People ex rel. Clough v. Levy

Paterson, J. This is an action in the nature of quo warranto to oust the defendant from the office of judge of the Superior Court in and for the city and county of San Francisco, into which it is alleged he has intruded, and to reinstate the relator therein.

The relator was elected to said office for the term of [619]six years from and after the first Monday of January, 1883. After his election, he duly qualified as such judge, took possession of and held the office until the twenty-eighth day of August, 1885. On the eleventh day of August, 1885, the relator signed and delivered to one McCourtney, his court-room clerk, and instructed him to deliver to the governor, the following paper:—

“ To his Excellency, George Stoneman, Governor of California.

“Dear Sir,—I herewith tender you my resignation as Superior Judge of the city and county of San Francisco, state of California. Failing health will no longer permit me to perform the duties thereof.

“ Respectfully yours,

“ F. M. Clough, Judge."

McCourtney handed the document to Mrs. Clough, who thereafter delivered the same to T. J. Clunie, by whom it was delivered to Governor Stoneman on or about the 28th of August, 1885. Appellant claims that at the time said resignation was signed, and thereafter until it was delivered to the governor, the relator Clough was insane, and that his acts in relation to said resignation are void; and this is the principal ground of contention on this appeal.

The cause was tried before the Superior Court sitting without a jury, and the court found as facts:—

“ 14. That said relator was, on the said eleventh day of August, 1885, and at the time of making and delivering the said resignation, in a fit and proper condition for the proper transaction and understanding of business, and he was at the said time of sound mind and memory.”

“20. That at the time of signing said resignation, said relator well knew the purport and effect of the same, and did voluntarily sign said resignation.”

“ 22. That said relator was at the time of the delivery aforesaid of sound mind, and well able to understand the effect of his said act of delivery.”