that it is in all respects regular, and that the conclusions of law are sustained by the findings of fact. The judgment is therefore affirmed, with costs.

(79 Cal. 105)

Garrett W. McEnerney and David McClure, (R. S. Mesick and M. M. Estee, of counsel,) for appellant. Wilson & Wilson, for respondent.

BEATTY, C. J This is an action instituted by the attorney general under the provis

PEOPLE ex rel. DAVIDSON V. PERRY. (No. ions of chapter 5, tit. 10, pt. 2, Code Civil Proc.

12,537.)

(Supreme Court of California. May 1, 1889.) BOARD OF HEALTH-TERM OF OFFICE-APPEAL CONSTITUTIONAL LAW.

1. The proceeding under Code Civil Proc. Cal. $3802-810, to determine conflicting claims to an office, is substantially equivalent to quo warranto, and is therefore a "case at law," within the meaning of Const. Cal. art. 6, § 4, relating to the appellate jurisdiction of the supreme court.

§§ 802-810, to determine the respective claims of the relator and the defendant to the office of member of the board of health of the city and county of San Francisco. A general demurrer to the complaint was sustained by the superior court, and judgment thereupon rendered in favor of the defendant, from which the plaintiff appeals. It appears from the 2. Where in such proceeding there is a prayer complaint that the defendant was appointed that the court impose a fine of $5,000, as it is by a member of the board of health by the late Code Civil Proc. $ 809, authorized to do in any ac- Gov. Bartlett on the 14th day of April, 1887. tion for the usurpation of an office, in case of a de- He was notified of his appointment on the cision adverse to the defendant, the proceeding is a case at law, embracing a money demand amount- following day, and six days later-April 21, ing, exclusive of interest, to more than $300, and 1887-assumed the office. He took and subthe supreme court has appellate jurisdiction. 3. Pol. Code, § 909, requires the oath of all offi- scribed the official oath, and filed the same cers, whose authority is not limited to any particu- with the secretary of state in due time, but lar county," to be filed in the office of the secre- he has never filed it in the office of the countary of state; and that of all county officers to be ty clerk of San Francisco. In this state of filed in the offices of the clerks of their respective the case, Gov. Waterman on the 23d day of counties. Section 996 provides that an office be comes vacant on the officer's "refusal or neglect to November, 1887, appointed and commisfile his official oath or bond within the time pre- sioned the relator a member of the board in scribed." Id. § 3005, declares that the board of the place and stead of the defendant. Relahealth for the city and county of San Francisco consists of the mayor and four physicians residing tor thereupon, and within 10 days after being in such city and county, appointed by the govern- notified of his appointment, took and subor, and holding their offices for the term of five scribed the oath of office and filed the same years. By section 3007 the board has authority to with the clerk of San Francisco. But the appoint a health officer, not only for the city and county, but also for the port, of San Francisco; defendant, after notice of relator's appointand, by section 3009, a quarantine officer for the ment and qualification, refused, and was susquarantine grounds, which are fixed at the an-tained by the board in refusing, to admit him chorage of Sausalito, in Marin county. All vessels coming into the harbor with cholera, smallpox, etc., must report to the quarantine officer. By section 3022 the board may provide and maintain suitable hospitals at Sausalito. Held, that the members of the board of health are both county officers and officers "whose authority is not confined to any county," and that, as the statute (section 909) makes no provision for such a contingency, their failure to file their oath in the office of the clerk of the county, after filing it in the office of the secretary of state, cannot be regarded as a "refusal or neglect" to file it, so as to work a forfeiture.

sition

*

4. Const. Cal. art. 20, § 16, provides that, "when the term of any officer or commissioner is not provided for in this constitution, the term of such of ficer," etc., "may be declared by law; and, if not so declared, such officer, " etc., "shall hold his po* * during the pleasure of the authority making the appointment, but in no case shall such term exceed four years." The members of the board of health for San Francisco, whose terms of office are by statute fixed at five years, have power to appoint subordinate officers, exercise a general supervision over the sanitary affairs, etc., control the landing of passengers and freight, control burials, abate nuisances, etc. Held, that they are "officers," within the meaning of the constitution, and hence the attempt to make their term of office five years is invalid.

