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mission, to expire at the end of the next session of the legislature, or at the next election by the people.

See Const. Cal., art. 5, sec. 8. Governor's power to appoint where the mode provided by law is unconstitutional: See Myers v. Alameda Co., 60 Cal. 287.

Governor's appointing power: See sec. 380, and note.

Vacancy: See secs. 380 and 996, and note. Where a mode of filling a vacancy in office is provided by law other than by appointment by the governor, he has no power to appoint to such vacancy: People v. Stratton, 28 Cal. 382; Wetherbee v. Cazeneau, 20 Id. 507; People v. Tilton, 37 Id. 614. See an application of the above section in People v. Mathewson, 47. Id. 442. The governor can appoint under this section only upon the resignation or death of the incumbent, or the happening of some event by which the duties of the office are no longer discharged. If an officer is holding over under section 879, ante, there is no vacancy within the meaning of this section: People v. Bissell, 49

Id. 407. Say the supreme court of Virginia, in Burks v. Hinton, 7 Va. L. J. 75, 97: "Vacancy ex vi termini means vacancy in the office, and not in the term; and in the absence of constitutional provisions, either express or impliedly to the contrary, an officer chosen to fill a vacancy is chosen for a full term, and not for the unexpired term of his predecessor. It is so with the judicial office, and has been applied to the offices of sheriffs, clerks, registers, and others;" citing People v. Green, 2 Wend. 266; People v. Contant, 11 Id. 132, 511; Brewer v. Davis, 9 Humph. 208; Keys v. Mason, 3 Sneed, 6; People v. Burbank, 14 Cal. 378.

Elections to fill vacancies in offices: See sec. 1043, post, and note.

Where the appointment vests in the leg. islature, the omission to appoint does not create a vacancy the governor can fill if the former officer still discharges the duties: People v. Tilton, 37 Cal. 614.

1000. Vacancies occurring during recess of legislature.

SEC. 1000. Vacancies occurring in office during the recess of the legislature, the appointment to which is vested in the governor and senate, or in the legis lature, must be filled by appointment made by the governor; but the person so appointed can only hold the office until the adjournment of the next session of the legislature.

Expiration of appointee's term of office. As the law formerly stood, where the governor appointed to a vacancy during the recess of the senate, although it was such an office as the governor could appoint to, with the consent of the senate, yet such appointee was vested with

the right to hold and discharge the duties of the full term, subject only to be defeated by the non-concurrence of the senate: People v. Addison, 10 Cal. 1. See Stats. 1863, 390, as a basis for this section. And see note to previ

ous section.

1001. Vacancies in certain state offices, how filled.

SEC. 1001. A vacancy in the office of either the secretary of state, controller, treasurer, attorney-general, surveyor-general, or clerk of the supreme court, must be filled by a person appointed by the governor, who shall hold his office for the balance of the unexpired term. [Amendment, approved April 1, 1876; Amendments 1875-6, 23; took effect sixtieth day after passage.]

Special election of controller: See Kenfield v. Irwin, 52 Cal. 169; and sec. 1043, post. 1002. Harbor commissioner or superintendent of public instruction.

SEC. 1002. A vacancy in the office of either the superintendent of public instruction or state harbor commissioner must be filled by a person appointed by the governor.

See post, sec. 2520.

1003. Directors of insane asylum.

SEC. 1003. Any person appointed to fill a vacancy in the board of directors of the insane asylum holds only for the unexpired term of his predecessor.

Stats. 1870, 868. Under the act of 1866,

ors of the insane asylum were not appointed

Stats. 1865-6, 513, vacancy in board of direct- by the governor: People v. Barker, 37 Cal. 639.

1004. Power and duty of officers filling unexpired terms.

SEO. 1004. Any person elected or appointed to fill a vacancy, after filing his official oath and bond, possesses all the rights and powers and is subject to all the liabilities, duties, and obligations of the officer whose vacancy he fills.



1014. Possession of books and papers.

SEC. 1014. Every public officer is entitled to the possession of all books and papers pertaining to his office, or in the custody of a former incumbent by virtue of his office.

Notary's books: Sec. 796.

1015. Proceedings to compel delivery of books and papers.

SEC. 1015. If any person, whether a former incumbent or another person, refuse or neglect to deliver to the actual incumbent any such books or papers, such actual incumbent may apply, by petition, to any court of record sitting in the county where the person so refusing or neglecting resides, or to any judge of the superior court residing therein, and the court or officer applied to must proceed in a summary way, after notice to the adverse party, to hear the allegations and proof of the parties, and to order any such books or papers to be delivered to the petitioners. [Amendment, approved April 3, 1880; Amendments 1880, 20 (Ban. ed. 109); took effect immediately.]

Amended to conform to the new constitution by using "superior" instead of "district or county."

