17. Vacancy, what constitutes.-The Constitution itself clearly defines the sense of the phrase "vacancy of the office of Governor," as used in the sixth section, by specifically enumerating in the succeeding section the instances which devolve, in the duties of the Executive, upon the Lieutenant Governor. Id.

18. The failure on the part of the Controller elect to qualify, creates no vacancy in the office. Id.

19. When the Constitution clearly enumerates the events that shall constitute a vacancy in a particular office, we must suppose all other causes of vacancy excluded, especially when this construction can lead to no injurious results. Id.

20. In determining upon the sufficiency of the bond of an officer, and whether the officer, by his failure to comply with the requisition of the Supervisors to file a new bond, has vacated his office, the Supervisors exercise powers of a judicial character. People v. Supervisors of Marin County, 10 Cal. 344.

21. The provision of the statute organizing Boards of Supervisors, which empowers them to "require new bonds of any county or township officer, with additional securities whenever they deem the same necessary," does not leave the exercise of the power to their arbitrary discretion. By the terms " whenever they deem the same necessary," is meant whenever their judgment pronounces, after an examination of the facts of the case, that there is a necessity for further security. Id. 22. An order of the Supervisors requiring a new bond of an officer, "should specify the ground upon which the order is made; and where the Supervisors of Marin county made an order as follows: "Ordered, by the Board of Supervisors, that John De Fries, Constable of San Rafael township, file another bond, with two or more sufficient sureties, within fifteen days:" Held, that the order was fatally defective. Id.

23. The power to declare an office vacant is vested, under the statute, where the duty to approve of the bond of the officer is lodged. That duty is imposed upon the County Judge, and not the Supervisors; and where the Supervisors of Marin county declared the office of Constable vacant, because the Constable failed to comply with their order to file a bond: Held, that they exceeded their jurisdiction. Id.

24. Election, time.—An ordinance was passed by the Board of Supervisors of the city and county of Sacramento, June, 1858, relative to the cemetery, in which it was provided that the Board should appoint a person to superintend the cemetery "annually, in October, who shall hold office for the term of one year,' and further, that the Board, at their first meeting after the passage of the ordinance, should appoint a superintendent to hold office "until October next, and until his successor is appointed and qualified." Defendant was so appointed July 8th, 1858; had held the office until December, 1859, the Board having failed to appoint his successor before that time, when relator was appointed: Held, that relator is entitled to the office; that the failure to appoint in October, 1858 and 1859, did not exhaust the power of the electoral body-the time named being directory, and not of the essence of the power. Jacobs v. Murray, 15 Cal. 221. 25. The rule is, that when time is prescribed to a public body in the exercise of a function in which the public is concerned, the period designated is not of the essence of the authority, but is a mere directory provision. Id.

26. Where an election for the office of District Judge was held by the qualified electors of such district at the general election in 1858, and the term of the present incumbent of that office does not expire until January, 1861: Held, that such election was unauthorized, and the person elected is not entitled to a commission to such ice. People ex rel. Brodie v. Weller, 11 Cal. 77.

27. The statute, so far as it affects the election of 1858, only applies to such offices as were to become vacant in January, 1859, and this is evident as well as by the terms of the act as the unreasonableness of supposing that the Legislature meant to authorize an election several years in advance of the time when the office was to be filled. Id.

28. An election cannot take place under the Constitution without statutory regulation. All the efficacy given to the act of casting a ballot is derived from the law-making power, and through legislative enactments; and the Legislature must provide for and regulate the conduct of an election, or there can be none. People ex rel. McKune v. Weller, 11 Cal. 49.

29. When proclamation necessary.—An election to fill a vacancy

caused by a resignation is a special election, and the Governor's proclamation is essential to its validity. Westbrook v. Rosborough, 14 Cal. 180.

30. The office of County Judge is not a "county office," within the meaning of the Act entitled "An Act to amend an Act to Regulate Elections," passed March 23d, 1850; consequently, the Board of Supervisors cannot order a special election to fill a vacancy in that office. People ex rel. v. Martin, 12 Cal. 409.