5. The clause relating to the term of office, being invalid, must be regarded as out of the statute entirely; thus leaving the term of office at the pleasure of the governor, the appointing power. The court cannot hold it unconstitutional, only as to the excess over four years.

In bank. Appeal from superior court, city and county of San Francisco; WILLIAM T. WALLACE, Judge.

to the office. These allegations of the complaint, confessed by the demurrer to be true, present the two questions upon which the decision of the controversy depends.

It is conceded that if there was a vacancy in the office at the date of relator's appointment, or if the tenure of the incumbent was during the pleasure of the governor, the title of the relator is valid. And in his behalf it is contended-First, that there was a vacanCy in the office by reason of the failure of defendant to file his official oath in the office of the clerk of San Francisco; and, second, that, whether such vacancy existed or not, the tenure of the office is, under the law and the constitution, at the pleasure of the governor.

But, before entering upon a discussion of these questions, it will be necessary to dispose of a preliminary objection of the respondent to the jurisdiction of this court to entertain the appeal. He claims that the jurisdiction of this court is derived from the constitution alone, and can neither be enlarged nor restricted by the legislature, and he contends that cases of this character are not comprehended in the constitutional enumeration of cases in which this court has jurisdiction. Section 4 of article 6 of the constitution provides as follows: "The supreme court shall have appellate jurisdiction in all cases in equity, except such as arise in justices' courts; also in all cases at law which in

volve the title or possession of real estate, or the legality of any tax, impost, assessment, toll, or municipal fine, or in which the demand, exclusive of interest, or the value of the property in controversy, amounts to $300; also in cases of forcible entry and detainer, and in proceedings in insolvency, and in actions to prevent or abate a nuisance, and in all such probate matters as may be provided by law; also in all criminal cases prosecuted by indictment or information in a court of record, on questions of law alone."

We understand the argument to be that this is not a case in equity, nor a case at law, but that it is an action in a particular case,a special statutory proceeding similar to that under consideration in Houghton's Appeal, 42 Cal. 36. We cannot assent to this view. There is no analogy between this case and the proceeding which the court was asked to review in Houghton's Appeal. That was an assessment of damages and benefits resulting from the change of grade of certain streets. This is a proceeding substantially equivalent to that by quo warranto. It is the same as quo warranto, with something added. Quo warranto was a case at law. It afforded the legal remedy for the usurpation of an office. And we think this court retains jurisdiction of the case, notwithstanding the legislature may have changed the procedure, enlarged the remedy, and given it a new name. To hold otherwise would be to admit a power in the legislature to abridge our jurisdiction, and take from parties the right of appeal, by the easy device of a change of procedure, in many cases where the right and jurisdiction are unquestioned.

|

cers before entering upon the duties of their respective offices. Section 904 of the Political Code contains a similar provision. Sections 907 and 909 are as follows: "Sec. 907 Whenever a different time is not prescribed by law, the oath of office must be taken, subscribed, and filed within ten days after the officer has notice of his election or appointment, or before the expiration of fifteen days from the commencement of his term of office, when no such notice has been given." "Sec. 909. Every oath of office certified by the officer before whom the same was taken must be filed within the time required by law, except when otherwise specially provided, as follows: (1) The oath of all officers whose authority is not limited to any particular county, in the office of the secretary of state; (2) the oath of all officers elected or appointed for any county, and of all officers whose duties are local, or whose residence in any particular county is prescribed by law, in the offices of the clerks of their respective counties; (3) each judge of a superior court and county clerk must, so soon as he has taken and subscribed his official oath, file a copy thereof, signed with his own proper signature, in the office of the secretary of state."

