People ex rel. Hargrave v. Markham

Beatty, C. J. This is an agreed case by which the question is submitted to the court whether at the approaching general election a judge of the superior court of the county of Madera is to be chosen by popular vote. In form the proceeding is a petition for a writ of mandate to the governor commanding him to include in his forthcoming election proclamation a call for the election of said judge.

No question is raised as to the power of the court to issue its mandate to the head of the executive department of the state government, but, on the contrary, it is conceded that if the question stated is answered in the affirmative the writ shall issue.

The county of Madera was created by an act of the legislature approved March 11, 1893 (Stats., 1893, p. 168), out of territory theretofore included in the county of Fresno. The act provided, among other things, for the appointment of a board of commissioners to call, conduct, and verify the results of a special election of the officers necessary to complete the organization of the county. Among the officers to be so chosen, a judge of the superior court was expressly included. ■ In pursuance of these provisions a special election was held in said county on the 16th of May, 1893, and on the 20th of the same month said board of commissioners declared the county to be duly organized. Among other officers chosen at said special election the Hon. W. M. Conley was elected to the office of judge of the superior court, and on the twenty-third day of May he received from the governor a commission empowering him to hold said office “for the term provided by law.” The question to be decided here is, When does that term expire? or, in other words, When does a regular term of the office, to be filled by choice of the electors at a regu- ■ lar election, commence?

By section 14 of the act creating the county it is provided that: “The judge of the superior court chosen under this act shall hold his office until the first Monday in January, eighteen hundred and ninety-seven, and [234]until bis successor is elected and qualified.” If tbis provision is not in conflict with the constitution it is plain that the first regular full term of the office does not commence until January, 1897, and consequently, that no judge of said court is to be chosen before the general state election in November, 1896. (Const., art. VI, sec. 6.) But the relator contends that by this very section of the constitution the commencement of the first regular full term of every newly created superior judgeship is fixed for the first Monday in January after the next ensuing general election, and, consequently, that the legislature exceeded its power in attempting to extend the term of the judge to be chosen at the special election in Madera county beyond the first Monday of January, 1895.