People ex rel. Rynerson v. Kelsey
Before: Speague
Synopsis
Certificate of Election to ex officio Office.—It is not essential to the right of entry on the discharge of the duties of an ex officio office, that the incumbent should receive a separate certificate of election thereto, or take therefor a separate oath of office, when not specially so required by the Act creating or regulating such office.
Constitutional Power of Legislature.—The Legislature has the constitutional power by enactment to divest an officer of an ex officio office to which he had been elected and duly qualified, by a repeal of the law under which he became invested therewith, provided, where such office be created under the Constitution, such repeal does not in effect abolish such office.
Idem.—In such case, however, this power does not extend to the transfer of an ex officio office which, under the Constitution, is required to be filled by election, to the incumbent of another office who has not been elected to such ex officio office.
Idem.—The clause, to wit: “Assessors and Collectors of town, county, and State taxes shall be elected by the qualified electors of the district, county or town in which the property taxed for State, county or town purposes is situated,” contained in section thirteen of Article XI of the Constitution, is imperative and mandatory, and restricts the power of the Legislature to a particular mode of providing such Assessors and Collectors in the first instance, subject to such mode of filling vacancies which may be occasioned by the death, resignation, or other legal disability of the incumbent as the Constitution has, and statute law may provide.
Idem.—The Legislature may by law devolve the office and duties of Tax Collector upon the incumbent of any other elective office, but such law must precede the election of such officer, and his election must be by the qualified electors of the Tax Collector's District.
Idem—Act of April 2d, 1866, respecting Office of Tax Collector of San Joaquin County.—The Act entitled “An Act making the County Treasurer of San Joaquin County ex officio Tax Collector,” passed April 2d, 1866, was not designed to fill a vacancy in the office of Tax Collector, but it was to make the Treasurer, instead of the Sheriff, of San Joaquin County Tax Collector. In so far as the Act provides for the transfer of said office to take place before an election of such Treasurer occurs, it is unconstitutional and void.
By the Court, Speague, J.: This is an action in the nature of quo warranto to inquire into the rights of the respective parties to hold and discharge the duties of the office of Tax Colleeter in and for the County of San Joaquin.
The appellant Kynerson, at the general election held on September 6th, 1865, was elected Sheriff of San Joaquin County, and after receiving his certificate of election to said office, duly qualified for the performance of the duties of' the office of . Sheriff of said county. At the time of the election and "" qualification of appellant, as such Sheriff, the statute of the State-devolved upon the Sheriff of San Joaquin County the [473]duties of Tax Collector of the county. Appellant did not receive any separate certificate of election as Tax Collector of the county, hut prior to his entering upon his duties as Sheriff, to wit: on the 20th day of February, 1866, he filed his bond as Tax Collector, which was duly approved, and on the first Monday of March, 1866, he entered upon the duties of the office of Sheriff of said county, and ex officio, as Sheriff, discharged the duties of .Tax Collector of the county, without having taken any oath of office, other than that as Sheriff, until the first Monday of March, 1867. The respondent was elected Treasurer of San Joaquin County at the general election in 1865, at the same time appellant was elected Sheriff, and entered upon the duties of his office, as such Treasurer, on the first Monday of March, 1866. On the 2d day of April, 1866, an Act of the Legislature was passed and approved, making the Treasurer of San Joaquin County ex officio Tax Collector of said county, and providing that the Act should “take effect and be in force from and after the first Monday of March, 1867.” Prior to the first Monday of March, 1867, respondent, who then was, and since the first Monday of March, 1866, had been, and still is the duly elected, qualified and acting Treasurer of San Joaquin County, filed a bond as Tax Collector of the county, with his official oath as such Collector indorsed thereon; and, on the first Monday of March, 1867, entered upon the duties of the office, excluding the appellant therefrom, and ever since has continued to hold it and to discharge the duties thereof to the exclusion of appellant.
The record discloses that the case was tried by the Court below, without a jury, and upon the very full and explicit findings of fact the Court gave judgment in favor of respondent and against relator for costs, and the case now comes to this Court upon the judgment roll, on appeal by relator.
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