If the defendant was such an officer as is described in the first subdivision of section 909, he was clearly right in filing his oath of office with the secretary of state. If he was such an officer as is described in the second subdivision, he would have been as clearly right in filing his official oath with the county clerk. It happens, as we construe the act creating the office, that it is embraced by This case also sustains the other test of ju- both subdivisions. The authority of the risdiction. It embraces a money demand board is not limited to any particular county, amounting, exclusive of interest, to more but residence of the members in a particular than $300. The office, it is true, is purely county is prescribed by lar "The board of honorary, the incumbent being entitled to health for the city and councy of San Franno salary or other pecuniary reward. But cisco consists of the mayor of the city and the court may, in its discretion, in any action county, and four physicians in good standing, for the usurpation of an office, in case of a residing in the city and county of San Frandecision adverse to the defendant, impose, as cisco, appointed by the governor, and holdpart of the judgment, a fine of $5,000, (Code ing their offices for the term of five years." Civil Proc. § 809;) and in this case such Pol. Code, § 3005. But the board has aujudgment is prayed. Without reference, thority to appoint a health officer, not only therefore, to the numerous "particular cases" for the city and county, but for the port, of in which this court has assumed and exer- San Francisco. Section 3007. The quaran cised appellate jurisdiction, or the cases (such tine grounds of the bay and harbor of San as Palache v. Hunt, 64 Cal. 474, 2 Pac. Rep. Francisco are fixed at the anchorage of Sau245) in which it has been held that a mean-salito, in Marin county. Section 3004. The ing must be attributed to the section of the constitution above quoted broader than is contained in its express terms, we feel fully warranted in holding that we have jurisdiction of this appeal, as a case at law in which there is a demand, exclusive of interest, exceeding $300.

board appoints a quarantine officer. Section 3009. All vessels coming into the harbor with cholera, small-pox, etc., must report to the quarantine officer. Section 3013, and see sections 3014-3017. The board may provide and maintain suitable hospitals at Sausalito. Section 3022. In short, they may exercise Coming then, to the merits of the contro- authority, not only in San Francisco, but in versy, we will consider, first, whether there all the counties including any part of the bay was a vacancy in the office, caused by defend- of San Francisco, and especially in Marin. ant's failure to file his official oath with the Was it, then, the intention of the legislature county clerk. Section 3 of article 20 of the that these officers should file their official the constitution provides the form of official | oath in two places,—one with the secretary of oath to be taken and subscribed by all offi-state, and another with the county clerk?

