BRODIE v. CAMPBELL, 17 Cal. 11

Field, C. J. delivered the following opinion: This is a contest for the office of District Judge of the Twelfth Judicial District, and is presented upon an agreed statement of facts between the parties, under the statute. Both contestants claim to have been elected as successors of the present incumbent— Brodie at the general election in 1859, and Campbell at the general election of the present year. The Twelfth Judicial District was created by

an Act of the Legislature of May 15th, 1854, entitled “

an Act amendatory of and supplementary to

an Act entitled

an Act concerning the Courts of Justice of this State, and Judicial Officers, passed May 19th, 1858.” The Act of 1853, referred to, recognizes the division of the State, existing at the time of its passage, into eleven judicial districts. That division was made by the Act of March, 1851, bearing the same title.

Both Acts, that of 1851 and that of 1853, contemplate that District Judges elected by the people after a designated period shall take their respective offices on the first day of January subsequent to their election. (Session Laws of 1851, ch. 1, sec. 18; Ibid of 1853, ch. 180, sec. 14.) Both provide that in case of a vacancy, from any cause, in the office of District Judge, the Governor shall fill the same by granting a commission, which shall continue until the election and qualification of a Judge in his place; and that a Judge to fill such vacancy shall be chosen at the first general election subsequent to its occurrence. (Sec. 19 in Act of 1851, and sec. 15 in Act of 1853.) The Act of 1854 is not independent of the general provisions of the Act of 1853.

It is, as it purports in its title, merely amendatory of and supplementary to the general act. It amends that act only in the

section designating the number of Judicial Districts into which the State shall be divided, and it adds to it only by declaring that the jurisdiction of the new District Court shall be coextensive with that of the Fourth District, by fixing the terms of the Court and the salary of its Judge, and by authorizing the Governor to make a temporary appointment for the office. It is to be construed in connection with the original act, as much so as if it constituted from the day of its passage a part of that act. The new Court once created, and the new Judge once appointed, were brought within the operation of the provisions of the general act. By the fourteenth

section of that act, the appointee of the Governor—Judge Norton—was authorized to hold until the election and qualification of his successor. It was competent for the Legislature to thus provide for filling the office for the interval between the day of the election and the qualification of the new Judge, so as to prevent delays and embarrassment in the administration of justice. The question for determination is this: When did the term of the successor elected commence ? The statute did not name the day; it only authorized the appointee to hold until his successor qualified.

In the present case, the successor was the same person as the appointee, Judge Norton having been elected for the full term. On the twenty-sixth of December, 1854, the Governor issued to him a commission for that term, and on the second day of January, 1855, he qualified thereunder. His full term must be deemed, therefore, to have commenced with his qualification—he having qualified within the time prescribed by law after the receipt of his commission.

A different rule would prevail if the law had fixed the commencement of the term by the designation of a day certain; in that case the issuance of the commission and the time of the qualification would conclude nothing as to the term. But not so where the commencement must depend upon certain preliminary proceedings to be taken by different officers. A new Judge cannot enter upon the discharge of his duties until .the fact of his election is in some way officially determined, and authentic evidence of it furnished to him. For this purpose the law prescribes certain steps—following each other in regular order.

The returns of the election are to be made from the different precincts to the County Clerk. After a certain interval, these returns are to be opened and the votes counted. A statement of the votes of the district is then to be prepared, properly authenticated, and forwarded to the Secretary of State. Upon this statement the Governor is to issue his commission, and within ten days after its receipt the person elected is to take and subscribe the oath of office. The Constitution requires this oath to be taken and subscribed before the officer can enter upon the discharge of his duties (Art.

XI., sec. 3); and the statute requires the oath to be indorsed upon his commission. (Act concerning Offices, secs. 23 and 24.) The statute does not prescribe the period within which the Secretary of State shall inform the Governor of the filing of the statement, or the Governor shall issue the commission after receiving the information. It is to be presumed that both of these officers will act in the matter within a reasonable period consistent with their other duties. Various causes may arise creating delay in acting.

Inaccuracies or informalities in the statement, or in its return ; doubts as to the law applicable to the case; and reference to the Attorney General for his opinion thereon, with other reasons, may serve to retard the issuance of a commission. Into these matters the Courts will not minutely inquire.

It is sufficient for them, in determining the commencement of any particular term of office, where that is not fixed by the designation of a day certain, that the statute requires a commission to issue to the officer, and his oath of office to be indorsed thereon, and leaves its issuance to the Governor without prescribing the period within which this shall take place. In such case we must look to the qualification of the officer to ascertain the date at which his term begins.

The electors who are to vote for the successor of such officer will be at loss to determine when that officer’s term expires, if they are required to look beyond the commission, and the ten days prescribed by law for qualification thereunder. The record in the office of the Secretary of State will show when the commission issued, and upon that record the Governor will be presumed to act, as he did in the present case, when notifying the public by his proclamation of the offices to be filled at any given election.

Though it is true the right to an office is derived by election from the people, it is undoubtedly competent for the Legislature to render the enjoyment of the right dependent upon various conditions as to the ascertainment of the result of the election, the issuing of a commission, and the qualification of the officer. When these conditions are imposed, the right to enter upon and enjoy, in other words, to hold the office, is not complete until they are satisfied. Until then, the term of the officer cannot begin to run.

But" it is said that this view places it in the power of the Governor to prolong indefinitely the period at which the incumbent shall cease to act, and the person elected shall enter upon the enjoyment of the right given by the people. If this were so, it would not affect our conclusion; it is the common objection that a power conferred may be abused. It hardly need be said that its liability to abuse is no argument against the existence of a power, however much this might be urged against the policy of originally 'bestowing it.

We are not to reason in such cases upon the possibility of the abuse, but rather upon the presumption that the officers of the Government will do their duty, and not exercise the power with which they are clothed in an unreasonable and arbitrary manner. For the abuse of power by public functionaries, there is generally found in the resources of the law ample remedies; or those failing, a resort can be had to the Legislature.

In the case under consideration, we do not perceive that there was any abuse of power on the part of the Governor, or that the commission to Judge Norton for his full term was unreasonably delayed. The Constitution appears to have contemplated the first of January as the proper date at which District Judges elected after the first legislative appointment should enter upon their duties, and the legislation of the State, with reference to the Judges of the other Districts existing at the time of the creation of the Twelfth District, had expressly fixed that date as the commencement of their terms.

The period intervening between the election and that date would thus seem to be indicated as the reasonable period, within which the requisite proceedings for the ascertainment of the result of the election, and the issuing of the commission should take place. Be, however, this as it may; our conclusion for the other reasons stated is, that the full term of Judge Norton commenced with his qualification, and will not expire until January, 1861. The general election, therefore, which took place in November of the present year, was the only one at which his successor could be elected.

At that time, the respondent Campbell was elected. He is, therefore, entitled to the office for the full term succeeding the term" of the present incumbent. Judgment affirmed.