People ex rel. Jacobs v. Murray

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

This is a claim by the relator to the office of superintendent of the city cemetery of the city and county of Sacramento. The facts arise on the complaint, and the question of their sufficiency was raised by demurrer, which was overruled below, and judgment rendered for plaintiff—from which defendant now appeals.

On the eighth of January, 1858, the defendant was appointed to this office by the Board of Supervisors, under an ordinance of that Board, passed on the twenty-third of June, 1858. The second section of the ordinance is as follows: “ The Board of Supervisors shall appoint a suitable and competent person to superintend said cemetery, under direction of the cemetery committee, annually, in the month of October, who shall hold office for the term of one year, unless removed by a two-third vote. The Board of Supervisors shall appoint a superintendent at their first meeting after the passage and approval of this ordinance, who shall hold office until October next, and until his successor is appointed and qualified. No sexton or undertaker shall be appointed to this office, unless he surrender to the city all records or [223]accounts of interments in his possession or under his control, or a sworn copy thereof, which shall be done before his official bond be approved.

“ The Superintendent shall execute a bond approved by the Board of Supervisors, with two or more sureties, in the penal sum of $3,000, conditioned for the faithful performance of the duties imposed, or which may be imposed upon him by law or ordinance.”

The incumbent held over after October, and until December, 1859, there having been no election or appointment by the Board until that time, when the Board of Supervisors proceeded to elect the respondent. The mere failure to elect in October did not exhaust the power of the electoral body. The time mentioned is not of the essence of the power; it is a mere directory provision, which ought to have been followed according to the law; but the omission to pursue which, is not fatal; for the rule is general that, when time is prescribed to a public body in the exercise of a function in which the public is concerned, the period designated is not of the essence of the authority, but is a mere directory provision. (See 2 Cal. 135.)

After the lapse of the period prescribed for the election—in October, 1858—Murray was a mere locum tenens, authorized to hold only until a successor was legally appointed; the election in December was a legal act, whereby the office could be filled; and the selection of the appointee, and his qualification, put an end to the right of the former incumbent to hold, and invested the relator with the title to the office.