People ex rel. Fleming v. Shorb
Before: Vanclief
Synopsis
Office and Officer—Vacancy—Absence From State—Appointing Power. —Under Section 996 of the Political Code, which provides that an office becomes vacant upon the happening of certain specified events before the expiration of the term, one of which is the absence of the officer from the state for a period of more than sixty days, without permission of the legislature, the absence of an officer for such a period effects a vacancy ipso facto, which the appointing power has the right to fill upon satisfactory evidence of the absence, without the institution of legal proceedings, though the incumbent is not thereby concluded as to the fact of the occurrence of such event.
Id.—Quo Warranto—Ouster of Deputies of Absent Treasurer-Absence from Sickness.—In an action in the nature of a quo warranto information against a county treasurer and his deputies on the relation of one claiming the office of treasurer by virtue of an appointment, where the complaint alleged that the treasurer had been absent from the state for a period of over sixty days without the consent of the legislature or the board of supervisors, .by reason of which the office became vacant, whereupon the relator was appointed as county treasurer, and that the former treasurer was still absent from the state, and the answer of his deputies admitted his absence, alleging that it was caused through sickness, a judgment in favor of the relator as against the deputies is proper.
Id.—Cause of Absence Immaterial.—The fact that the absence of the treasurer from the state was necessary to his health and that its continuance beyond the sixty day limit was inevitable by reason of his sickness, is immaterial, as absence from the state without the consent of the legislature or board of supervisors for over sixty days absolutely effects a vacancy in the office regardless of the cause.
Id.—Qualification of Relator—Approval of Bond—Demurrer.—The question whether the official bond of the relator has been properly approved cannot be raised by general demurrer of the deputies of the former treasurer to an information in the nature of a quo warranto, alleging the absence of their principal from the state for more than sixty days. The judgment ousting the deputies does not depend upon the relator’s right to the office.
Vanclief, C. — The defendant Shorb was elected treasurer of the county of Los Angeles in November, 1892, and, having duly qualified, commenced to discharge the duties of that office January 2, 1893. The other defendants are his appointed and duly qualified deputies, who were acting as such before and at the time of the commencement of this action.
The action is of the nature of a quo warranto information, and is prosecuted by the attorney-géneral on the relation of T. J. Fleming, who claims the office of treasurer by virtue of an appointment thereto by the board of supervisors of Los Angeles county.
The plaintiff alleges, in substance, that on July 14, 1893, Shorb left this state, and has ever since remained, and now (September 25) is absent from this state without the consent of the legislature and without the consent of the board of supervisors of said county for a longer period than sixty days from July 14, 1893; that by reason of such absence from the state the office of treasurer^ of said county became vacant on September 13, 1893; that on September 15, 1893, the board of supervisors of said county appointed the relator, T. J. Fleming, to fill the vacancy; that after having duly qualified, Fleming on September 25, 1893, demanded of the defendants, who were then conducting the business of the office as deputies of Shorb, the records of the office, together with all moneys of the county deposited in the office and then in their custody; but that said deputies refused to comply with such demand.
The prayer of the complaint is for judgment that none of the defendants is entitled to the office of deputy treasurer, nor to the custody of the records or moneys appertaining to that office; and that the relator Fleming is entitled to the office of treasurer, and that he be put in possession thereof, and of all records, and moneys belonging thereto.
The defendant Shorb was not served with process and did not appear, and as to him the action was dismissed.
The other defendants filed a general demurrer to the [539]complaint and answered at the same time; and plaintiff filed a general demurrer to the answer.
The demurrer to the complaint was overruled, and the demurrer to the answer was sustained. The answer not being amended, judgment was rendered in favor of plaintiff against the defendants other than Shorb, according to the prayer of the complaint.
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