The San Francisco call., 1908-10-03
NYE Wins SUIT
TO HOLDOFFICE
OF CONTROLLER
MattisOn Loses in Effort to
WreSt Position From Par
dee's Appointee
Appeal Court Holds Gillett Had
No Authority to 0ust
Incumbent
Decision Ends Litigation Over
Office Which Has Continued
More Than Two Years
SPECIAL DISPATCH TO THE CALL

SPECIAL DISPATCH TO THE CALL
SACRAMENTO, Oct. "A. B.
Nye has won his suit against Frank
Mattison for the Office of state con-
troller. The third district court of
appeal this afternoon decided the case
in Nye's favor. The opinion was writ
ten by Justice A. G. Burnett and con-
CURED in by Justices Hart and Chip
man.
Nye was appointed state controller
to fill the vacancy caused by the death
of E. P. Colgan. The appointment
was made by Governor Pardee at the
expiration of his term. When Gov
ernor Gillett took office he appointed
Frank Mattison to the position, claim
ing that Nye had not been legally ap-
pointed.
Mattison attempted to take the Of
fee. but Nye would not give it up.
Mattison then brought suit in the supe-
rior court of this county The case
was tried before Superior Judge Charles
Nye's favor Mattison then appealed
to the higher tribunal The litigation
over the Office has been going on for
two years.
In his opinion Justice Burnett says:
"As stated by respondent these two
questions arise upon this appeal:
1. Did vacancy in the office ever
occur after the appointment of re-
spondent on November %, 1906?
?. If d vacancy occurred, did the COM
mission issued to respondent on Janu-
ary 7th fill the vacancy?
1t is his contention Cd that va
cancy in the office occurred on the
death of Colgan, and as Nye was ad-
mittedly appointed to fill the vacancy,
the controller thus appointed holds
office until his successor shall be elected
and qualified. Therefore it is insisted
that. as no election of controller has
taken place since said appointment, no
other vacancy has occurred.
If the term given respondent by
the first commission expired so that
new appointment could thereafter be
made, said first commission expired at
such time that the second appointment
Of January Z, 1907. by Governor Par
dee. entitled respondent to a new term.
Appellant maintains Cd that there
We're two distinct terms for which said
Colgan had been elected; CD That the
the first term OF Colgan only; CD That
whatever force there might be in the
words Of Colgans first term until his
successor is elected and qualified could
only apply to Colgan himself had he
lived until the regular expiration of
his term, which would have been Janu-
airy Z, 1907. 1t could not apply to Nye,
as he was not elected under the con-
Stitution. (4) That the second commits
sion to Nye, issued January Z, 1907,
was void on two grounds-(A) there
was no existing vacancy; (B) there is
no power to anticipate a vacancy, but.
on the contrary, such power is mega
tived.
Governor Pardee had no right of ap-
pointment beyond the legal limits of
his own term, which ended at mid
night on January z, 1907
The trial court agreed with the views
of respondent which are epitomized in
the foregoing statement of his position
as to the scope and effect of each OF
said commissions.
After citing the law on which Nye
bases his claim, Justice Burnett says:
ITO appreciate the significance of re-
spondent's attempted application of the
foregoing provisions to the present
situation, the following conceded facts
must be regarded:
The controversy involves consti
tutional office; vacancy was created
by the death of Colgan; respondent
was regularly appointed to fill said
vacancy; the constitution does not ex
pressly limit said appointment to the
term of four years, within which the
appointment was made; and since said
appointment there had been no cleo
tion of a successor to said Nye."