Under proceedings to compel the delivery of books it is not competent for the defendant, when defeated, to seek by certiorari 1016. Attachment and warrant to enforce.

to attack the plaintiff's title to the office; that must be done alone by quo warranto: Hull v. Superior Court, 63 Cal. 174.

Refusing to deliver books: Pen. Code, secs. 76, 77.

SEC. 1016. The execution of the order and the delivery of the books and papers may be enforced by attachment as for a witness, and also, at the request of the petitioner, by a warrant directed to the sheriff or a constable of the county, commanding him to search for such books and papers, and to take and deliver them to the petitioner.



1026. Seals of executive officers.

SEO. 1026. Except where otherwise specially provided by law, the seals of office of the various executive officers are those in use by such officers at the time this code takes effect, and each of such officers must at once file a description and impression of such seal in the office of the secretary of state.

"The filing here required must be done on or before January 1, 1873, to identify the seals; and secretary of state should carefully preserve

1027. Great seal.

such impressions and descriptions:" Commis sioners' note.

SEC. 1027. The great seal of the state is the one in use at the time of the adoption of this code.

See Const. Cal., art. 5, sec. 13.

Custody of great seal: Sec. 407, ante.

1028. Executive and judicial officers may administer oaths.

SEC. 1028. Every executive and judicial officer may administer and certify


Administration of oaths: Sections 179, 259, 2012, 2093, Code of Civil Procedure, and sections 4118, 4103, of the Political Code, provide what officers may administer oaths. A United States court commissioner cannot administer an oath

in proceedings in the courts of this state; e. 9., a claim against a decedent's estate is not properly sworn to if the oath was taken before & United States court commissioner: Winder v. Hendricks, 56 Cal. 464.

1029. Salaries of officers.

SEO. 1029. Unless otherwise provided by law, the salaries of officers must be paid out of the general fund in the state treasury, monthly, on the last day of each month.

Cited by way of illustrating the general design to pay the salary of public officers monthly, in Jenks v. Oakland, 58 Cal. 576.

1030. Office hours.

SEC. 1030. Unless otherwise provided by law, every officer must keep his office open for the transaction of business from ten o'clock A. M. until four o'clock P. M., each day, except upon holidays.

Holidays: See sec. 10, ante.

1031. Signature of officers acting ex officio.

SEC. 1031. When an officer discharges ex officio the duties of another office than that to which he is elected or appointed, his official signature and attestations must be in the name of the office the duties of which he discharges. Stats. 1861, 139.

1032. Records open to public inspection, except in divorce.

SEC. 1032. The public records and other matters in the office of any officer are at all times, during office hours, open to the inspection of any citizen of this state. In all actions for divorce, the pleadings, and the testimony taken and filed in said actions, shall not be by the clerk with whom the same is filed, or the referee before whom the testimony is taken, made public, nor shall the same be allowed to be inspected by any person except the parties that may be interested, or the attorneys to the action, or by an order of the court in which the action is pending; a copy of said order must be filed with the clerk. In cases of attachment, the clerk of the court with whom the complaint is filed shall not make public the fact of the filing of such complaint, or of the issuing of such attachment, until after the filing of return of service of attachment. [Amendment, approved March 30, 1874; Amendments 1873-4, 14; took effect July 6, 1874.] The original section consisted of the first sentence only.

Inspection of public writings: Code Civ. Proc., sec. 1892.


Violation of section: Pen. Code, sec. 176; said by the commissioners to be "applicable to officers generally."








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SEC. 1041. There must be held throughout the state, on the first Tuesday after the first Monday of November, in the year eighteen hundred and eighty, and in every second year thereafter, an election, to be known as the general election. [Amendment, approved April 16, 1880; Amendments 1880, 77 (Ban. ed. 366); took effect from passage.]

For construction of this section under the constitution of California of 1879, and with reference to the various county governments, see Wood v. Election Commissioners, 55 Cal. 561; Treadwell v. Supervisors, 8 Pac. C. L. J. 74;

1042. Judicial elections.

Section 1042, relating to the judicial election, was repealed by act of April 16, 1880; Amendments 1880, 77 (Ban. ed. 366); took ef

fect from passage.

The repealed section was as follows: 1043. Special elections, when to be held.

Barton v. Kalloch, 56 Id. 95. And see Staude v.
Election Commissioners, 61 Cal. 313.

The act by which the amendment of April 16, 1880, was adopted was declared constitutional in People v. Ransom, 58 Cal. 558, 560.

"SEC. 1042. There must be held throughout the state, on the third Wednesday in October, in the year 1873, and in every second year there. after, an election to be known as the judicial election."


