People ex rel. Fleming v. Shorb

Citations

• 100 Cal. 537
• 35 P. 163
• 1893 Cal. LEXIS 830

Syllabus

<p>Office and Officer—Vacancy—Absence From State—Appointing Power. —Under Section 996 of the Political Code, which provides that an office becomes vacant upon the happening of certain specified events before the expiration of the term, one of which is the absence of the officer from the state for a period of more than sixty days, without permission of the legislature, the absence of an officer for such a period effects a vacancy ipso facto, which the appointing power has the right to fill upon satisfactory evidence of the absence, without the institution of legal proceedings, though the incumbent is not thereby concluded as to the fact of the occurrence of such event.</p> <p>Id.—Quo Warranto—Ouster of Deputies of Absent Treasurer-Absence from Sickness.—In an action in the nature of a quo warranto information against a county treasurer and his deputies on the relation of one claiming the office of treasurer by virtue of an appointment, where the complaint alleged that the treasurer had been absent from the state for a period of over sixty days without the consent of the legislature or the board of supervisors, .by reason of which the office became vacant, whereupon the relator was appointed as county treasurer, and that the former treasurer was still absent from the state, and the answer of his deputies admitted his absence, alleging that it was caused through sickness, a judgment in favor of the relator as against the deputies is proper.</p> <p>Id.—Cause of Absence Immaterial.—The fact that the absence of the treasurer from the state was necessary to his health and that its continuance beyond the sixty day limit was inevitable by reason of his sickness, is immaterial, as absence from the state without the consent of the legislature or board of supervisors for over sixty days absolutely effects a vacancy in the office regardless of the cause.</p> <p>Id.—Qualification of Relator—Approval of Bond—Demurrer.—The question whether the official bond of the relator has been