People ex rel. Wicks v. Jones

Norton, J. delivered the opinion of the Court—-Field, C. J. and Cope, J. concurring. This action is brought under the provisions of the Practice Act concerning actions for the usurpation of an office or franchise, to determine the right to the office of District Attorney of Sonoma county. The appellant’s counsel makes three objections to the judgment:

1st. It is objected, that inasmuch as the defendant entered into the office by virtue of a certificate of election, he entered lawfully, and is not an “ intruder ” or “ usurper,” or one who “ unlawfully holds or exercises” the office, and hence is not hable to be proceeded against by virtue of section three hundred and ten of the Practice Act. The certificate of election, however, is only prima facie evidence of the defendant’s right to the office. The real right or title to the office comes from the will of the voters, as expressed at the election. If the office was in fact given by the voters to another, the possession by the defendant of the certificate affords him, at most, but a color of title, and does not invest him with the right which belongs to the other. (Magee v. The Board of Supervisors of the county of Calaveras, 10 Cal. 376.) If he has not the right and the real title, he holds unlawfully. [54]■2d. It is objected, that the complaint does not allege, nor does the Judge find that Salt Point was a “ precinct ” at which an election could have been held. The complaint avers that at the general election of 1861, an election for the office of District Attorney of the county of Sonoma was held in that county, and that Wicks was, by the greatest number of votes cast in said county, elected District Attorney. The answer denies that Wicks was elected. The Court finds that such an election was held, and that at such election Wicks received the greatest number of votes cast in the county for District Attorney. The right to the office depends upon the majority of the votes given in the county, and the allegations of the complaint and the findings of the Court upon this point are sufficient to sustain the judgment. But the fact that Salt Point was an election precinct sufficiently appears, both by the averments of the complaint and the findings of the Court. After the averments showing the election of Wicks above mentioned, the complaint proceeds to make certain statements showing how it occurred that the certificate was given to Jones, and for this purpose avers that when the board of canvassers proceeded to canvass the votes, it was discovered “ that the election returns of the election held in Salt Point township, at the precinct therein,” were irregular, and afterwards frequently refers to the said election held in said township, and to the precinct in said township. The answer denies that “ any election was legally held at Salt Point precinct, in the said county of Sonoma,” and afterwards, in specifying certain proceedings claimed to be irregularities, rendering the election void, refers to said election as occurring at said township or precinct, without distinction. The complaint and answer in various places uses the word “ township ” and “ precinct ” as synonymous. The Court finds that an election was held at Salt Point township, and in the findings uses the words “ township ” and “ precinct ” as synonymous. The statute (Woods’ Dig. art. 2125) provides that there shall be a precinct for holding elections in each township, designated by the Board of Supervisors. Mo objection being taken by demurrer or otherwise on this ground, and the statute requiring that there shall be an election precinct in each township, and the words township and precinct being used throughout the pleadings