People Ex Rel. Hardacre v. Davidson

McLAUGHLIN, J.

This action was brought to oust the defendants from the office of constables of O’Neal township, in San Joaquin county. Section 56 of the County Government Act, as amended in 1901 (Stats. 1901, p. 685, c. 234), provides that in townships having a population of less than six thousand persons there shall be but one constable. Prior to that amendment there were two constables in said township. At no time prior to the general election held November 4, 1902, did the population of 0 ’Neal township equal six thousand persons. Notwithstanding this fact, the board of supervisors of said county issued a proclamation calling for the election of two constables for this township as of yore. Ballots were printed directing the voters to vote for two, and the defendants Davidson and Peters were declared elected upon a canvass of the returns. Certificates of éleetion were issued to them and they qualified, and in January, 1903, entered upon the discharge of the duties pertaining to said office. At the time of such election defendants Davidson and Hersom were duly elected and qualified constables of said township. Davidson was re-elected, but Hersom was not a candidate. For the purposes of this appeal, it is admitted that the election was void and that the certificates of election issued to Davidson and Peters amounted to nothing. The court found that appellant Hersom, “on or about the seventh day of January, 1903, surrendered and abandoned the office of constable of said township to defendant Frank Peters upon the apparent election of said Peters to said office at such general election held on November 4, 1902, and thereafter accepted from said Peters an appointment as deputy constable, under said Peters, for said township, took his oath of office as such deputy and filed the same in the county clerk’s office of said county, and thereafter acted as such deputy for Frank Peters.” As a conclusion of law it was recited that by reason of such surrender and abandonment appellant was not entitled to hold and did not hold such office. The sufficiency of the evidence to support the

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finding is assailed, and it is claimed that the conclusion is not justified by the finding.

The evidence is entirely sufficient to support the finding. True, there is a slight conflict, but there is some evidence to sustain the finding, and under such circumstances it cannot be disturbed. Appellant vacated the office, gave Peters his badge, pistol, and handcuffs, acquiesced in Peters’ desire to appoint him a deputy, and on January 7, 1903, took the oath as such deputy, and thereafter continued to act as such. This, to my mind, conclusively shows a surrender and abandonment, for a man claiming to be or assuming to act as principal would hardly accept a deputyship under his rival.