THE PEOPLE of the State of California, ex relatione S. R. HARRIS, Appellants, v. CHARLES D. BRENHAM, Mayor of San Francisco, Respondent, 3 Cal. 477

Chief Justice Hastings delivered the opinion of the court. Murray, Justice, concurred with the Chief Justice in his conclusion, but for different reasons, and delivered his opinion in conformity to his views. Lyons, Justice, dissented. Hastings, Chief Justice. Three propositions are suggested relating to the construction of the Charter of the City of San Francisco, regulating the election and terms of the officers of the city. 1. That the election should have been holden in September, 1851, and the terms of the officers to commence in April, 1852. 2.

That the first election having been holden on the first Monday of April, A. D. 1851, the second election should be postponed until the September general election, 1852. 3. That the term of the respondent should cease at the state election of September, A. D. 1851, and that the election of the relator, as his successor, was legally holden at that time. One of these propositions must be adopted, and we shall adopt that which would naturally produce the least injury, and best harmonize with the intention of the legislature, and the general policy of the State Government, relating to the terms and tenure of office.

The first proposition violates

section 2,

article 4, of the Charter, which provides that both boards (of aldermen) shall assemble on the first Monday after their election, and would operate an injury to the public in this, that they would be deprived of the services of officers, who would usually be elected for causes influencing the minds of the electors at the time, which might not exist months after, and a wrong upon the officers elect, by postponing the commencement of their terms, until the first Monday of April, of each year. The second proposition is obnoxious to the 16th

section of

article 4, which provides that the officers elective under this Charter shall continue in office for one year, or until their successors are qualified, as it gives the respondent a term of seventeen months, a greater term than any of his successors could be elected to. This is no't usual in the incipient organization of any city government, and such a term is not contemplated and prescribed by the Charter.

By adopting the third proposition, it is difficult to perceive how the public can suffer further injury, than a change of officers may produce, during the prosperous administration of the affairs of the city; and this could be of no great moment, provided competent successors are elected. It is true that this construction seems to conflict with the 16th sect, referred to, and the general policy of the Charter, which contemplates a term of one year, and but one general election for each year, and curtails the term of the respondent to a half year ; but the term of one year is not absolute.

It may he limited by an event which may happen, viz.: the election and qualification of a successor, prior to the termination of the term. It is not of much importance to interpret the literal meaning of the word annually, or of the. word or ; the actual and substantial meaning and intention of the legislature is to be sought after, and we know of no better rule than to follow the established policy of the State Government, from its origin, which evidently is to make elective all offices of the state, counties, and cities, at the shortest periods which the convenience of the public will permit.

Governed by this policy, we should not extend official terms beyond the time clearly defined, but rather by implication, if necessary, shorten the duration of a term, than prolong it. Adopting the third proposition, the first official year in the government of the City of San Francisco should have closed at the September general election, for 1851, and the second official year should have thereupon commenced.

This would give the respondent a fraction of a year for his term, and not one full term and a fraction of a second. „ As to the validity of the election of the relator, we are of the opinion that the decision of the court below is correct. He received a majority of all the votes cast, at an election ordered by law; and the means of bringing about the election, and irregularities therein, should be disregarded, as it is to be presumed that all of the electors knew the law, and were not prevented from voting by any fraud or misconduct on the part of those who conducted and managed the election.

The time and place of the election being fixed by law, it may have been the duty of the Common Council to give notice thereof; and should they fail to do so, or to perform any other duty required, prior to the election, a writ of mandamus might issue from the courts commanding them to discharge their duty; but this would not afford immediate relief; and it ought not to he in the power of incumbents in office to prevent the election of their successors, at the time and place prescribed by law, by neglect on their part.

Unless the election of the relator is a nullity, he acquired a right to the office, which should be protected. So much, therefore, of the judgment of the court below declaring the election of the relator to be valid is affirmed, and that part of the decision of the court postponing the commencement of the term until the first Monday of April, 1852, is reversed, and the District Court is ordered to enter judgment in this case accordingly.