Conger v. Gilmer

By the Court, Sanderson, J.: This is an action brought by the Attorney-General, under the provisions of the fifth chapter of the Practice Act, to determine the right or title to the office of Justice of the Peace for the City of Sacramento, as between the relator, Thomas Conger, and the defendant, Thomas W. Gilmer. The relator and the defendant both claim title to the office under and by virtue of an appointment made by the Board of Supervisors of Sacramento County to fill a vacancy occasioned by the death of James Coggins, who had been elected to the office in question at the judicial election in 1865, and was holding it at the time of his death.

The case is as follows: The office having become vacant by the death of Coggins, the Board of Supervisors, at a regular [77]session, held at the Court House on the 4th of April, 1866, proceeded to fill the vacancy. Three persons were put in nomination, namely: Joseph Shaw, A. A. Wood and the relator, Thomas Conger. On the eighth ballot Conger received a majority of all the votes cast and was declared elected by the President of the Board. Thereafter the amount of Conger’s official bond was fixed at five thousand dollars. On the next day Conger presented his bond and the same was referred to the Finance Committee. On the next day a resolution was offered by Supervisor Beckman to the effect that the appointment of the relator be reconsidered and set aside and that the Clerk of the Board be directed not to issue any certificate to Conger. This resolution was adopted. The Board then proceeded and filled the vacancy by the appointment of the defendant, who subsequently received a certificate of his appointment, qualified and entered into the possession of the office. Subsequently the relator instituted proceedings in the District Court of the Sixth Judicial District by mandamus against the Board to obtain a certificate of his appointment, which resulted in his favor, and having qualified, he demanded the office from the defendant, who refused to surrender. Hence this action. The relator was successful in the Court below and the defendant has brought the case here.

The only question involved in the case is whether the Board of Supervisors had the power which they exercised, or attempted to exercise, on the 6th of April, to reconsider and set aside their previous action in relation to the appointment of the relator, and direct their clerk not to issue his commission. If they had, their subsequent appointment of the defendant was valid, and he having duly qualified is now rightfully in possession of the office. Whether they had or not depends upon the nature of the power which is vested in them to fill vacancies—whether the power is that of “ appointment ” or “ election,” as contradistinguished from each other, and as to that question we think there is little room for controversy. The power to fill vacancies, whether vested in the Governor, Boards of Supervisors or other public functionaries,