31. An election to fill a vacancy in the office of District Judge is invalid, unless made under and in pursuance of the proclamation of the Governor. People ex rel. McKune v. Weller, 11 Cal. 49.

32. The statute requiring the Governor to issue his proclamation of election to fill vacancies in certain offices is mandatory, and an essential prerequisite to all such elections. Id.

33. The object of the proclamation is to give notice to the electors that such an election will be held. Id.

"

34. F. was elected, in the month of May, 1857, County Judge of San Mateo county, in pursuance of the provisions of An Act to Organize and Establish the County of San Mateo." No proclamation of the Governor was issued calling this election. At the general election in 1858, in pursuance of the proclamation of the Governor, an election was held for the same office and T. was elected: Held, that F. was entitled to the office. People ex rel. Fox v. Templeton, 12 Cal. 394.

35. The function of the proclamation is not to proclaim the law, but the fact of the vacancy. It cannot change either the law or the Constitution. People ex rel. Attorney General v. Burbank, 12 Cal. 378.

36. What will vitiate an election. The provisions of our statute clearly indicate that the Legislature did not mean that the returns of a candidate should be set aside, where an election was held at the proper time and place, and for the proper officers, unless it affirmatively appeared that there was such irregularity as affected the result of the election. Whipley v. McKune, 12 Cal. 352.

37. The failure of the officers conducting an election in a given district to be sworn as the election laws provide, will not invalidate the entire election without reference to its influence on the general result. Id.

38. The fact that the ballot-box was temporarily out of the possession of the officers of the election will not invalidate the election, especially where no fraud, collusion, or suspicious circumstances are shown. Id.

39. The rule is well settled, that the mere receiving and counting votes, improperly given, will not invalidate an election. Id.

40. Where such irregularities have occurred, it rests with the contestant to show them. The returns are prima facie evidence of the fact they import; and the returned candidate, after being commissioned, is prima facie entitled to the office. ld.

41. What is a lucrative office.-The place of Pilot in the port of San Francisco is an office. Palmer v. Woodbury, 14 Cal. 43.

42. Query: Whether the place or employment of Inspector of Customs is a lucrative office, under the United States, within the Constitution of this State. Saunders v. Haynes, 13 Cal. 145.

43. The Federal office of Surveyor General is a "lucrative office," and the office of Controller of State an "office of profit," under the twenty-first section of the fourth article of the Constitution of this State. People ex rel. Meloney v. Whitman, 10 Cal. 38.

44. Holding office, what constitutes.-To constitute the "holding" of an office, within the meaning of the Constitution, there must be the concurrence of two wills-that of the appointing power, and that of the person appointed. Id. 45. It is only in cases where there is no incumbent to hold over that the law will allow the appointment of the Executive to fill the office. Id.

46. As regards the appointing power, the appointment is complete when the commission is duly issued by the President, but the person appointed is required to give bond and take the oath of office before he can possess the office. These acts constitute a condition precedent to the holding of the office. Id.

47. Term of office.-At the general election held in Yuba county in September, 1855, W. was elected County Treasurer of that county for two years from the date of his election, and until his successor was chosen and qualified. On the

twenty-eighth day of April, 1857, a special act was passed, extending the term of this officer to the first Monday in January, 1858. On the seventh of May, 1857, W. resigned, and S. P. W. was appointed by the Board of Supervisors in his stead. At the general election in September, 1857, F. received the majority of votes for that office for the unexpired term of W., and claimed the office: Held, that the appointee held for the balance of the extended term, and that there was no vacancy to be filled at the election in September, 1857. People ex rel. Fowler v. Wells, 11 Cal. 329.

48. By the Constitution, Judges of the County Court hold their offices, when elected, for four years. It is in the power of the Legislature in organizing, or after organizing, a new county, to prescribe the time of elections for county officers, and also the period of the commencement of their terms; but it is not competent for the Legislature to change the period of the tenure of the office of Judge of County Courts, any more than to change those of Supreme and District Judges. It is evident, from the terms of this act, that it was contemplated that these officers-the Judge among them-should enter upon their offices as soon as the election was announced, or within a reasonable time thereafter. People ex rel. v. Templeton, 12 Cal. 394.

