SEC. 865. In all cases not otherwise provided for, each deputy possesses the powers and may perform the duties attached by law to the office of his principal. of these cases is that deputies are known to the law, and that courts will take judicial notice of their acts. The earlier Texas decisions inclined to this view of the matter: Miller v. Alexander, 13 Tex. 497; Towns v. Harris, Id. 507; but subsequently adopted the rule as first above stated: Jordan v. Terry, 33 Id. 680; Arnold v. Scott, 39 Id. 378. A deputy county clerk may take an acknowledgment and sign the clerk's name by himself as deputy: Talbot v. Hooser, 12 Bush, 408; Trout v. Williams, 29 Ind. 18. So the name of the district attorney may be signed to an information by his deputy: People v. Darr, 61 Cal. 554. Deputies.-County and township officers may appoint as many deputies as may be necessary for the faithful and prompt discharge of the duties of the office. This is conceded by the code, section 4112, post, and is a general principle as regards ministerial duties: Taylor v. Brown, 4 Cal. 188; Jobson v. Fennell, 35 Id. 711. Parol appointment is valid: Bonds v. State, 17 Am. Dec. 795; Sharp v. Thompson, 100 Ill. 447. But not so where required by statute to be in writing: See sec. 894, post; Tidball v. Halley, 48 Cal. 610. Judicial offiters cannot, at common law, act by deputies: Jobson v. Fennell, 35 Cal. 711. The powers of the deputy are coextensive with those of his principal: Miller v. Boggs, 25 Cal. 175; but must be exercised in the principal's name: Joyce v. Joyce, 5 Id. 449, the court there saying with reference to the return of service of process by a deputy, signed in his own name as under-sheriff: "This is insufficient to prove service. It is only by virtue of his official position that the return of the sheriff is conclusive, and of such the courts must take judicial notice. But the courts cannot know an under-sheriff, and the act and return of a deputy is a nullity unless done in the name and by the authority of the sheriff." Return of the summons signed by a deputy without mentioning the sheriff's name was declared void in Ditch v. Edwards, 1 Scam. 127; S. C., 26 Am. Dec. 414. Judgments by default, entered upon returns of service of summons signed by a deputy without disclosing the sheriff's name, were set aside in Arnold v. Scott, 39 Tex. 378; Rowley v. Howard, 23 Cal. 402; Joyce v. Joyce, 5 Id. 449; Village of Glencoe v. People, 78 Ill. 382. The same principle is applicable to the return of service of a writ of execution: Freeman on Executions, sec. 354; Herman on Executions, 373. In some of the states, how ever, a return in the name of the deputy is regarded as valid: Eastman v. Curtis, 4 Vt. 616; Calender v. Olcott, 1 Mich. 344; Wheeler v. Wilkins, 19 Id. 78; Allen v. Hazen, 26 Id. 142; De Villers v. Ford, 2 McCord, 144. The theory Death of principal.-The doctrines of principal and agent are not the only rules to apply in determining the status of a deputy. Should the principal die, the authority of the deputy is not thereby terminated. Although this may have been so at common law, Ward v. Storey, 18 Johns. 120, yet where statutory recognition has been given to the existence of the deputy, the manner of the performance of his duties and his authority rest with the statute. The deputy may still continue to act, not by virtue of any authority from the principal, but by virtue of the powers conferred by statute, and should discharge such duties either in his own name, Timmerman v. Phelps, 27 Ill., or in the name of his deceased principal, Ward v. Storey, 18 Johns. 120, as the statute directs. Though deputy has not taken oath, yet, having qualified in other respects, his acts will be valid as to third persons: Buckman v. Rug· gles, 8 Am. Dec. 98. In Sharp v. Thompson, 100 Ill. 447, the deputy had neither been sworn nor had given a bond, yet his acts were valid as a de facto officer. And although he cannot hold one office and act as deputy in another incompatible therewith, his acts as deputy will be binding as to third persons: Wilson v. King, 14 Id. 84. The deputy is liable as well as the princi pal for tortious acts done under color of latter's authority: Coltraine v. McCaine, 24 Am. Dec. 250; Boaz v. Tate, 43 Ind. 60. ARTICLE IV. APPOINTMENT AND DURATION OF TERMS. 