People ex rel. Wood v. Sands

Garoutte, J. The question- here involved is the respective rights of the relator and the defendant to hold the office of justice of the peace in the city of Oakland, and these rights depend upon the determination by this court as to where the appointing power to fill a vacancy in that office is lodged under the constitution and laws of the state. The relator claims the office by virtue of an appointment by the board of supervisors of the county of Alameda, and the defendant claims the office by virtue of an appointment by'the mayor of the city. There is but one other source from which, by any possible construction of the constitution and statutes, an appointment can come, and that is the governor, under article VI, section 8, of the constitution and section 999 of the Political Code. Neither party to this controversy has received the appointment of the governor, nor does either party contend that the governor has the power to fill a vacancy in such office.

As indicating that a justice of the peace of the city of Oakland is a county or township officer, it is suggested that his office is one provided for by the general law; that it is filled at a general state election, and at a time when the city holds no election; that the call for-the election is published, the officers of the election appointed, the precincts established, the votes canvassed, the result declared, and the amount of the bond fixed by the board of supervisors. In addition to these matters the certificate of election is issued by the county clerk., the bond approved by the judge of the superior court, filed with the county clerk, and recorded with the county recorder. The criminal jurisdiction of this office extends over the entire county; the process likewise is only limited by the boundaries of the county; and the civil jurisdiction extends to the limits of the township in which the court is held, regardless of city lines. As indicating that such office is a city office, and that such justice of the peace is a city officer of the city of Oakland, it is urged that the city is required by law to provide a suitable place for holding his court; that he must [15]report to the city treasurer monthly, and turn over to said treasurer all fees collected; that his salary is paid by the city; that he is elected by the electors of the city alone; that such office has a strictly municipal jurisdiction, and that such justice is ex officio police judge. For the foregoing reasons it appears that a city justice of the peace, as he is named by various provisions of the statute, might well be termed a county or township officer, for the law looks upon him and deals with him in the respects we have suggested as it looks upon and deals with other persons whom we know to be county and township officers. Again, in other respects, such officer bears the indicia of an officer of the municipality. The office thus partakes of the character of both a county and township office, and also a city office, and it certainly would be somewhat of a misnomer to call it either. In order to support appellant’s position, he must bring himself within the designation of an officer of the city, for the appointing power of the mayor extends to no other, while the success of respondent’s position does not depend upon the technical name of the office; nor does it depend upon the fact of the officer being either a county or township officer; for the law under which he asserts his claims designates such officers as justices of the peace. This question presenting these difficulties we pass by the controversy as to the exact classification of the office, and, without naming it, will find the appointing power. For the location of that power is a matter purely with the legislature, regardless of the technical character of the office.