49. The Constitution, though it fixes the period of the tenure of the office of District Judge, does not fix any day for the commencement of the term; and if it did, it would not follow that it applies to Judges afterwards elected to new districts, nor would it result that the Judge elected in consequence of a vacancy was necessarily elected to fill such vacancy. People ex rel. Attorney General v. Burbank, 12 Čal. 378.

50. The Legislature can direct the time and prescribe the mode of electing District Judges, but cannot change the tenure of the office; hence, so much of the act as limited the period of incumbency is void. Id.

51. When the Constitution says the Judge shall hold his office for six years, it means that this period of six years is the term of his office; it is that quantum of time assigned to him by the Constitution as his period of the enjoyment of the office, and this quantum may not improperly be called a term. Id.

52. All the Constitution means by the expression "during the term," as used in sections fifteen and sixteen of article sixth, is during the time or period for which the officer is elected. Id.

53. The Constitution affixes no period of tenure to the office of Tax Collector, nor does it provide any mode of appointment. So far as this office exists in the incumbent, it is an office created by legislative act. The Legislature may direct how it shall be filled, and how its duties shall be discharged. Attorney General v. Squires, 14 Cal. 12.

54. Where the appointment to an office is vested in the Governor with the advice and consent of the Senate, and the term of the incumbent expires during the recess of the Senate, the Governor has the right to fill such vacancy, and his appointment vests in the appointee the right to hold and discharge the duties of such office for the full term, subject only to be defeated by the nonconcurrence of the Senate. People ex rel. Attorney General v. Addison, 10 Cal. 1.

55. The period of the tenure of a County Judge is fixed by the Constitution at four years. The Legislature may fix the commencement of the term, as also the time of election. Westbrook v. Rosborough, 14 Cal. 180.

56. If the incumbent resigns before the expiration of his term, there is a vacancy to be filled by the Governor. His appointee would hold until the next general election, or at most, until the qualification of the person elected by the people. Westbrook v. Rosborough, 14 Cal. 180.

57. Where an act, organizing a county, provides for the election of a County Judge, and limits the period of tenure to two years, the act is void, pro tanto; but the election held under the act is good, and entitles the incumbent to the office for four years. Id.

58. The full term of office of Judge Norton, of the Twelfth District Court, commenced with his qualification, January 2d, 1855, and expired six years thereafter; and the only election at which his successor could be elected was the general election in November, 1860. Brodie v. Campbell, 17 Cal. 11.

59. The appointee of the Governor to the office of County Judge will hold, over a person elected to the same office at a special election ordered by the Board of Supervisors of the county. People ex rel. Attorney General v. Martin, 12 Cal. 409.

60. By the provisions of the Constitution, the manner of electing and the term of the office of Comptroller are the same as that of Governor; and, consequently, if the Comptroller elect fails to qualify, the incumbent holds over until his successor is elected and qualified. The People ex rel. Meloney v. Whitman, 10 Cal. 38. 61. The term of the office of Governor is fixed at two years certain, with a contingent extension. When this contingency happens, this extension is as much a part of the entire term as any portion of the two years. Id.

62. The present incumbent of the office of Comptroller is entitled to hold the office until his successor is elected and qualified; and such successor may be elected at the general election of 1856, and when qualified, will hold his office for the term of two years and until his successor is qualified. Id.

63. From the time of the assumption of the office, the term of the Judge elected would legally commence, and terminate at the expiration of four years from that time. People ex rel. Fox v. Templeton, 12 Cal. 394.

64. A person duly elected Judge of the District Court of this State is entitled to hold office for the period of six years. People ex rel. Brodie v. Weller, 11 Cal. 77.

65. Who may appoint to office.-An Act of the Legislature, authoriz ing Boards of Supervisors to appoint a Collector of foreign miners' licenses is not unconstitutional. Assessors and Tax Collectors are constitutional officers; but it is not necessary, under the thirteenth section of article eleven of the Constitution, that every portion of the revenue pass through their hands. The Legisla ture may authorize the tax-payer to pay his taxes directly into the treasury. Attor ney General v. Squires, 14 Ĉal. 12.

