People v. Campbell
Before: Murray
Synopsis
Appeal from the Fourth Judicial District.
The relator filed his petition and affidavit in the District Court, praying an alternative mandate to the respondents, (the former being county judge, and the latter county clerk of the county of San Francisco,) requiring them to grant to the relator the certificate of his election as one of the associate justices of the Court of Sessions, pursuant to the 64th section of the act concerning courts of justice. The Court awarded the writ; which recited the petition, and directed the respondents to give the certificate, or show cause, &c. The respondents returned for answer, that the matters in the petition and affidavit were insufficient to warrant them in giving the certificate prayed for. The Court decided for the respondents; and gave judgment against the relator for costs, from which this appeal was brought. The facts sufficiently appear in the opinion of the Court. The county judge, after the failure of the justices to elect in October, had, at each term of the Court of Sessions, appointed two associates.
Justice Murray delivered the opinion of the Court. This was an application to the Court below for a mandamus, to compel [136]Alexander Campbell, Judge, and John E. Addison, clerk of the county of San Francisco, to certify the election of the relator as associate justice of the Court of Sessions.
The 64th section of the “Act concerning courts of justice,” reads as follows: “ The associate justices of the Court of Sessions shall be chosen by the justices of the peace of the county. The county judge shall convene at the county seat on the first Monday of October, in the year one thousand eight hundred and fifty-one, and on the first Monday of October in every year thereafter, the persons elected as justices of the peace of the county at the last preceding election; and they, after being qualified, and filing their respective bonds, as such justices, as required by law, shall elect by ballot two of their number as associate justices of the Court of Sessions. The county judge shall preside over the convention, and the county clerk shall be its clerk. A majority of the persons who have qualified as justices of the peace of the county, shall form a quorum for the purpose of the election. A minute of the proceedings of the convention shall be entered in the record of the Court of Sessions. A certificate of election shall be given by the county judge and clerk, under the seal of the Court of Sessions, to the persons who receive a majority of all the votes cast.”
The record shows that the justices met in convention on the first Monday of October, in pursuance of notice from the county judge; but were unable to make an election. Afterwards, three of them withdrew, or absented themselves from the convention, whereupon there being no quorum, the county judge declared the convention adjourned sine die, against the protest of the remaining justices; and appointed two of the justices associate justices for the then term of the Court. On the 6th of January, four’ of the justices served notice on the county judge and the two other justices, that they would meet on the following day, at a certain hour and place, to elect associate justices of the Court of Sessions. The county judge and clerk refused to be present at this meeting. The four justices, in the absence of the judge and clerk, proceeded to appoint a clerk and chairman, and ballot for associate justices; which resulted in the election of the relator.
It is contended that the convention must meet and elect on the [137]
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