Rupley v. Winkler

PEEK, J. This is an appeal from an order of the trial court denying plaintiff’s application for an injunction, dissolving a temporary restraining order and sustaining defendant’s general demurrer without leave to amend.

The complaint, although not set forth in counts, makes two separate charges: (1) That defendant is not legally the district attorney of El Dorado County and hence cannot prosecute the misdemeanor actions which (2) plaintiff contends are based on unconstitutional statutes.

The facts which are not in dispute show that on December 27, 1954, the defendant Winkler was appointed by the Board of Supervisors of El Dorado County to the office of district attorney for the unexpired term of Robert E. Roberts “ending the 3rd day of January, 1955.” Roberts had previously been appointed judge of the superior court for said county. Winkler qualified that same day and on January 3 Roberts appeared before the board of supervisors and filed a formal written resignation as district attorney for the term beginning January 3, 1955. On that same day the board appointed Winkler district ■ attorney for the unexpired term ending on the first Monday after January 1, 1959. Winkler took his oath of office on January 4 and since that date has exercised the powers and duties of district attorney of that county.

On March 3, 1955, plaintiff herein filed a petition for a writ of prohibition in the Superior Court of El Dorado County by which he sought to prohibit the trial of certain misdemeanor actions which form the basis of the case now before this court. On May 6 the superior court filed its order denying said petition, and on May 13 plaintiff filed his complaint in the present case seeking an injunction on the grounds previously noted. On June 7 the court filed its order denying the same, and the present appeal followed. Thereafter, on June 30, 1955, Winkler prosecuted the criminal cases. Following a jury verdict of guilty, the fines assessed in each case were paid and an appeal was taken to the superior court of El Dorado County, which matter is presently pending in that court.

We find no merit in plaintiff’s first contention. As the trial court noted, even assuming the January 3, 1955, [170]appointment of Winkler as district attorney was invalid, and if we further assume that this is a proper proceeding to test defendant’s title to public office, such facts could be of no aid to plaintiff. The appointment of Winkler on December 27, 1954, to fill the vacancy for the unexpired term is not attacked by plaintiff, nor could it be. Under the provisions of section 1302 of the Government Code, Winkler was under legislative mandate to “. . . continue to discharge the duties of his office until his successor [had] qualified.” It follows that any official acts taken by him were pursuant to and by virtue of such legislative provision.