Newby v. Bacon

TYLER, P. J.

This is an appeal from a judgment directing the issuance of a writ of mandate.' The ease is presented upon the judgment-roll alone. It appears from the petition for the writ that respondent Newby was, in September, 1921, appointed by Honorable William D.

[338]

Stephens, Governor of the state of California, to act as a notary public in and for the county of Alameda; that pursuant to such appointment and in accordance with the law he took his oath of. office before the county clerk of Alameda County and executed his official bond, which was approved by the Honorable J. S. Koford, a judge of the superior court of said county. Thereafter, and subsequent to such approval, Newby tendered the bond to the county recorder, appellant herein, together with the requisite filing fee, and with the request that the same be recorded. This request was refused. Upon such refusal the petitioner instituted this proceeding and prayed that a writ of mandate issue commanding appellant to forthwith file and enter of record said bond, or appear and show cause why the same should not be filed. Appellant demurred to the petition. The matter came on for hearing and a peremptory writ issued directing appellant to forthwith file the bond for record. This appeal is from such judgment.

In support of the judgment it is contended that the recorder is a purely ministerial officer, and as such it is his duty to record every instrument presented to him for that purpose when accompanied by the proper filing fee. Appellant, on the other hand, seeks to justify his refusal to comply with the order upon the ground that the statute contemplates that the bond should have been approved by the judicial power of the county, and that such requirement is not met with by the act of a single judge, there being more than one in Alameda County. We see no force in appellant’s contention. Section 799 of the Political Code, as originally promulgated by the legislature in 1872, provided that: “Bach notary must execute an official bond in the sum of five thousand dollars, which bond must be approved by the County Judge of his county.”

At that time there was only one judge in each county, who was known as the county judge. Upon this condition being changed, the section was amended in 1880 by the interpolation of the words “judge of the Superior Court” in the place and stead of “County Judge” as it originally stood. Upon. the amendment of the statute the legislature did not see fit to change the language to read “judges” as in the case of the approval of the bonds of county officers. (Sec. 4022, Pol. Code.)