People ex rel. Brooks v. Melony

Baldwin, J. delivered the opinion of the Court Field, C. J. and Cope, J. concurring.

This is a proceeding by quo warranto to test the title to an office. The agreed facts are as follows:

First—That on the seventh day of September, A. D., 1859, there was a general election held in and for the State of California, at which time the relator, Samuel H. Brooks, received a majority of all the votes cast at said election for the office of the Controller of said State.

Second—That said election was duly and legally held on the day last aforesaid, pursuant to law and to the proclamation of the Governor of said State, duly made; and that at said election Milton S. Latham was elected Governor, and John G. Downey, Lieutenant Governor, of said State.

Third—That on the third day of January, 1860, the said relator received a commission from the Governor of the State of California, as Controller for the term of said office prescribed by law, and that a copy of said commission is annexed to and made a part of the complaint.

Fourth—That on the fifth day of January, 1860, the said relator filed his official bond as Controller, in the office of the Secretary of State, and that said bond was duly approved on the same day by the Governor of the State.

Fifth—That on the day last aforesaid, the said relator took the oath of office as Controller, before the Hon. J. G. Baldwin, Associate Justice of the Supreme Court, which said oath was properly indorsed on the said commission, and on the seventh day of January, 1860, a copy .thereof was duly and legally filed in the office of the Secretary of State.

Sixth—That on the seventh day of January, 1860, the said relator notified the said defendant that he had been elected and qualified as Controller of said State, and was prepared to enter on the discharge of the duties of said office, and on the same day made demand on the said defendant to surrender up said office to him.

[61]Seventh—That at the time of said notice and demand, the said defendant was, and still is, in possession of said office, and receiving the salary and emoluments thereof, and that he refused to surrender up said office to the relator at that time.

Eighth—That at the general election held in and for the State of California, in the year 1855, George W. Whitman was duly elected Controller, for the term of said office prescribed by law, and that he duly qualified, and entered on the discharge of the duties of said office, and at the same election J. Neely Johnson was elected Governor, and Robert Anderson, Lieutenant Governor, of said State.