Or was it sufficient to file in one place, with St. 1869-70, p. 716. Its main provisions the clerk or the secretary, as they might were subsequently incorporated into the choose? We have little doubt that in fram- Political Code, § 3004 et seq., and it was afting the provisions of section 909 of the erwards supplemented by several statutes, all Political Code it was intended and understood passed prior to the adoption of the new conthat subdivisions 1 and 2 should embrace dis- stitution. By section 2 of the act correspondtinct categories, mutually exclusive, and ing to section 3004 of the Political Code, the that the case of an office embraced under membership of the board is prescribed, and each was never contemplated, and conse- the term of its members, other than the mayor quently that it was not in fact intended that of San Francisco, who is ex officio a member, the oath should be filed in both places; but, is fixed at five years. The authority conat the same time, it is no doubt true that an | ferred upon the board embraces the power to officer whose residence in San Francisco is appoint subordinate executive officers, to exprescribed, but whose authority extends to ercise a general supervision over all matters other counties, does not fully and literally appertaining to the sanitary condition of the comply with the directions of the statute un-city, to control the landing of passengers and less he files his oath of office with both the freight, to seclude persons affected with concounty clerk and the secretary of state. The tagious diseases, control burials, and abate question, however, still remains, does a nuisances. There can be no doubt, we failure to comply with this improvident ex- think, that this constitutes the members of igency of the law in its literal terms work a the board "officers," within the meaning of forfeiture of the office? By section 996 of that term as used in article 11, § 7, of the the Political Code it is provided that "an old constitution. Unlike the commissioners office becomes vacant on the happening of of the funded debt, who in People v. Middleeither of the following events: * * * (9) ton, 28 Cal. 605, were held not to be officers His refusal or neglect to file his official oath or within the meaning of the section referred bond within the time prescribed." Inde- to, the members of this board exercise impendent of this provision of the Code, the re- portant police powers pertaining to the adquirement as to filing the oath within a cer- ministration of the state government, and tain time might well be treated as merely are officers according to the strictest definidirectory, not working a forfeiture in case of tion of the term. So much of the act, therenon-compliance, and we are not prepared to fore, as fixed the duration of their office at hold that an officer who by the first subdivis- five years, was in direct conflict with the secion of section 909 is directed to file his offi- tion cited from the constitution of 1862, then cial oath with the secretary of state, and by in force, which reads as follows: "Sec. 7. the second subdivision is directed to file the When the duration of any office is not prosame oath with the county clerk, has, within vided for by this constitution, it may be dethe meaning of the section denouncing a clared by law; and, if not so declared, such forfeiture of the office, (996,) refused or neg-office shall be held during the pleasure of the lected to file his official oath, when he has, in authority making the appointment; nor fact, filed it with the secretary of state. shall the duration of any office not fixed by Provisions for forfeiture of vested rights, this constitution ever exceed four years.' whether in statutes or contracts, are not fa- And we think it is equally in conflict with vored, and are, as they ought to be, construed the corresponding provision of the new conas strictly or as liberally as possible against stitution, which reads as follows: "When the forfeiture. In this case it is not literally the term of any officer or commissioner is not true that the officer has neglected or refused provided for in this constitution, the term of to file his oath of office. The most that can such officer or commissioner may be declared be said is that he has neglected to file it in by law; and, if not so declared, such officer or one of the two offices where, by apparent in- commissioner shall hold his position as such advertence, the legislature has, upon a doubt-officer or commissioner during the pleasure ful construction, directed it to be filed. of the authority making the appointment; Having complied with the constitutional re- but in no case shall such term exceed four quirement of taking and subscribing the years." Article 20, § 16, Const. oath, and satisfied the object and policy of The argument of counsel for respondent, the statute by filing it in the office where that this section of the new constitution restate officers (to which class he belongs,-fers exclusively to officers mentioned in the Pol. Code, §§ 343, 360, 3005) generally are required to file their official oaths, we think he is protected against the forfeiture, and that, if the relator is entitled to the office, it is only because the members of the board of health hold at the pleasure of the appointing power.

The act creating the board of health was passed April 4, 1870, and was entitled: "An act to establish a quarantine for the bay and harbor of San Francisco, and sanitary laws for the city and county of San Francisco."

constitution itself, and not to officers of statutory creation, is ingenious, but not convincing. In its terms the section embraces all classes of officers, statutory as well as constitutional, and no considerations of policy are suggested requiring any abridgment of its apparent meaning. The words "such term," in the last clause, evidently refer, as their antecedent, to the term to be declared by law when not provided in the constitution. And it is contrary to the whole tenor and spirit of the constitution to suppose that,

PEOPLE v. MCCARTHY. (No. 13,047.) (Supreme Court of California. May 1, 1889.) In bank.

PER CURIAM. For the reasons stated in People v. Perry, ante, 423, (opinion this day filed,) the judgment of the superior court is reversed, and the cause remanded for further proceedings in ac cordance with the views therein expressed.

(78 Cal. 581)

In re ALLEN'S ESTATE. (No. 12,839.) (Supreme Court of California. April 18, 1889.) EXECUTORS-RESIGNATION.

1. A paper signed by the executrix of her deceased husband's will, after her second marriage, reciting the fact of her marriage, and that she has thereby become incompetent to act as executrix, and requesting the court to confer upon a person mentioned therein the appointment of an administra tor, is the equivalent of a resignation, within Code Civil Proc. Cal. § 1427, providing that an executor may resign by filing a writing to that effect in the superior court, having first settled his accounts, and delivered up the estate to the person appointed by the court to receive it; and, there being no evidence to the contrary, it will be presumed, after the court has appointed her successor, that she has settled her accounts, and paid over the funds.

