People ex rel. Jennings v. Markham

McFarland, J. — This is an application for a writ of mandate to compel the respondent, as governor of the state, to issue a proclamation for a special election in the fortieth senatorial district to fill what is alleged to be a vacancy in the office of senator for said district. No question is raised as to the jurisdiction of this court to issue such a writ in a proper case.

The facts disclosed by the petition are these: At the general election held in November, 1890, Hon. H. M. Streeter was duly elected state senator for the full constitutional term of four years for the senatorial district composed of the counties of San Bernardino and San Diego, then called the fortieth district. At that time he was a resident of the said county of San Bernardino, and was in every way qualified for the office of senator for said district. He has ever since been, and now is, a resident of said county of San Bernardino. In 1891 the legislature passed an act by which, for purposes of legislative representation, it reapportioned and redistricted the state, and in that act it provided that thereafter the county of San Diego alone should constitute a senatorial district, to be called the fortieth. (The act also provided, however, that there should be an election in 1892 for senators from the odd-numbered districts, and that senators who had been elected from the even-numbered districts in 1890 should continue in office for four years.)

The only point made by petitioner is, that by virtue of said act making San Diego alone the fortieth district, [264]the said Streeter ceased to live in the fortieth district; and that therefore, under the constitution of this state, there is a vacancy in the office of senator for said district. But the only constitutional provision upon the subject is in section 4 of article IV., and is as follows: “ Ho person shall be a member of the senate or assembly who has not been a citizen and inhabitant of the state three years, and of the district for which he shall be chosen one year, next before his election.” And it is quite clear that, so far as residence is concerned, this provision does not in the least affect the question before us. Streeter was elected for a district composed of the counties of San Bernardino and San Diego; and at the time of his election he was, and for a year theretofore had been, and (if that be material) still is, a resident of said district. The cases cited by petitioner are not in point. They were cases where officers of counties, or other municipal corporations, were required by law to reside at the seat of government of the municipalities; and the provisions of law under review in these cases were materially different from the provision of our constitution above quoted. For instance, in the leading case, cited by petitioner, of State v. Choate, 11 Ohio, 511, the constitutional provision construed was as follows: “There shall be appointed in each county not more than three nor less than two associate justices, who, during their continuance in office, shall reside therein.”