligibility. 1t was a matter of public
concern, involving the political and le-
gal relations of the contestee, and there
is Ho reason to doubt that the nullity of
his election there determined was con-
elusive upon him in the present action.
1t is further argued that the court
| should have dismissed the proceeding or
granted non-suit, because by the new
charter of the city the office in con-
| troversy had been abolished before the
case came on for trial. Under the
statute governing the subject, the re-
! moval of the usurper is not the sole OBJ
| ject which is, or may be, accomplished
| by the proceeding; judgment may be
rendered upon the right of the defend
| ant, and also upon the right of the
party. if any, alleged to be entitled to
| the office; If against the defendant he
| must pay the costs, and, at the courts
discretion, fine; it is also the founda-
| ton OF a recovery by the rightfu claim
| ant of damages occasioned by the
usurpatfon.
When, as in this instance, the action
| has been brought during the usurpation.
| and such consequences may flow from
| the judgment, it ought not to be held
| that the action must abate merely be-
cause eff1ux of time, or other circuEn-
| stance which does not settle the legal
| wrong of the intrusion, has put period
| TO the disputed term And to this ef-
| feet is the decided preponderance Of au-
| thorities, all of which proceed on the
| assumption that after the expiration of
the usurped term no substantial right
! was involved.
The judgment is not in form appro-
| pirate to the state of the case at the
| time of trfal-the office having been
! abolished; but ii cannot be corrected
4 on this appeal. which is from the order
| denying motfon for new trial only.
| There is no error in the record available
i