People v. Taylor

Sharpstein, J.: At the annual election held in September, 1877, one Robert Patterson was elected sheriff of Mono County for the term of two years, from the first Monday of March, 1878. He duly qualified and entered upon the duties of the office, which he & continued to discharge until the 29th day of August, 1878, when he died; and on the 5th of September, 1878, the Board of Supervisors of said county duly appointed the appellant herein sheriff of said county, who duly qualified and entered upon the discharge of the duties of said office, which he still continues to hold.

[621]On the 3rd day of September, 1879, the relator Showers was duly elected sheriff of said county, and a certificate thereof was duly issued to him on or about the 20th day of September, 1879. Before the first Monday of March, 1880, he filed his oath of office and official bond. Neither said oath or bond was filed within ten days after he received notice of his election, the time prescribed by law for filing them. On the 4th of March, 1880, the Board of Supervisors, deeming said office vacant, appointed Showers, the relator, to fill said vacancy; and within ten days after receiving notice thereof, he duly qualified by filing the oath of office and his official bond, and demanded of appellant to be let into the possession of the office under said appointment, and appellant refused to comply with said demand. Whereupon the Attorney-General, upon the relation of Showers, brought an action against the appellant to have him ousted from, and the relator admitted into, said office. Judgment was rendered against the appellant, and in favor of the respondent, and from that judgment this appeal was taken.

The arguments of counsel have been mainly upon the question whether, in contemplation of law, a vacancy existed in the office at the time when the respondent claims that he was appointed by the Board of Supervisors.

It is urged, on behalf of the appellant, that he was appointed to hold the office during the unexpired term of his predecessor, and until his successor was duly elected and qualified; and that the failure of the person duly elected to qualify did not create a vacancy in the office. It is conceded that the relator, by reason of his failure to file his oath of office and official bond within ten days after receiving notice of his election, is not, by virtue of said election, entitled to the office. (Pol. Code, §§ 907, 947, 996.) The decision of this case, therefore, hinges upon the question of the validity of the appointment of the relator by the Board of Supervisors, and the validity of that appointment depends upon there being a vacancy in the office when it was made.