66. The Sheriff being ex officio Tax Collector of foreign miners' licenses by an Act of the Legislature, may be deprived of the office of Tax Collector before the expiration of his term. Id.

67. The Legislature, having vested certain duties in a public officer, for whose services compensation is allowed, may take those duties and the fees from the office, before the expiration of the term, and confer them upon another officer. Id. 68. Smith v. Stillman, decided in 1852, (not reported) to the effect that after the Legislature has created an office, contemplated or provided for by the Constitution, it cannot destroy the office of the incumbent during his term, overruled. Id.

69. No appointing power in this State can determine conclusively upon the capacity of the appointee to hold office. That question may be examined in the Courts. Palmer v. Woodbury, 14 Cal. 43.

70. The Board of Pilot Commissioners under the Act of 1854, as amended by the Act of 1855, have only the powers conferred by the act, and must appoint the pilots from the classes of persons named therein. They cannot appoint a man as pilot who has not served two years on a pilot boat in the harbor, or commanded a vessel in and out of port for three years. Id.

71. The power to remove is an incident to the power to appoint, as a general proposition, and is made so expressly by the Constitution. People v. Hill, 7 Cal. 97. 72. A law which provides that an officer may be removed in a certain way, or for a certain cause, does not restrain or limit the power of removal to the cause or manner indicated. Id.

be

§ 311. Name of person entitled to office may be set forth in the complaint; if fees have been received by the usurper, he may arrested.

Whenever such action is brought, the Attorney General, in addition to the statement of the cause of action, may also set forth in the complaint the name of the person rightly entitled to the office, with a statement of his right thereto; and in such case, upon proof by affidavit that the defendant has received fees or emoluments belonging to the office, and by means of his usurpation thereof, an

order may be granted by a Judge of the Supreme Court, or a District Judge, for the arrest of such defendant, and holding him to bail; and thereupon, he may be arrested and held to bail, in the same manner and with the same effect, and subject to the same rights and liabilities, as in other civil actions where the defendant is subject to arrest.

1. What are not sufficient allegations.-In quo warranto to determine the right to an office, an allegation that defendant is in possession of the office without lawful authority, is a sufficient allegation of intrusion and usurpation. Palmer v. Woodbury, 14 Cal. 43.

2. If the complaint be defective in this particular, the defect must be reached by special demurrer. Id.

3. In an action by one claiming to have been elected to an office against his predecessor, to compel a surrender of the books, papers, etc., belonging to the office, plaintiff must show prima facie that a vacancy existed in the office, and that he was elected to fill it. Doane v. Scannell, 7 Cal. 393; Id. 439.

4. Who cannot demur.-In quo warranto for an alleged usurpation of the office of pilot for the port of San Francisco, the complaint avers that defendants hold, use, exercise, usurp and enjoy the office without a license, and also certain allegations as to the right of relator to the office: Held, that these allegations as to relator's right cannot be reached by general demurrer, the complaint being good as against the defendants; that they are not interested in the question as to the right of relator, but only in the determination of their own right to the office. Flynn v. Abbott, 16 Cal. 358.

5. Ineligibility no defense.—In a proceeding to contest the election of defendant as District Judge, the ineligibility of the candidate receiving the highest number of votes, the defendant being next on the list, is no defense; because this matter, if true, could not protect the incumbent from the consequences of an unauthorized possession of the office. Saunders v. Haynes, 13 Cal. 145.

6. The fact that the candidate receiving the highest number of votes at an election by the people is ineligible does not give the office to the next highest on the list. Id.

§ 312. Judgment may determine the rights of both incumbent and claimant.

In every such case judgment may be rendered upon the right of the defendant, and also upon the right of the party so alleged to be entitled; or only upon the right of the defendant, as justice shall require.

§ 313. When rendered in favor of applicant.

If the judgment be rendered upon the right of the person so alleged to be entitled, and the same be in favor of such person, he shall be entitled, after taking the oath of office and executing such official bond as may be required by law, to take upon himself the execution of the office.