People ex rel. R. R. Provines v. Rix

By the Court, Currey, C. J.: Rix was appointed to fill the vacancy in the office of Police Judge of the City and County of San Francisco, occasioned by the death of P. W. Shepheard, who was elected at the judicial election of 1865 to that office. The appointment of Rix was to fill the office for the unexpired term, as provided in section thirty-nine of the Act concerning officers, passed April 22d, 1863. (Laws of 1863, p. 391.)

The term of office of the Police Judge of San Francisco is prescribed by the fifty-seventh section of the Act concerning Courts of justice and judicial officers. (Laws of 1863, [505]p. 341.) By said section it is provided that a Police Judge shall he elected at the special judicial election to be held for the election of Justices of the Supreme Court, and shall hold his office for two years from the first day of January next following the election.

The second section of the Act of the 9th of December, 1865 (Laws of 1865-6, p. 1), provides, In case of a vacancy in the office of Police Judge, the Board of Supervisors of said city and coupty shall have power to appoint a suitable person, who is a resident and legal voter thereof, to fill the vacancy, who shall take the constitutional oath of office and enter upon his duties immediately. The person so appointed shall hold the office until a Police Judge shall he elected at the next judicial election and qualified according to law.

The Act of 1865, considered in pari materia with the Act of 1863 above referred to, does not, in our judgment, authorize the relator to enter upon the office of Police Judge, in virtue of his election, before the commencement of the term prescribed by the fifty-seventh section of the Act concerning Courts of justice and judicial officers.

Judgment of the District Court against defendant, Rix, is hereby reversed.

Neither Mr. Justice Sawyer nor Mr. Justice Sanderson expressed an opinion.