People ex rel. Attorney-General v. Scannell

Citations

• 7 Cal. 432

Syllabus

<p>An information in the nature of a quo warranto, is the proper proceeding to try the title to an office.</p> <p>In a proceeding against an officer de facto, to compel him to deliver the books and papers of his office to a party claiming the office, the plaintiff must show prima facie— first, that a vacancy existed, and second, that he is entitled to fill it.</p> <p>Where the law requires an officer to file a new bond within two days after the meeting of the supervisors, the officer has the whole of the two days succeeding the day of meeting, to execute and present his bond.</p> <p>Where the board of examiners, authorized to approve the new bonds required by law of the officers then in office, refuse to act, an officer already in office, is not compelled to sue out a mandamus to compel such action; and he may set up such failure to act, in defending his right to the office.</p> <p>The refusal to act by a board of officers, when required by law to act, is not the exercise of a discretion, and is conclusive upon no one. The failure to approve of an official bond is not the fault of the officer—it does not release his sureties—nor can it work a forfeiture of his office.</p> <p>The defendant being elected sheriff of the county of San Francisco, in September, 1855, on July 26, 1856, and after the Consolidation Act went into effect, one of the defendant’s sureties applied to the County Judge to be released from further liability; on the sixth of August, the Judge declared the office vacant, by reason of the failure of defendant to file new bonds: Held, that the County Judge had no jurisdiction—the new law, then in force, vesting the power of approving the bonds of such officer, in the County Judge, auditor, and president of the board of supervisors.</p>