while its framers carefully limited the terms of all executive officers by them created within the period of four years, they would give unlimited power to the legislature to create offices with terms extending indefinitely beyond that period. We must hold, therefore, that the clause of the act fixing the term at five years is unconstitutional; and unless we can at the same time hold, in accordance with the contention of respondent, that it is only unconstitutional as to the excess of the term attempted to be fixed over that permit ted by the constitution, it follows that no term has been declared by law, and consequently that the defendant held at the pleasure of the governor, and that the relator's title is valid. It is, of course, a familiar doctrine that an entire legislative act will not be declared invalid merely because some single section or isolated provision is in conflict with the constitution. If this were not so, it would follow that the attempt of the legislature in the act under consideration to make the term of the members of the board of health five years had the effect of destroying the entire statute. It is clear, we think, under the authorities, that no such effect follows, and that, on the contrary, the act is in other respects valid and in force. But we know of no precedent for holding that a clause of a statute, which as enacted is unconstitutional, may be changed in meaning in order to give it some operation, when admittedly it cannot operate as the legislature intended. This would, it seems to us, be making a law, and not merely correcting an excess of authority. Our conclusion is that the legislature has failed to fix the term of the members of the board of health; that BELCHER, C. C. James Allen, a resident the term of the office is at the pleasure of the of the city and county of San Francisco, died governor; and that on the case presented by in the month of October, 1887, leaving a this record relator is entitled to the office. will, which was admitted to probate in DeFor these reasons the judgment of the supe-cember of that year. Margaret Allen, the rior court is reversed, and the cause remanded, with directions to said court to overrule the deinurrer, and for further proceedings in accordance with the views herein expressed.

2. Such an executrix is not within Code Civi Proc. Cal. § 1365, subd. 1, authorizing a surviving istrator, as by her subsequent marriage she loses wife, to nominate her deceased husband's admin her status as surviving wife, and becomes only an heir or legatee.

Commissioners' decision. Department 2. Appeal from superior court, city and county of San Francisco; J. V. COFFEY, Judge.

O'Brien, Morrison & Daingerfield and Davis Louderback, for appellants. Naphtaly, Friedenrich & Ackerman, for respondent.

widow of deceased, was appointed executrix of the will, and duly qualified as such. On the 2d day of April, 1888, Mrs. Allen married one John F. Von Muegge, and has ever since been his wife. Four days later, on the 6th of April, Frederick Eulert filed in court

We concur: WORKS, J.; MCFARLAND, J.; a petition asking to be appointed adminis PATERSON, J.

PEOPLE V. CLINTON. (No. 13,045.) (Supreme Court of California. May 1, 1889.) In bank.

trator of the estate of deceased with the will annexed, and with his petition he also filed a paper, subscribed by Margaret Von Muegge, which reads as follows: 'Superior Court, San Francisco, Department Nine. In the Matter of the Estate of James Allen, deceased. I, PER CURIAM. For the reasons stated in People the undersigned, surviving wife of the abovev. Perry, ante, 423, (opinion this day filed,) the judg-named deceased, hereby request Dr. Frederick ment of the superior court is reversed, and the cause remanded for further proceedings in accordance with the views therein expressed.

PEOPLE V. ROSENSTIRN. (No. 13,046.) (Supreme Court of California. May 1, 1889.) In bank.

PER CURIAM. For the reasons stated in People v. Perry, ante, 423, (opinion this day filed,) the judgment of the superior court is reversed, and the cause remanded for further proceedings in accordance with the views therein expressed.

Eulert to accept the office of administrator with the will annexed of said deceased, to serve in my place and stead, as I became the wife of John F. Von Muegge on the 2d of April, 1888, and am no longer authorized to be or act as executrix of the last will and testament of said deceased; and I hereby request the above-named court to appoint said Eulert as administrator with the will an nexed." On the 20th of April, William A len, the eldest son of deceased, filed a peti

to receive the same." Section 1427, Code Civil Proc. It is true it does not appear that the executrix had settled her accounts or turned over the estate, nor does the contrary appear. It must be presumed, therefore, in support of the action of the court, that the law in this respect was fully complied with. It is suggested that the executrix should have had an opportunity to appear in court, and contest the averment of her marriage and the genuineness of the paper asking for Eulert's appointment; but she was in court when the special administrator was appointed, and excepted to the order. She did this under the name of Margaret Von Muegge, and, so far as the record shows, no question was then or ever made in that court as to the fact of her marriage, or the genuineness of the paper referred to. Our conclusion is that the case of Schroeder v. Superior Court, supra, is not in point, and that, under the circumstances shown by the record here, the court below had jurisdiction to make the orders appointing both the special and general administrator, and that its action in this regard must be upheld.

