Opinion
Department One
Hearing in Bank denied.
Appeal from a judgment of the Superior Court of Santa Clara County, and from an order refusing a new trial.
COUNSEL:
J. C. Black, for Appellant.
W. L. Gill, for Respondent.
JUDGES: Ross, J. McKinstry, J., and Myrick, J., concurred.
OPINION
ROSS, Judge
In 1877, the plaintiff, French, was duly elected one of the justices of the peace for Milpitas township of Santa Clara County, qualified as such, and entered upon the discharge of the duties of the office. At the election in [11 P. 31] 1879, one Topham was elected as the successor of French, but he failed to qualify, and French held over. In 1882, French was again voted for, and elected a justice of the peace for said township, -- the board of supervisors of the county having meanwhile provided, pursuant to statute, for the election of but one justice for that township. French failed to qualify, however, but continued to discharge the duties of justice, and for certain services thereafter rendered as such claimed the fees allowed by law. His right to maintain the present action therefore depends upon the question whether or not he was rightfully discharging the duties of the office at the time of rendering the services.
It is urged for the appellant that the character of the office was changed by the reduction of the number of justices, and by reason of the fact that the legislature, pursuant to the provisions of the constitution of 1879, enlarged the jurisdiction of justices' courts. We do not think so. Justices' courts were not abolished, but on the contrary, expressly continued in force by the constitution of 1879. (Sec. 3, art. 22.) Undoubtedly, the failure of Topham to qualify after the election of 1879, and the failure of the plaintiff to qualify after the election of 1882, left a vacancy in the office, which the board of supervisors could have filled by appointment, and such appointee, when qualified, would have been legally entitled to the office. (People ex rel. Showers v. Taylor , 57 Cal. 621.) But until the qualification of the person duly elected or appointed, as the case may be, the former incumbent is legally entitled to the office, by virtue of section 879 of the Political Code, which provides that "every officer must continue to discharge the duties of his office, although his term has expired, until his successor has qualified."
Judgment and order affirmed.