People ex rel. Attorney Gen. v. Phœnix
Before: Murray
Synopsis
. Strictly speaking, there can be no vacancy in the office of sheriff, caused by the death, removal or resignation of the incumbent; for upon the happening of such an event the coroner, by operation of law, becomes sheriff.
The coroner only holds the office of sheriff ex officio, until the appointment of a new sheriff by the board of supervisors.
A general statute, controlled in some of its provisions by a subsequent special statute, is revived by the amendment of the latter, intended to give effect to the former; and though the first statute gave jurisdiction to a Court which could not constitutionally exercise it, the Act becomes effectual by an amendment, passed still later, transferring the jurisdiction to the proper body.
The opinion of the Court was delivered by Mr. Chief Justice Murray. Mr. Justice Heydenfeldt and Mr. Justice Terry concurred.
This was an information, in the nature of a quo warranto, filed by [93]the Attorney General against the defendant, for usurping the office of sheriff of Amador county.
The office had become vacant, and the question involved is, whether the coroner of the county succeeds, or the board of supervisors have power to appoint a successor. The solution of this question must turn entirely upon the construction of the various statutes on the subject.
The forty-seventh section of an Act entitled “An Act to supply vacancies in office,” (passed April 28,1851, page 247, Compiled Laws,) provides, “ When any vacancy shall occur in the office of district attorney, county clerk, or any other county offices, except of the county judge, the Court of Sessions of the county shall appoint some suitable person to fill such vacancy until the next general election.”
On the 29th April, 1851, by the fifty-fifth section of an Act concerning sheriffs, page 720 of the Compiled Laws, it was provided that, “in case of a vacancy in the office of sheriff, by death, resignation, or otherwise, the powers and duty of the sheriff shall devolve upon the coroner of the county, and shall be executed by him until a new sheriff shall be elected and qualified.”
Were these the only provisions of law upon the subject, it would necessarily result that the Act of April 29, 1851, being subsequent in point of time to the Act of April 28th, and being special in its character, would control the general provisions of the latter Act. In that event the two acts would be construed in pari materia, and the consequent deduction must follow, that the Court of Sessions were authorized to supply all vacancies in the county offices, except in the office of county judge and sheriff, the latter of which must be filled by succession of the coroner. But the second section, first quoted, has been amended by the second section of an Act passed May 17, 1853, page 773, Compiled Laws, which provides that “ the fifty-fifth section of an Act entitled an Act concerning Sheriffs, etc., is amended so as to read as follows :” In case of a vacancy in the office of sheriff, the powers and duty shall devolve upon the coroner of the county, and be executed by him until a new sheriff shall be appointed or elected, etc.”
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