People ex rel. Attorney Gen. v. Brown

Baldwin, J. delivered the opinion of the Court Cope, J. concurring.

This is a contest for the office of District Attorney for San Francisco county.

W. K. Osborne was elected to this office at the general election in September, 1857, for the term of two years. He died in March, 1858. The Board of Supervisors appointed Mr. Brown to supply the vacancy. [442]At the general election, (September, 1858) Brown was elected to the office, and at the next general election, (September, 1859) was again elected. At the general election of this year, (November, 1860) Porter, the claimant of the office, was elected.

The case turns on the proper construction of the Consolidation Act, applicable to the city and county of San Francisco, in connection with preexisting laws touching elections for this office.

The Constitution does not fix the term of this office, but merely (Art. 6, sec. 7) provides that the Legislature shall provide for the election by the people of District Attorneys, and shall fix by law the duties and compensation of these officers. The Act of April, 1851, (Wood’s Dig. 64) provides that “ there shall be a District Attorney in each county, who shall be elected by the electors of the county, at the general election of the present year, and at the general election every two years thereafter, and shall enter upon his duties on the first Monday of October subsequent to his election.” By the Act of 1855, (Wood’s Dig. 561, sec. 46) “when any vacancy shall exist in the office of District Attorney, etc., the Board of Supervisors for the county, etc., shall appoint some suitable person to fill the vacancy until the next general election,” and by section forty-nine of the same act, it is provided “ that whenever an election to fill a vacancy is had, the person chosen shall hold office for the balance of the term of the person whose place he is elected to fill.”

It would thus appear that the election of Brown in 1859 was regular, and that the effect of it would be to invest him with the office until 1861, unless some special provision altering the general law exists. This is conceded; but the respondent seeks to show that tills provision is found in the Consolidation Act of 1856, amended in 1857. The ninth section of this act (Statutes of 1856, 148) is that mainly relied upon as establishing a new rule in respect to the filling of vacancies, and as operating a repeal of the general law, so far as the city and county of San Francisco is concerned. That section is in these words: “ Whenever vacancies occur in any elective office of the said city and county, and provision is not otherwise made, in this or some other act, for filling the same until the next election, the Board of Supervisors shall appoint a person to discharge the duties of such office until the next election, when the vacancy shall be filled by election for the term, excepting vacancies in the office of Dock-Masters, which vacancies shall be filled by appointments by the Governor.”