Crawford v. Dunbar

California Supreme Court Jul 1, 1877 No. No. 5049Published

Before: Wallace

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Holding. The court held that an official record of an oath of office cannot be contradicted by parol evidence, and that votes cast for an ineligible candidate are ineffectual rather than transferable to the next highest candidate.

Issues

Whether parol evidence is admissible to contradict an official record of an oath of office.
Whether a candidate who receives the second-highest number of votes is entitled to office if the plurality winner is ineligible.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“The certificate of the Collector, as made and filed, is the official record of the fact that the oath was administered, and parol evidence is not admissible for the purpose of contradicting this record.”

“His title consists of the record which creates it, and the fact and validity of the title must be determined only by the record.”

“The votes are not less legal votes because given to a person in whose behalf they cannot be counted; and the person who is the next to him on the list of candidates does not receive a plurality of votes because his competitor was ineligible.”

Synopsis

Lucrative Office. — The office of Inspector of Customs in a collection district to which there is annexed a salary of one thousand dollars per annum is a lucrative office within the meaning of sec. 21, art. 4, of the Constitution of this State; and one who holds such office is ineligible to the office of School Superintendent when it is an office of profit.

Civil Office.—The office of School Superintendent of a county is a civil office within the meaning of sec. 21, art. 4, of the Constitution of this State.

Officer de facto. — One who is the incumbent de facto and not de jure of a lucrative office under the United States, is not ineligible to a civil office of profit in this State.

Title to ah Office.—When the title of one to an office consists in written, documents, being his appointment, acceptance, and his oaths of office, which are the record of his title to the office, he will not be permitted by parol evidence to falsify the record for the purpose of showing that he was not an officer de jure, but only an officer de facto.

Election to an Office. — The candidate for an office who does not receive a majority or a plurality of the votes is not elected because the opposing candidate who did receive a majority or plurality of the votes was ineligible.

1. The oral evidence was irrelevant and immaterial, as it did not go to any fact in dispute.

2. The Collector is a sworn officer, and acts under bond, also, for - “the true and faithful discharge” of his official duties. (Revised Statutes of United States, secs. 2616, 2617, 1756-9.)

3. He is authorized to administer oaths to subordinate officers of the Customs. (Statutes at Large U. S. vol. 18, p. 309; Act of February 8th, 1875, sec. 11.) And he has general power to administer oaths in matters appertaining to his office, and to certify such oaths in writing. (Revised Statutes U. S. sec. 2805, et. seg.) The Collector must certify under Ms hand and seal of office to the administration of the oath to a subordinate officer. (Revised Statutes U. S. secs. 2617, 2618.) And the certificate is filed in his office, and with him as its custodian. (Statutes at Large U. S. vol. 18, part 3, p. 309; Act of February 8th, 1875, sec. 11.)

4. The certificate of the Collector, as made and filed, is the official record of the fact that the oath was administered, and parol evidence is not admissible for the purpose of contradicting this record. (Dorland v. McGlynn, 47 Cal. 47; Wells v. Stevens, 2 Gray, 115; Gannon v. Chandler, 30 Me. 152; Crane v. Godfrey, 44 Me. 25; Kelley v. Dresser, 11 Allen, 31; McMicken v. Commonwealth, 58 Pa. 213; Commonwealth v. Slocum, 14 Gray, 395 ; Gardner v. Davis, 15 Pa. 41; Douglass v. McKevine, 19 Conn. 489; Crommet v. Pearson, 6 Shepley, Me. 344; McLain v. Hergaren, 13 Johns. 184; Dolph v. Barney, Sup. Ct. Oregon, Pac. Law Rep., Jan. 25th, 1876; Brown v. Galloway, Peters C. C. 291.)

W. L. Dudley, D. 8. Terry, and F. T. Baldwin, for the Eespondent.

The respondent was not holding a lucrative office under the [39]United States at the time of his election, within the meaning of the constitutional prohibition. The prohibition applies only to officers de jure. (People v. Turner, 20 Cal. 145; Riddle v. County of Bedford, 7 Serg. & R. 386.)

The certificate of Shannon, Collector of Customs, was only prima facie evidence of the fact it recited, and could be disproved by other evidence. (Code of Civil Procedure, sec. 1833; 1 Grreenl. on Ev. secs. 483-4.)

By the Court, Wallace, C. J.: 1. The office of Inspector of Customs at Stockton in the San Francisco Collection District, to which there is annexed a salary of one thousand dollars per annum, is a lucrative office within the meaning of sec. 21, art. 4, of the Constitution of the State, and if the defendant, Dunbar, held that office in September, 1875, then he was ineligible to the office of School Superintendent in the County of San Joaquin, which is a “ civil office of profit under the State,” the salary thereof being $1,500 per annum.

Crawford v. Dunbar

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