CHARLES TILLSON v. WILLIAM FORD, 53 Cal. 701

By the Court : The eighth

section of the Act of April 2nd, 1866, (Acts 1865-6, p. 719) has no bearing upon the present controversy. That Act is entitled “

An Act to change the time for holding municipal elections in the City and County of San Francisco, and to define the official terms of certain officers therein mentioned,” and, after providing for the objects specified in its title, declares, in sec. 8, with reference to the persons holding office at the time of its passage, as follows : “ All of the present city and county officers as designated in secs. 4, 5, and 7 of this act, and the State Harbor Commissioners as designated in sec. 8, (?) shall continue in office during the entire term for which they were elected, and until their successors are elected and qualified as provided for in this act: provided, that any officer elected or appointed to fill a vacancy which may in any manner occur shall serve only during the unexpired term of his predecessor, and until his successor is elected and qualified.” It is sufficiently clear that the eighth

section refers to the then present incumbents, and was not intended to supply the rule applicable to the filling of vacancies, should any occur after the expiration of the terms of such incumbents. Nor are the sections of the Political Code referred to by counsel for appellant decisive of the questions before us. The first

chapter of title 2 of

part 4 of the Political Code, which treats of “ The Board of Supervisors,” does not apply to the City and County of San Francisco, (Political Code, sec. 4087) and by the nineteenth preliminary provision of the same Code it is declared that nothing therein contained shall affect any of the acts incorporating or chartering municipal corporations, or consolidating cities and counties, or amending or supplementing such acts. The rights of the parties before us are, therefore, to be determined by reference to the ninth

section of “An Act to repeal the several charters of the City of San Francisco, to establish the boundaries of the City and County of San Francisco, and to consolidate the government thereof,” usually cited as the Consolidation Act. The first clause of that

section is as follows: “ Whenever vacancies occur in any elective office of the said city and county, and provision is not otherwise made in this or some other act for filling the same until the next election, the Board of Supervisors shall appoint a person to discharge the duties of such office until the next election, when the vacancy shall be filled by election for the term.” It is urged, however, that although Tillson was elected at a general election, (so far as other officers are concerned) it was a special election as to the office of Tax Collector, inasmuch as the person to be chosen to that office was to be elected only for the unexpired term of William Mitchell, deceased; and it is claimed that this position is sustained by Kenfield v.

Irwin, 52 Cal. 164. The distinction between the facts of that case and those presented by the case now before us is very apparent. That case was decided upon the proposition that no special election can be held to supply a vacancy in a State office, under the provisions of the Political Code, unless a proclamation shall be issued informing the voters that the vacancy exists; for, while all are presumed to know the law and the time when the full terms expire, the voters are not presumed to know the fact that an officer has resigned, or died.

As we have seen, the rights of the parties now before- us are to be determined by the Consolidation Law, and not by the provisions of the Political Code. But if a proclamation was necessary, a proclamation was issued and duly published, notifying the voters to meet in their respective districts on the day of the general election, for the purpose of electing a Tax Collector for the unexpired term. No force is to be attributed to the circumstances that the proclamation did not designate the election, (so far as the particular office was concerned) as a special election.

Every purpose of the publication was subserved when the voters were informed that the vacancy had occurred, and that they were called on to fill it. Judgment affirmed. Remittitur forthwith.