Ward v. Marshall

De Haven, J. — The plaintiff was a justice of the peace within the county of Solano, and on April 29, 1889, was accused by the grand jury of that county of willful misconduct in office. He was tried upon this accusation? and convicted; and on June 17, 1889, the superior court made and entered its judgment in the proceeding, removing him from his office. In December following the plaintiff took an appeal to this court from that judgment, and on September 10, 1890, the judgment was reversed. One of the grounds for the reversal was, that the accusation against plaintiff did not state facts sufficient to authorize the judgment. (People v. Ward, 85 Cal. 585.) On July 22, 1889, the board of supervisors of the county appointed one Parker to the office from which plaintiff had been removed by the judgment of the superior court. Parker qualified and discharged the duties of such office until the judgment removing plaintiff was reversed by this court, and the county paid to him the amount of the salary of such office during that period.

The defendant here is the auditor of Solano County, and this is a proceeding to compel him to draw his warrant on the treasurer of that county, in favor of plaintiff, for the salary attaching to the' office referred to, between the date of the judgment of the superior court removing plaintiff therefrom and the reversal of that judgment by this court.

The superior court gave judgment in favor of defendant, and the plaintiff appeals.

It will be seen from the foregoing statement of facts that the sole question for decision here is, whether appellant is entitled to. the salary of the office to which he was elected, and for which he had duly qualified, during the time he was suspended from the performance of its duties by the erroneous judgment of the superior court.

It is claimed by respondent that under section 770 of [158]the Penal Code, which provides for an appeal from a judgment of removal from office, this question must be answered in the negative. That section is as follows: “ From the judgment of removal an appeal may be taken to the supreme court, in the same manner as from a judgment in a civil action; but until such judgment is reversed, the defendant is suspended from his office. Pending the appeal, the office must be filled as in case of a vacancy.” This section does very clearly provide that until the judgment of removal is reversed the defendant in the proceeding is suspended from his office, and that pending the appeal the office must be filled as in case of a vacancy, but there is nothing in this provision inconsistent with the right of such officer to receive the salary attached to his office if the final judgment in the proceeding shall be in his favor. The section must be construed as a whole, and the first sentence thereof which gives to a defendant in such a proceeding the right to appeal from the judgment must be allowed to accomplish its obvious purpose. Nothing can be clearer than that the legislature by this provision in-' tended that the rights of a defendant in such a proceeding—his right to hold the office and receive its emoluments — should not be finally determined against him by the judgment of the superior court; and the right of appeal given by this section, in the absence of a clear and explicit declaration to the contrary, must be held to secure to a defendant, if successful upon such appeal, the usual results which as between the parties to it flow from the reversal of a judgment, to wit, the restoration of all rights which had been taken from him by such erroneous judgment. The effect of a reversal of a judgment is to leave the parties ydiere they stood before its rendition. (Phelan v. San Francisco, 9 Cal. 16; Crispen v. Hannovan, 86 Mo. 168; Elliott’s Appellate Procedure, sec. 580.)