People ex rel. Campbell v. Waterman

California Supreme Court Sep 13, 1890 No. No. 14000Published

Before: Fox

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Holding. The court held that a judge elected to a newly created superior court judgeship is entitled to a full six-year term starting from the first Monday after the first day of January following their election, rather than a term synchronized with existing judges.

Issues

Whether the term of a judge elected to a newly created superior court judgeship must expire at the same time as the term of the existing judge of that court.
Whether the first judge elected to a newly created superior court judgeship is entitled to a full six-year term under the constitution.

Disposition. denied

Quotations verified verbatim against the opinion

“whenever a new judgeship is created, by the legislature in any county, the first judge elected to fill the place is entitled to hold the same for the term of six years from the first Monday after the first day of January next succeeding”

“there is nothing in the constitution which requires that the terms of the judges of all the superior courts, or of all the judges of the same superior court, should begin and end at the same time.”

Synopsis

Election — Superior Judge — Vacancy in Term — New Term.—When an election is to be held to fill a vacancy in the term of a superior judge, and such term is to expire on the first day of January succeeding the election, the people will also be required at the same election to elect a judge for the new term, to begin upon the expiration of the term in which the vacancy occurred.

Id. —Creation of Additional Judgeship—Term of New Judge—Mandamus.— A judge of the superior court of San Bernardino County, elected in November, 1888, under an act of the legislature of March 5, 1887, increasing the number of judges of the superior court of San Bernardino County from one to two, and providing that the governor should appoint an additional judge of said court, who should hold office until the first Monday after the first day of January, 1889, and that at the next general election a judge of such superior court should be elected to hold office for the term prescribed by the constitution and the law, is entitled to hold the office for the term of six years from the first Monday after the first day of January next succeeding such election; and mandamus will not lie to compel an election before the expiration of such term of six years, at an election at which a judge is to be chosen for a new term as successor of the former judge.

Fox, J. —This is an application for a writ of mandate against the governor of the state, requiring him, in his forthcoming proclamation for the general election to be holden on the first Tuesday after the first Monday in November next, to call for and order the election of two judges of the superior court in and for the county of San Bernardino, instead of one, as proposed by the governor.

No point is made in this case as to the power of the court to issue its writ for such a purpose against the executive, and in the view we take of the real question involved it is unnecessary for us to consider upon or determine this preliminary question.

The facts briefly stated are these: By the statute and laws under which the superior court in San Bernardino County was originally organized, provision was made for but one judge of that court. Under the law as it thus stood, Hon. James A. Gibson was elected judge for the term commencing on the first Monday in January, 3885, and ending on the first Monday in January, 3891. May 13, 1889, he resigned, when Hon. C. W. C. Bo well, the present incumbent, was appointed. Under the law, that appointment continues until the next general election, which will be in November, in 1890. At that time an election must be held to fill the vacancy created by the resignation of Judge Gibson, for the balance of the nnexpired term for which Judge Gibson was elected. (Const., art. 6, sec. 6.) That term itself, however, expires on the first Monday in January following, so that under the constitution the people will also be required at the same election to elect a judge of the superior court for the full term of six years commencing on the first Monday in January next, in place of the judge who may finish out the term for which Judge Gibson was [29]originally elected, and which term then expires. This is the plain course of proceeding to be pursued, so far as relates to the judgeship originally created under the constitution, for that county.

Section 9 of article 6 of the constitution empowered the legislature at any time, by a two-thirds vote of the members of both houses, to increase or diminish the number of judges of the superior court in any county. Acting under this authority, the legislature did, on March 5, 1887, by an act duly passed, increase the number of judges of the superior court for the county of San Bernardino from one to two, and empowered the governor to appoint an additional judge, to hold office until the first Monday after the first day of January, 1889, and provided that at the “next general election a judge of such superior court should be elected, to hold office for the term prescribed by the constitution and the law. ” The next general election was that one held in November, 1888, at which a judge was elected in accordance with the provisions of said act. The question here relates to the term of his office. Does it expire under “ the constitution and the law ” at the same time with that of the other judge of the same court? or was he elected for the term of six years from and after the first Monday after the first day of January, 1889?

People ex rel. Campbell v. Waterman

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