Summary
In People v. Hartwell, supra, the county tax collector ceased for more than three consecutive months to perform the duties of his office under the mistaken belief that the treasurer was from and after a certain date ex-officio tax collector and then brought an action to oust the treasurer and have himself reinstated.
Summary of this case from McCluskey v. HunterOpinion
Department One
Appeal from a judgment of the Superior Court of Monterey County.
COUNSEL:
The office of tax collector has never been vacant. An office is not vacant where there is a de facto incumbent. Defendant has always, since the relator gave him the office, been the de facto tax collector, and the most that can be said is that the relator has allowed another person to perform the duties of his office.
A. L. Hart, N. A. Dorn, and W. M. R. Parker, for Appellant.
D. M. Delmas, W. H. Webb, and James A. Wall, for Respondent.
JUDGES: McKee, J. McKinstry, J., and Ross, J., concurred.
OPINION
McKEE, Judge
Under the provisions of chapter 5, title 10, of the Code of Civil Procedure, this action was commenced to oust defendant from the office of tax collector of Monterey County, and reinstate the relator. The court by its judgment ousted the defendant, but refused to reinstate the relator; and from so much of the judgment as denied the right of the plaintiff to the office, the relator as well as the people appeal.
The judgment was rendered upon a finding of facts which shows that the relator was the duly qualified tax collector of Monterey County from March, 1878, until the first Monday of March, 1880, during which time he continued to discharge the duties of the office. But on the last-named day he voluntarily surrendered the office to the defendant upon the mistaken belief that the defendant, who had been elected, at the general election of 1879, treasurer of Monterey County, was ex-officio tax collector of the county, and his rightful successor in office. Upon that belief he acted for two years, during all which time he ceased to discharge the duties of the office, and made no demand of the defendant, to whom he had surrendered it, to be restored thereto.
Public office is held upon the implied condition of diligently and faithfully executing the duties belonging to it; and a wilful refusal [6 P. 874] to perform the duties works a forfeiture. (King v. Rook, 2 Raym. Ld. 237; Rex. v. Wells, 4 Burr. 2004.) By the surrender and non-user of the office for a period of two years relator therefore forfeited his right to it. The office became vacant. Section 996 of the Political Code provides:
" An office becomes vacant. .. . by the incumbent's ceasing to discharge the duties of his office for the period of three consecutive months, except when prevented by sickness, or when absent from the State by permission of the legislature." And being vacant, it was subject to be filled by the appointing power. (Section 4115, Pol. Code.)
Judgment affirmed.