tion asking that letters of administration on | resign his appointment, having first settled the estate be issued to him, and on the same his accounts, and delivered up all the estate day, upon his motion, James C. Pennie, the to the person whom the court shall appoint public administrator of the city and county of San Francisco, was appointed special administrator of the estate, "whereupon," as stated in the bill of exceptions, "said Eulert and Margaret Von Muegge excepted." On the 3d of May, William Allen renounced his right to letters, and nominated Pennie for the office, and thereupon on the same day Pennie filed his petition asking to be appointed administrator of the estate with the will annexed. Notices of the several applications were posted as required by law, but no citation to show cause why her letters testamentary should not be revoked was ever issued or served upon Mrs. Von Muegge, nor did she ever consent to any revocation thereof, or resign her office as executrix, except as hereinbefore stated. When the applications came on to be heard, the court denied the petition of Eulert, and granted that of Pennie, and letters were issued to him on the 29th of May, 1888. From this last order Eulert and Mrs. Von Muegge have appealed. In support of the appeal two points are made by the appellants: First, that the court had no authority to direct that special or general letters be issued to Pennie until an order had been made, after notice and hearing, revoking the letters issued to the executrix; and, second, that Mrs. Von Muegge had a right to nominate her successor.

As to the second point: When Mrs. Von Muegge requested the court to appoint Eulert as administrator, she had ceased, by reason of her second marriage, to be the widow, or in any strict sense the surviving wife, of the deceased. She had become incompetent to be appointed or to serve as executrix of the will. In Estate of Cotter, 54 Cal. 215, and in Estate of Stevenson, 72 Cal. 164, 13 Pac. Rep. 404, it was held that, under subdivision 1, § 1365, Code Civil Proc., a surviving wife, though a non-resident of the state, might nominate a person to act as administrator of her deceased husband's estate.

In support of the first point, the case of Schroeder v. Superior Court, 70 Cal. 343, 11 Pac. Rep. 651, is cited and relied upon. In that case the petitioner was appointed executrix of the will of her deceased husband, and afterwards married. Special letters of administration upon the estate were then issued, the executrix never having resigned her trust, or been suspended or removed, or notified to appear and show cause why her let-But the subdivision referred to does not ters should not be revoked, and it was held that, under the circumstances shown, the superior court had no power to make the order appointing a special administrator; the decision, it would seem, resting mainly upon the fact that when section 1352, Code Civil Proc., is read in connection with other sections, the words, “her authority is extinguished," used in that section, must be construed as only the equivalent of "she ceases to be competent."

meet the case in hand. Here the trouble is not that the surviving wife was a non-resident, but that she had lost her status as such, and become only an heir or legatee of the decedent. The rule declared in the Estate of Morgan, 53 Cal. 243, seems, therefore, to be applicable. In that case the nomination was made by the heirs and next of kin of deceased, and it was held that, as they were married women, and therefore incapable of administering upon the estate, their That case differs from this in an important expressed preferences for the appointment of particular. Here the court finds that the ex- the administrator "were of no legal conseecutrix, after her appointment, married and quence whatever." It was further held that became the wife of Von Muegge, and that the in any event the nominations were addressed paper signed by her, and reciting the fact of to the mere discretion of the court, and were her marriage, and that she was "no longer not controlling. See, also, Estate of Beech, authorized to be or act as executrix," and 63 Cal. 458. It results, in our opinion, that asking the court to appoint Eulert adminis- the order appealed from should be affirmed. trator of the estate, has been filed in court. That paper was the equivalent of an express resignation of her trust, and the court had the right to receive and act upon it as such. "Any executor or administrator may, at any time, by writing filed in the superior court,

We concur: FOOTE, C.; HAYNE, C.

PER CURIAM. For the reasons given in the foregoing opinion the order appealed from is aflirmed.