People ex rel. McDonald v. Bush

Rhodes, C. J., delivered tbe opinion of tbe Court, Crockett, J., and Temple, J., concurring:

It appears that proceedings were instituted in tbe District Court for Los Angeles County, against three of tbe [345]Supervisors of San -Diego County, for tbe purpose of removing tbem from office, under tbe provisions of tbe Act of March 14, 1853. (Stats. 1853, p. 40. and Hit. Dig., Section 4,778.) Tbe second section of tbe Act is as follows: “If any person now bolding, or wbo shall hereafter bold, any office in this State, wbo shall refuse or n«glect to perform any official act, in manner and form as now prescribed, or as may hereafter be prescribed by law, shall in like manner be deprived of office.” Tbe District Court rendered judgment removing tbe Supervisors from office; and notice of tbe judgment having been served on tbe County Judge of San Diego County, be made an order appointing three persons to fill tbe vacancies in office occasioned by tbe judgment. He did not act by virtue of any authority conferred on him by tbe Act above mentioned, for that Act confers tbe power of appointment, in case of such removal from office, upon tbe Governor; but be claims to have acted under tbe provisions of Section 45 of tbe Revenue Act of 1857. Tbe relator states tbe election and qualification of himself and tbe other Supervisors wbo were removed from office, and tbe order of tbe County Judge appointing tbe persons therein named, in tbe place of those wbo were removed from office; and alleges that those' persons have respectively taken upon themselves tbe duties of tbe office of Supervisor, etc., and prays that “ tbe interests of tbe people of California may be protected herein; that a writ of certiorari and mandamus may issue;” that tbe proceedings of tbe County Judge may be reviewed and declared void, and that the appointees ma}’be ordered to desist from all further proceedings as Supervisors. A writ of certiorari was issued to tbe County Judge, and tbe County Clerk has returned tbe order appointing tbe persons therein named as Supervisors, in place of those who were removed by tbe District Court for Los Angeles County, but does not certify that tbe order is a full and complete transcript of the record in bis office, in tbe matter of tbe appointment of such persons as Supervisors.

However desirable it may be that tbe action of tbe County Judge should be reviewed, and that tbe question of [346]