Legerton v. Chambers

JAMES, J.

Petitioner herein was at the general election held in November, 1914, elected to the office of judge of the superior court in the county of Los Angeles for the “short” term; that is, the term intervening between the end of the term of the incumbent who was appointed to fill a vacancy and the commencement of the regular term next succeeding. In this case the short term ended upon the incoming of the newly elected officer, who was other than this petitioner, in January, 1915. The election took place on the 3d of November, and on the sixth day of December following petitioner received from the Secretary of State a commission signed by the Governor. Prior to that date, however, and on the nineteenth day of November, petitioner sought to qualify for the office by taking the oath and filing a copy thereof with the Secretary of State. He did in fact enter upon the duties of the office at that date, and so continued up to the time he received his commission, and afterward during the short term. On the eighteenth day of November, 1914, the board of supervisors of the county of Los Angeles completed the canvass of the returns, and petitioner alleges that said board thereupon “declared your petitioner elected to said office of judge of the superior court.” These facts are set forth in the petition'which was filed herein. The answer as made by the controller in effect raises issues of law, and the matter has been submitted upon the points and authorities filed by petitioner and a brief for respondent.

The two principal questions presented are: 1. Was petitioner, upon the canvassing of the vote as made by the board of supervisors of Los Angeles County, entitled to immediately assume office as an officer

de jure? 2.

If he was not so entitled and because of his assumption of the duties of the office

[603]

he became a

de facto

officer, was he under such circumstances entitled to the salary attached to the office? In many of the cases cited by the petitioner, all, however, from other jurisdictions, it is held that the issuance of a commission is not a necessary prerequisite to the determination of the fact that an officer has been duly elected. Under our statute, however, the various duties to be performed by not only the canvassing boards at the election, but the certifying officers thereafter, are held to be a part of the machinery of the election, until the performance of which there can be no legal determination as to the results. In the case of a superior judge the board of supervisors is without power to issue a certificate of election, because the office is viewed as a state office; the statute expressly excludes the board of supervisors from any such right when it provides that, after election returns have been canvassed, “The county clerk must immediately make out and deliver to such person (except to the person elected superior judge) a certificate of election signed by him, and authenticated with the seal of the superior court.” (Pol. Code, sec. 1284.) Section 1288 of the same code requires each county clerk, in the cases of “officers chosen by the electors of the state at large,