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occur until the happening of one of the events mentioned in section 996 Political Code, to which the court said: "If the legislature may conclusively define the meaning of the word 'vacancy' the argument may be well based; but we are not prepared to say that we are limited to the enumerated events."
In People v. Ward, 107 Cal. 241, it is said: “As has been suggested, some of the earlier cases have held that to section 996, enumerating the causes of vacancy, is to be applied the doctrine of exclusion, but more lately the soundness of the rule has been questioned, and it may well be doui:ted. [People v. Hammond, 66 Cal. 656.] And that it cannot be applied in strictness is clear from the fact that the section does not recite all the causes and events which the legislature itself has declared shall create vacancies." 239, in the same case it is said: “The legislature may provide that certain acts, happenings or events, shall create a vacancy in law, while its greatest wisdom cannot prevent the occurrence of vacancies in fact.” And there is abundant authority for the remark of Justice Thornton in Rosborough v. Boardman, that a vacancy may exist in an office that has never been filled by election or appointment. The decision in the Sands case was upon the sole question of where the appointing power was lodged, not upon the question of vacancy. In People v. Taylor, 57 Cal. 622, it was demonstrated that the vacancy existed by reason of failure to qualify after election (paragraph
On page 9 of section 996, Political Code], and in the Ward case the vacancy arose by reason of the death of the incumbent (paragraph 1 of section 996], the argument of the decision being that where a person is elected and qualifies, he is, in contemplation of that section, an incumbent. But it is also apparent from these cases that vacancies not provided for by any particular law may exist. How will our courts hold with reference to appointments where there is an hiatus in office, such as now appears to exist in the office of trustee under the Clark road law, where there is absolutely no provision in that statute for filling such vacancy? If the office is a “county” office, authority for filling it may exist under this subdivision (19), but if it is a "district," as distinguished from a county office, who shali appoint? Would it be held that, as the road law requires · various duties of boards of supervisors, they may be authorized to fill these vacancies in order to be able to discharge such other duties, under subdivision 40 of section 25 of this act? Or, must the governor appoint under section 8, article V, constitution?
Section 4066 Political Code, provides that no appointment to fill a vacancy in office must be made by the board except upon petition, signed by at last thirty qualified electors of the county, if for a county office, or by not less than fifteen of the qualified electors of the township or district, if for a township or district office, and there appears to have been no intention to repeal this provision by any of the county government acts.
“District” offices are not mentioned in section 19, which directly confers appointing power upon boards of supervisors. Unless, therefore, the district office is "app intive" in the first instance, it would seein necessary to seek the power in subdivision 40 of this section, if it exists at all.
The office of practicing physician for a county hospital is a county office, and an appointment to a vacancy in such office can only be made upon petition signed by at least thirty qualified electors. People v. Harrington, 63 Cal. 260.
The appointing power is not authorized to determine conclusively upon the capacity of the appointee to hold office. That question may be examined by the courts.
Palmer v. Woodbury, 14 Cal. 43.
A person elected district attorney at the November election, 1892, duly qualified and was entitled to take office at noon of January 7, 1893; his death prior to January 7, caused a vacancy to exist in the office at noon January 7, which vacancy could not be filled in advance of its existence, by the old board of supervisors, but could only be properly filled by appointment by the new board which also came into existence on January 7. People v. Ward, 107 Cal. 237.
In an action of quo warranto against a county treasurer and his deputies by one who has been appointed to the office to fill
vacancy alleged to exist by reason of absence of the treasurer from the state for more than sixty days without leave of absence, the deputies are not entitled to make the defense that the bond of their principal had been approved by only a part of the judges of the county. People v. Fleming, 100 Cal. 541.
The county goverament act of 1891 does not impliedly repeal section 111 of the Code of Civil Procedure which includes all justices of the peace both of cities and townships, and confers upon the board of supervisors of the county the power to fill vacancies in that office. People ex rel Wood v. Sands, 102 Cal. 12.
Absence from the state beyond the prescribed time creates a vacancy ipso facto, under the provisions of section 996, Political Code, which the appointing power has the righi to fill; but the finding of vacancy by a board of supervisors is not conclusive of the fact. The defense that the absence is occasioned by dangerous sickness is insufficient. In quo warranto by the appointee against deputies of the absent officer it was held that the fact of vacancy by reason of absence might be established without service of summons or notice upon the principal and that the deputies were not entitled to a defense by demurrer that the bond of their principal was never properly approved, and it was further held that a judgment ousting the deputies does not depend upon the relator's right to the office. People v. Shorb, 100 Cal. 540. [This case is erroneously indexed and headed "People v. Fleming," in the reports.]
As to appointing license tax collector, see notes under subdivision 25 of this section, infra.
Appointees are to hold "until the next general election." The phrase, "next election by the people,” is held to mean the next election at which, under law, the office filled by appointment would have been regularly filled by election, "had no vacancy occurred.” People v. Budd, 114 Cal. 168.
SUBDIVISION 21: Under section 4047 of the Political Code it was held that that section should be read and construed with section 3766, and that so read it was clearly the intention of the legislature that the supervisors, and not the tax collector, must contract for the publication of the delinquent tax list. Times Pub. Co. v. Alameda 64 Cal. 470. But-
Under subdivision 23 of the act of 1891, the board of supervisors was required to annually fix the price at which the county should be supplied with job printing, blank books and advertising. Where the price had been so fixed it was held that the tax collector could give the printing of the delinquent tax list to the newspaper of his choice provided it wag not at a higher price than that fixed by the board for advertising. That this section repealed section 3766 Political Code which required the list to be given to the lowest bidder. (Civing as to the repeal, Mendocino