Payne v. City of San Francisco , 3 Cal. 122 ( 1853 )

Wells, Justice,

delivered the opinion of the court. Heydenfeldt, Justice, concurred.

To entitle the plaintiff to recover in the court below, it wasincumbent upon him to show, not only tha' o March, 1852, but, first, that he had been lawfully elected; and second, that he had qualified himself to hold the office, by taking the oath, and filing the bond, at the time and in the manner required by law. To entitle the plaintiff to recover in the the duties of the office of Street Commissioner for the month of

The validity of his election is conceded. The election took place on the 3d day of September, 1851, and the plaintiff took the oath of office before the Mayor of the City of San Francisco, on the 30th day of December following, and filed his bond on the 7th of January, 1852. Was this a compliance with the requirements of the law ?

The Charter of the city provides (art. iv., sec. 15), that, “ If any person elected to a city office shall remove from the city, absent himself therefrom for more than thirty days, or shall fail to qualify within ten days after his election, his office shall be deemed vacant.”

This provision we regard as being peremptory and positive in its terms. It differs essentially from those provisions of law which are construed by the courts as being merely directory; and it does not come within the rule established by this court in the case of The People, ex relatione Harris v. Benham.

Harris qualified within ten days after the result of the election was certified by the county clerk, and the decision of the court was in reference to the time of declaring the result and the issuing of the certificates. The relator could hardly have been said to have been elected until the returns were made out, and the certificate issued, and the statute is regarded as merely directory as to the time of making such return, and issuing the certificate; neither does it come within the rules of the authorities cited, in The People v. Allen, Sheriff, &c., 6th Wendall, 486, and 3d Hill, Exparte Heath and Others, p. 42. It is admitted to be well settled as a general rule, that where a statute specifies the time within which a public officer is to perform an official act, regarding the rights and duties of others, it will be considered directory merely, unless the nature of the act to be performed, or the language of the legislature shows, that the designation of the time was intended as a limitation of the power of the officer; thus, where an act requires a sheriff to file a certificate of sale within ten days, his omission or neglect to do so within the specified time does not affect the validity of the sale; and where a statute requires am act to be done by an officer within a certain time for a public purpose, though he neglect his duty by allowing the precise time to go by, if he afterwards perform, the public shall not suffer by the delay. An election is not rendered void by reason of the inspectors failing to make the returns within a specified time, nor will an assessment be invalidated by the omission of the assessors to assess the tax within a particular time. There is a broad distinction, however, between these cases and the one at bar, wherein the act to be performed was.not an official act regarding the rights of others ; nor was it for a public purpose, nor one in which the parties could suffer from the delay: it was not to affect the rights of third parties, but his own right. It affected him, the officer, his rights and duties; it came within the exception; the nature of the act to be performed, and the language used by the legislature, showing that the designation of the time was intended as a positive limitation; and after having been declared duly elected by the proper officer, the plaintiff has no choice but to accept or forfeit the office. His neglect to qualify within the ten days was a refusal on his part to serve, and vacated the office, so far as he had any right or claim thereto. This position is sustained in The People, ex relatione Platnar v. Jones, 17 Wendall, p. 81, and cases cited, besides numerous other authorities.

Not only did the plaintiff fail to qualify in time, but it does not appear that he ever qualified before a proper officer. The Mayor of the City of San Francisco had no power or authority to administer the oath of office; such power is claimed for him, however, upon the ground that the authority to administer oaths generally was conferred upon him impliedly by a provision of the Charter, taken in connection with a section of the Practice Act. A glance at these provisions will serve to show how untenable is this position. The Charter provides (art. 4, sec. 2, second subdivision, defining the duties of the Mayor, as “head of the police,”) “ That the Mayor shall have power to receive and examine into all such complaints as may be preferred against any of them (the subordinate officers of the police), for violation and neglect of duty, and to certify the same to the Common Council.” And the Practice Act provides (chap. 8, sec. 442), that “ every court of this state, every judge or clerk of any court, every justice of the peace, every notary public, and every officer authorized to take testimony, or to decide upon evidence in any proceeding, shall have power to administer oaths or affirmations.”

The word proceeding has an understood signification in law, and it will not be seriously insisted upon in a legal argument that the power of the Mayor as “head of the police,” to “ receive and examine into” complaints against a policeman for neglect or violation of duty, is a proceeding in a legal sense, nor that the duty imposed upon him to certify such complaint is an authority to “ decide upon evidence” in such proceedings. It is even doubtful whether he could administer an oath in examining complaints against policemen, which he had no right to decide, but could only certify to the Council. Surely, then, it will not be urged that this duty clothed him with authority to administer oaths generally; much less can it be inferred that the other and separate power of administering the oath of office was bestowed upon him. Such was clearly not the intention of the legislature, as is manifest from the “act concerning officers” (art. v., s. 27: “ Of the oath of office”), passed subsequently to the passage of the act creating the Charter.

The next proposition advanced by the appellant is, that, having been recognized as Street Commissioner by a joint resolution, passed by the Common Council, and approved by the Mayor, and having, under the direction of the Mayor and Common Council, performed services as such, he is entitled to recover what those services were worth. It is hardly necessary to argue such a point as this. The work claimed to have been done was in the performance of the duties of Street Commissioner,-—duties incident to and belonging to the office. The office of Street Commissioner is separate and distinct in its character and functions from the Common Council: it is created and made elective by the Charter, which prescribes how the officer shall be elected, his qualifications, and the manner in which a vacancy in the office shall be filled. The Common Council can neither create a Street Commissioner, or fill a vacancy in the office, nor can it direct that the duties of the office shall be performed by any person other than the lawful incumbent. It may, in the exercise of its legislative power, prescribe the duties of the officer, but it is no more within the scope of its authority to employ a Street Commissioner, or a person to perform the duties attached to the office, than it is to fill a vacancy, or to employ a person to perform the duties of the Mayor or Recorder.

The plaintiff, not being the lawful Street Commissioner, the Mayor and Common Council had no right to contract with him for the services rendered, and he cannot therefore recover upon the quantum meruit. The services were rendered by him as Street Commissioner, they belonged to the office, and for which the salary fixed for that office is the only and full compensation fixed by law.

Not being Street Commissioner de jure, neither was he defacto. William Divier was the lawfully elected and qualified Street Commissioner previous to September 3d, 1851. He continued to hold the office, and exercise the duties without interference, until the 7th of January, 1852, when the plaintiff demanded the office, and the books belonging to it, which Divier refused to surrender, and continued to hold over. He had a right to do so until his successor was duly elected and qualified, and was, and is, entitled to hold against all claimants, to discharge its duties and receive its emoluments, until the office is regularly filled by an election, as provided by the Charter; until then, he could not be ousted, except by suit, or by impeachment and conviction. And it is quite as absurd to say, that the Mayor and Common Council could bestow the office upon the plaintiff by a joint resolution, as that they could deprive Divier of his legal rights by the same means j as unreasonable as to claim that the resolution of recognition, which at one time is set up as constituting a contract, shall, at another point in the argument, be considered upon presumption as an official return and certificate of election.

Upon a full examination of the case, we regard the appeal as entirely destitute of merit, and order that the judgment be affirmed.