The San Francisco call., 1897-05-14

| hold regular election for such officers until
| the last Saturday OF May, 1898.
| 1t seems 10 be well settled that "a newly
! created Office which is not filled by the tribu
! nal which created it becomes vacant on the
| instant of its creation" lam. & Eng Ency. o1
| Law vol 10 D. 431 and cases cited) AL.
| though this is not specifically enumerated in
| the act Itself as one of the grounds OF vacancy
| it is a principle nevertheless recognized ID
that portion of section l9 OF the act which
provides that vacancies in the office of trus-
tee in 8 new district shall be hlled as other
| vacancies" Ii this principle obtains, and in
| order to carry out the intention OF the Legisla-
ture it must of necessity do so, 1t follows that
as soon as the act n question takes effect there
will be vacancy in each OF the offices of road
| trustee in all the road districts in The State.
The remaining quessi69n' uhen, Is now IS such
vacancy shall be hlled! SUBDIVISION OF sec
tion OF the act provides that:
When a vacancy occurs from any of the causes
specified in sec ion 996 of the Political, code of
a suitable person to fill such vacancy until the
lst day of July next succeeding such appoint
ment.
Section Is pecifcally enumerates vacancies
in the office of road trustee to be caused, in
addition TO "the happening of any OF, the
events specified in section 996 of the Political
Code" as follows: by failure TO elect, as pro-
vlded in section 81 OF the act, and 'by the
that whenever new districts organized such
OF the trustees of the old district as reside
within the boundaries OF the new district shall
be trustees of the new district until the expi.
ration of their term OF office, and that "vaean.
cies in the Office of trustee in new district
shall be filled are other vacancies; and in
the same section 1t IS provided that mo per-
son shall be appointed 10 fill any vacancy ex.
| cept upon petition signed by at least ten
| electors OF the district; provided, that va
| cancy may be filled in any case upon petition
signed by majority OF the electors OF the
! district"
| We have thus express authority conferred
/ upon the Board OF Supervisors TO fil vacancies
which occur under the provisions of section
| 996 of the Political Code, aud so far as direct
! provision is concerned the law is silent as tc
| how other vacancies shall be filled. Ordi-
nurily the express authority TO fill certain
| specific vacancies won under the familiar
! rule expressio unius exclusio aIter1uS. eXciude
that board from the right TO fill other vacan-
| cies, and the silence OF the act so lar as a
| direct provision to filing other vacancies is
concerned would under the provisions OF sec.
tion of article V of the constitution vest the
| right to fill them in the Governor.
! 1t is, however, well settled "that in the con.
| struction OF statutes or the purpose of ascer-
| tanning the legislative intent regard is to be
had not SO much to the exact phraseology in
which that intention has been expressed, as
/ to the general tenor and scope OF the entire
| legislative scheme embodied in the act" (Sea
| bury VS.. Arthur, % Cal, 142; Knowles vs.
| Yates, 81 cal, 81; People VS.. San Francisco
| 81 CAL. 595 600; Palache vs.. Pacific In
surance Company, AZ Cal. at page 430; City
| OF san Diego VS.. GTannls, n CAL, 5l7; and
| People VS.. Ikelroth. rs Cal, 14l, 143) Apply
| ing this familiar rule OF statutory construc
| ton II Is manifest, nom an entire considers
| tion OF the act in question, that, TO carry oui
''the legislative scheme embodied in the act,
! 1T was the intention OF the Legislature thai
! the Board OF Supervisors should be the motive
| power or machinery for putting and keeping
| that scheme in operation.
The first section of the act makes 1t the duty
| of the Boards of supervisors in the several
| counties in this State in which road districts
| do not now exist "to subdiyide such counties
| into road districts as by law now provided"
and the second, third, fourth, fifth. sixth,
seventh and eighth sections OF the act vest the
Boards of Super visors with full authority fol
the creation OF new districts, for the change oil
boundaries OF old districts and for the con.
solidation oil two or more districts.
By subdivision OF section OF the act the
compensation of road trustees is prescribed
and Is "to be allowed by the Board OF Super
visors" when certain conditions prescribed by
that section are complied with. By section Ia
OF the act the election certificates of persons
elected as road trustees "must, with the oath
OF office OF the person so elected attache &
Board of Supervisors OF the county and be
flied by him IN mis- office. By Subd vision 3 OF
section 1S OF the act reslg ations OF trus tees
must be rendered 10 the Board OF supervisors
OF the county and must be accepted by such
board. By subdivision OF section 20 it is the
duty of the road trustees 10 make annual re-
ports TO the Board OF Supervisors. Section Al
OF the act prohibits any Supervisor from being
interested in any contract made by the Board
of Trustees of road district section AZ OF
the act makes the Board OF Supervisors the
final auditing board foy all demands against
any road district presented 10 the Board oi
Trustees OF such district.
Section 43 makes it penal offense to offer
any valuable thing TO any member of the
Board of Superv vISors or any member of the
Road Truste with intent thereby to infiu-
ence his action in regard to the purchase OF
any property Tor his road district, or, iu case
OF such Supervisor, for any district In
his county, or the making OF any contract by
or on behalf OF or affecting or to be paid out
OF the funds or with the property OF such road
district" Finally, the seventh article OF the
act, including sections Al 10 50. provides for
the "yotIng and issuance OF road district
bonds" and an examination OF that article
shows that the election must be called By the
Road Trustees for that purpose, and that
where The vote is in favor of bonds such fact
shall be certified TO the Board of Supervisors.
whereupon the Board of Supervisors shall
direct the issue of the bonds. shall prescr be
their form and the manner of their sale.
All of these provisions show clearly that
the moving power behind the Board of Trus-
tees is the Board of Supervisors of the county;
and ii was the intention of the Legislature
| that the initiative of putting the act inio
| operation must be taken by The Board of Su-
| pervisors am, therefore, OF the opinion that
| the Board OF Supervisors OF each county in the
State should appoint road trustees to fill the
vacancies in the office which will exist when
the act under consideration goes into eff c.,
subject to the provisions OF section 49, thai
mo person shall be appointed to fill any
vacancy except upon petition signed by al
least ten electors OF the district; provided,
that vacancy may be filled In any case upon
petition signed by majority of the elec .ors
of the district" l am further of the opinion
that at the earliest day possible the validity
of such appointments should be tested in the
courts Respectfully,
W. F. FITZGERALD. Attorney General.
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