SEO. 1043. Special elections are such as are held to supply vacancies in any fice, and are held at such times as may be designated by the proper board or officer. Vacancies: See ante, sec. 996 and notes. As missioners of San Francisco have power to call an example of a special election under this sec- an election for a board of freeholders to frame tion, see People v. Hoge, 55 Cal. 612. a charter for that city: People v. Hoge, supra. Special elections: See People v. Hoge, su- In addition to a statement of the time and place, pra, and note to sec. 1053. it is also essential that the notice should specify the office or offices to be filled at the proposed election: Secord v. Foutch, 44 Mich. 89.

Designating time of election: See sec. 1053, post, and note. The board of election com



1053. Election proclamation by governor.

SEC. 1053. At least thirty days before a general election, and whenever he orders a special election to fill a vacancy in the office of state senator or member of assembly, at least ten days before such special election, the governor must issue an election proclamation under his hand and the great seal of the state, and transmit copies thereof to the boards of supervisors of the counties in which such elections are to be held. [Amendment, approved April 16, 1880; Amendments 1880, 77 (Ban. ed. 366); took effect from passage.]

Election proclamation-Time of election. The next section prescribes the contents of the proclamation, the first item being a statement of the time of election. It is a principle designed to bring to those most interested, the people, a notice of an approaching election, that the time of holding an election, whether general or special, must be authoritatively designated in advance, either by law or by some means which the law has prescribed; otherwise the election is held without authority, and is ineffectual for any purpose: People v. Porter, 6 Cal. 26; McCune v. Weller, 11 Id. 49; People v. Martin, 12 Id. 409; Westbrook v. Rosenberg, 14 Id. 180; Kenfield v. Irwin, 52 Id. 164; People v. Mathewson, 47 Id. 442; Sawyer v. Hayden, 1 Nev. 78. Time and place are of the substance of every election: Dickey v. Hurlburt, 5 Cal. 343; Knowles v. Yates, 31 Id. 83, and cases cited arguendo; and see sec. 1131, post. With respect to the two broad classes of elections, general and special, the necessity of a proclamation designating the time of holding the election varies. In the one case, that is, of a general election, statutory provision is usually made as to the time thereof. The voters are presumed to know the law and the time when a term of office expires, and the date of election to fill the same. In this class of elections, therefore, the governor's proclamation is not essential to their validity: Kenfield v. Irwin, 52 Cal. 164; Tillson v. Ford, 53 Id. 701; Dickey v. Hurlburt, 5 Id. 343; Cooley on Const. Lim., sec. 603, citing People v. Cowles, 13 N. Y. 350; People v. Brenham, 3 Cal. 477; State v. Jones, 19 Ind. 356; People v. Hartwell, 12 Mich.

508; Dishon v. Smith, 10 Iowa, 212; State v. Orvis, 20 Wis. 235; State v. Goetze, 22 Id. 363. In Lafayette v. Jenks, 69 Ind. 218, the same cases are relied upon, and the court in its reasoning proceeds upon the same principle which determines the distinction above adverted to. But with respect to special elections-elections held to supply vacancies in office arising from some other cause than the expiration of the term-it is essential that a designation of the time of holding them should be given by the governor, or other proper board or person: The cases first above cited; Jones v. State, 1 Kan. 273; Barry v. Lauck, 5 Coldw. 588. In this class of elections the proclamation contains the necessary designation; in the other class the law itself designates.

In the absence of an authoritative notice to the electors of an approaching special election, such election is void: The decisions first above referred to. It is not essential, however, that such notice should specify the coming election to be a special one. Every purpose of the notification, the designation, is subserved when the electors are informed that the vacancy has occurred, and that they are called to fill it: Till son v. Ford, 53 Cal. 701.

It is worthy of note that this section, 1053, as amended in 1880, limits the special elections for which the governor's proclamation is requisite, and that all of the above decisions were rendered prior to this amendment. But section 1043 is general in its terins, and must be read in connection with section 1053.

Opening and closing polls: See sec. 1160, post, and note.

1054. Governor's proclamation, what to contain. SEC. 1054. Such proclamation must contain:

1. A statement of the time of election, and of the offices to be filled;

2. An offer of rewards in the following form: "And I do hereby offer a reward of one hundred dollars for the arrest and conviction of any and every person violating any of the provisions of Title IV., Part I., of the Penal Code; such rewards to be paid until the total amount hereafter expended for the purpose reaches the sum of ten thousand dollars." Governor's proclamation. The following from the commissioners' notes explains fully the object expected to be attained by this act: sert in the election proclamation an offer of reThe object of requiring the governor to in wards is the enforcement of the penalties pre- tions a misdemeanor will not stop the practice; tcribed in the code. [Reference is here made but give to every policeman, officer, or other know full well the evils that flow from betting in the enforcement of the law in each case, and to section 60, Penal Code. We of California person a direct interest of one hundred dollars on elections.

ity that results therefrom, the injury to private persons, who often in the heat of a political campaign are pressed into staking their all on the result, is incalculable. Now, the mere fact

that there is a statute making betting on elec

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