People ex rel. Finigan v. Perkins

Gibson, C. On the nineteenth day of January, 1887, Governor Bartlett issued a commission to the relator, appointing him a director of the state board of agriculture for the term of four years, which began on February 1st of the same year, as prescribed by section 4 of the act of 1880. (Stats. Cal. 1880, p. 49.) The commission was forwarded from the capítol at Sacramento to San Francisco by Wells, Fargo, & Co.’s express, addressed to the relator, at the latter place, but was not received by him until the seventeenth day of February, 1887, prior to which time he had no notice of his appointment or the issuance of the commission. The day after he received the commission he qualified by taking and subscribing the oath of office, which was filed the next day, —February 19, 1887,—in the office of the secretary of state. Upon the filing of his official oath he immediately entered into and commenced to exercise the functions of the office, and continued to hold and discharge the duties of such office until he was ousted therefrom by the defendant Dana Perkins, on the twenty-seventh day' of January, 1888, who claimed the office by virtue of a commission issued to him by Governor Waterman on the third day of January, 1888, and under which he had duly qualified.

To determine the defendant’s right to the office, the relator caused this action to be prosecuted, which resulted in a judgment removing the defendant from and letting the relator into the office. Thereupon the defendant appealed.

[511]The main question to be determined is, whether the relator, in not qualifying under the commission until nearly thirty days after it was issued to him, forfeited his right to the office under sections 907 and 997 of the Political Code.

The first of the sections referred to provides that when a different time is not prescribed, the oath of office musí be taken, subscribed, and filed within ten days after the officer has notice of his election or appointment, or when no such notice has been given, then within fifteen days from the commencement of his term of office; and the other section provides that an office becomes vacant upon the happening of certain events, one of which is the refusal or neglect of one who is elected or appointed to an office to file his official oath or bond within the time prescribed.

These provisions of the law are mandatory. The official oath or bond must be filed within the prescribed time, or the right to the office becomes forfeited. (People v. Taylor, 57 Cal. 620; Payne v. San Francisco, 3 Cal. 122; People v. Brite, 55 Cal. 79; Hull v. Superior Court, 63 Cal. 174; People v. Hartwell, 67 Cal. 11. See also Ball v. Kenfield, 55 Cal. 320, and People v. Perry, 79 Cal. 105.)