People v. Sands

HAYNES, C. This is an action in the nature of quo warranto, brought by the people on relation of Fred Y. Wood against John A. Sands to try the title of the relator and the defendant, respectively, to the office of city justice of the peace of the city of Oakland. The office became vacant by the resignation of the prior incumbent, and the mayor of the city, acting under the “freeholders’ charter,” appointed the defendant to fill the vacancy. Sands thereupon qualified and entered upon the duties of said office. The board of supervisors of Alameda county, assuming that the power of appointment to said office was vested in them, appointed the relator to fill the same vacancy, and he also qualified and demanded possession of the office. The cause was submitted in the court [425]below upon an agreed statement of facts, which was adopted as a finding, in which it is conceded that each of these persons possesses all the qualifications required by law, and that the sole question is as to where the power of appointment to fill said vacancy is vested. The superior court held that said power was vested in the board of supervisors, and gave judgment in favor of the relator, Wood, and defendant Sands appeals therefrom.

Appellant contends that a city justice of the peace is a city officer, and that under the charter of the city the mayor is empowered to fill all vacancies in city offices. If a city justice of the peace is a city officer, the provision of the charter is insufficient in its terms to authorize an appointment by the mayor to fill the vacancy. Its language is as follows: “The mayor shall have the power to appoint suitable persons to fill vacancies in any office, except as in this charter provided”: Stats. 1889, p. 570, sec. 202. The exception does not affect this ease. The contention of respondent, briefly stated, is that city justices are not city officers, but are officers designated by the constitution, and exercising a part of the judicial power therein provided for; that, even if the power of appointment to a vacancy is not enumerated in the general permanent powers of the board of supervisors, a general provision gives them such other power, and charges them with such other duties, as are or may be imposed upon them by law; and among these is the power and duty imposed by section 111 of the Code of Civil Procedure, which reads as follows: “If a vacancy occurs in the office of a justice of the peace, the board of supervisors of the county shall appoint an eligible person to hold the office for the remainder of the unexpired term.” These provisions, however, cannot be held to give the board of supervisors the power to fill the vacancy in question, if the office of city justice is a city office. Section 103 of the Code of Civil Procedure, as amended by the act of March 31, 1891 (Stats. 1891, p. 456), provides that there shall be at least one justice of the peace in each township, elected by the qualified electors of the township, and gives the board of supervisors authority, when, in their opinion, the public convenience requires it, to establish two justices’ courts in townships; and further provides: “ In every city having fifteen thousand »nd not more than thirty-four thousand inhabitants there shall be