People ex rel. Wicks v. Jones , 20 Cal. 50 ( 1862 )

Norton, J. delivered the opinion of the Court—-Field, C. J. and Cope, J. concurring.

This action is brought under the provisions of the Practice Act concerning actions for the usurpation of an office or franchise, to determine the right to the office of District Attorney of Sonoma county. The appellant’s counsel makes three objections to the judgment:

1st. It is objected, that inasmuch as the defendant entered into the office by virtue of a certificate of election, he entered lawfully, and is not an “ intruder ” or “ usurper,” or one who “ unlawfully holds or exercises” the office, and hence is not hable to be proceeded against by virtue of section three hundred and ten of the Practice Act. The certificate of election, however, is only prima facie evidence of the defendant’s right to the office. The real right or title to the office comes from the will of the voters, as expressed at the election. If the office was in fact given by the voters to another, the possession by the defendant of the certificate affords him, at most, but a color of title, and does not invest him with the right which belongs to the other. (Magee v. The Board of Supervisors of the county of Calaveras, 10 Cal. 376.) If he has not the right and the real title, he holds unlawfully. ■2d. It is objected, that the complaint does not allege, nor does the Judge find that Salt Point was a “ precinct ” at which an election could have been held. The complaint avers that at the general election of 1861, an election for the office of District Attorney of the county of Sonoma was held in that county, and that Wicks was, by the greatest number of votes cast in said county, elected District Attorney. The answer denies that Wicks was elected. The Court finds that such an election was held, and that at such election Wicks received the greatest number of votes cast in the county for District Attorney. The right to the office depends upon the majority of the votes given in the county, and the allegations of the complaint and the findings of the Court upon this point are sufficient to sustain the judgment. But the fact that Salt Point was an election precinct sufficiently appears, both by the averments of the complaint and the findings of the Court. After the averments showing the election of Wicks above mentioned, the complaint proceeds to make certain statements showing how it occurred that the certificate was given to Jones, and for this purpose avers that when the board of canvassers proceeded to canvass the votes, it was discovered “ that the election returns of the election held in Salt Point township, at the precinct therein,” were irregular, and afterwards frequently refers to the said election held in said township, and to the precinct in said township. The answer denies that “ any election was legally held at Salt Point precinct, in the said county of Sonoma,” and afterwards, in specifying certain proceedings claimed to be irregularities, rendering the election void, refers to said election as occurring at said township or precinct, without distinction. The complaint and answer in various places uses the word “ township ” and “ precinct ” as synonymous. The Court finds that an election was held at Salt Point township, and in the findings uses the words “ township ” and “ precinct ” as synonymous. The statute (Woods’ Dig. art. 2125) provides that there shall be a precinct for holding elections in each township, designated by the Board of Supervisors. Mo objection being taken by demurrer or otherwise on this ground, and the statute requiring that there shall be an election precinct in each township, and the words township and precinct being used throughout the pleadings on both sides as synonymous expressions, we think it must be held at this stage of the case that it is sufficiently averred in the complaint and found by the Court that there was an election precinct at Salt Point.

3. It is objected, that the findings of fact were filed and the judgment entered out of term, and that there is no judgment or action of the Court below which this Court can affirm or reverse. This action was tried by the Court, without a jury, at the October term of the Court for 1861, for the county of Sonoma, and the findings of the Court were filed and judgment entered on the twentieth day of December, 1861. The Practice Act (section one hundred and eighty) provides that upon a trial by the Court, its decision shall be filed within ten days after the trial took place, and then the judgment is to be entered. It is not required that this shah be done in term. In the case of Smith v. Chichester (1 Cal. 409) decided in April, 1851, on facts occurring in 1850, it was held that an order of reference and a judgment following thereon being both entered in vacation, were irregular, and they were set aside. Since then, in some other cases, it has been said that a judgment could not be entered in vacation, merely upon the authority of that case; and without considering how far that case was influenced by the fact that the order of reference on which the judgment was founded was entered out of term; and especially, without adverting to the fact that after that decision, when the Practice Act was remodeled in 1851, it was expressly provided by section one hundred and forty-four that a judgment may be entered in term or vacation. In the case of Marysville v. Buchanan (3 Cal. 214) the Court say: “ The rule in force in some States, that judgment cannot be entered and execution issued in vacation, has no existence in this State. (See Practice Act, secs. 144-209.”) This remark has a general application, although made in reference to a judgment entered upon a remittitur from this Court. The same thing was said in the case of McMillan v. Richards (12 Cal. 467.) There are other provisions of the Practice Act which also contemplate the entering of judgment in vacation, or without regard to whether it be vacation or term, as upon failure to answer on personal service of summons and upon the report of a referee. Under the influence of the two cases last cited, and the direct provisions of section one hundred and forty-four, and of the other provisions of the Practice Act above alluded to, it has become the general practice throughout the State to enter judgments on defaults, and upon the findings of the Court and the report of referees in vacation as well as term. But the counsel for the appellant cites the provision of the Constitution that the times and places of holding the terms of the District Courts shall be provided for by law, from which he argues that the Courts cannot hear and determine cases, or render judgments, except during the terms to be fixed by the Legislature, and in support of this view he cites the case of Wicks v. Ludwig (9 Cal. 173). It may be true that a Judge cannot hold a Court or transact such business as by law is required to be done in term at any other time than that designated by law for holding a term of the Court, and tins is the extent of the decision in the case of Wicks v. Ludwig ; but we see nothing in this provision of the Constitution which prohibits the Legislature from authorizing a judgment to be entered in vacation, upon filing the decision or findings of the Court on a trial which has been duly had at a regular term.

. Judgment affirmed.