People ex rel. Westbrook v. Rosborough

Baldwin, J. delivered the following opinion:

This proceeding of quo warranto was brought to determine the title of the defendant to the office of Judge of the County Court of Siskiyou.

The county was organized by Act of Legislature, passed March '22, 1852. By this Act, an election was directed to be held for 'County Offices onLhe first Monday of May of the same year, at which election were to be chosen one County Judge, one District Attorney, one County Clerk, one Sheriff, etc. The 15th Section .provides that the County Judge chosen under this Act shall hold his office for two years; the other officers elected shall hold their respective offices for two years, and until their successors .are elected and qualified. “ The successors of the officers elected ■under this Act shall be chosen at the general election established! ■by law, which takes place next preceding the expiration of theirl ^respective terms.” I

[187]At the election in May, 1852, W. A. Robertson was chosen Judge of the county. He held the office until April, 1853, when he resigned. Westbrook, the relator, was then appointed and commissioned by the Governor. At the general election of that year, the relator was returned as elected. But the Governor failed to make proclamation of the fact that the vacancy in this office was to bo filled at this election.

At the general election in September, 1855, the Respondent was voted for, and received a majority of votes cast for the office, and was returned as elected. In May, 1856, Westbrook, who had been in the possession of the office from the time of his appointment bj^ the Governor, resigned, and Respondent claiming by virtue of his election in 1855, qualified and took possession of it.

At the general election of September, 1857, Westbrook again was returned as elected, and now claims as against Rosborough, who, since May, 1856, has been in the exorcise of the office.

We hold, in The People ex rel. Templeton v. Fox, at the October Term, that the Constitution fixes the period of tenure of a Judge of the county, to wit: at four years; and that the Legislature may prescribe the period of commencement of the term, as also the time of the election. The Act of the Legislature organizing the county of Siskiyou, therefore, was void in that part of it which limited the period to two years’ tenure; but this does not hurt that part which was constitutional, and the election held under that Act vested the title to the office in the incumbent for four years. Before that time he resigned. This left the office vacant. The Governor, might fill the vacancy, but the appointee would only hold, by virtue of the appointment, until the next general election, or, at most, until the qualification of the person to be then chosen by the people. But as the election for this vacancy was a special election, as wo hold in People v. Porter, People ex rel. McKune v. Weller, and People v. Martin, the Governor’s proclamation was an essential condition to its validity. Ho such proclamation was made. It is true, the proclamation called the attention of the County Judges to the 3d Section of an Act “to regulate elections,” etc. from which it will be seen that all vacancies which are about to occur in office by the expiration of the full term thereof, shall be supplied at the general election. But