875. Appointments, when not otherwise provided for. SEC. 875. Every officer, the mode of whose appointment is not prescribed by the constitution or statutes, must be appointed by the governor. Governor's power of appointment: See with constitutional provision: Const. Cal., art. ante, sec. 380, and note. Section is consistent 20, sec. 4. 876. Deputies and subordinate officers. SEC. 876. All assistants, deputies, and other subordinate officers, whose appointments are not otherwise provided for, must be appointed by the officer or body to whom they are respectively subordinate. See sec. 4112, post. An Act relating to the appointment of aliens to positions under state, county, city and county, city, or town officials. [Approved April 3, 1880; 1880, 23 (Ban. ed. 116).] Aliens not to be appointed deputies or clerks. SECTION 1. No person shall be employed as a deputy or clerk in any public office of the state, or of any county or municipality therein, who is not a citizen of the United States. SEC. 2. This act shall take effect immediately. Appointment of deputies.-The power of appointing deputies is in the principal officer, 877. Number of deputies. and not in the man: Hubert v. Mendenheim, 64 Cal. 213. SEC. 877. When the number of such deputies or subordinate officers is not fixed by law, it is limited only by the discretion of the appointing power. See sec. 4112, post. 878. Term of office, when not prescribed. SEC. 878. Every office of which the duration is not fixed by law is held at the pleasure of the appointing power. "But in no case shall such term exceed four years:" Const. Cal., art. 20, sec. 16. 879. Holding over until successor is qualified. SEC. 879. Every officer must continue to discharge the duties of his office, although his term has expired, until his successor has qualified. Cited in Myers v. Alameda Co., 60 Cal. 287, 289. Holding until successor qualifies.-The above section is manifestly designed to prevent any stoppage in the performance of public duties. It has had frequent application: Stratton T. Oulton, 28 Cal. 44; People v. Reid, 6 Id. 288; People v. Bissell, 49 Id. 407; Myers v. Supervisors, 60 Id. 287; Treadwell v. Yolo County, 62 Cal. 563, 565, 567, 570; Akers v. State, 8 Ind 484; Stewart v. State, 4 Id. 396; Beal v. State, 49 Id. 71. A public officer cannot resign to avoid discharging a duty which is sought to be enforced by mandamus: United States v. Justices, 10 Fed. Rep. 60; United States v. Badger, 93 U. S. 599; S. C., 6 Biss. 308; People v. Supervisors, 100 Ill. 332; Thompson v. United States, 103 U. S. 480. He will still be deemed the public officer until his successor has qualified: Same cases; and this, although the resignation may have been accepted: United States v. Badger, supra. The incumbent holds until his successor has qualified, and the incumbent's sureties continue liable until such qualification, even after the proper term of their principal: Scott County v. Ring, 13 N. W. Rep. (Minn.) 181. Resignation of office: See post, sec. 995, and note. ARTICLE V. NOMINATIONS AND COMMISSIONS OF OFFICERS. 889. Nominations to senate must be in writing. SEC. 889. Nominations made by the governor to the senate must be in writing, designating the residence of the nominee and the office for which he is nominated. 890. Resolution of concurrence. SEC. 890. Whenever the senate concurs in a nomination, its secretary must immediately deliver a copy of the resolution of concurrence, certified by the president and secretary, to the secretary of state, and another copy, certified by the secretary, to the governor. 891. Commissions by the governor. SEC. 891. The governor must commission: 1. All officers elected by the people whose commissions are not otherwise provided for; 2. All officers elected by the legislature; 3. All officers of the militia; 4. All officers appointed by the governor, or by the governor with the advice and consent of the senate; 5. United States senators. See sec. 380, ante, and note; sec. 382, subd. 4; and sec. 875. Signing the commission completes the appointment: People v. Whitman, 10 Cal. 38. The commission is prima facie evidence of right 892. Form of commissions. to office: Hill v. State, 1 Ala. 559; and is not revocable by the governor where he has not the power to remove from office: Ewing v. Thomp son, 43 Pa. St. 372. SEC. 892. The commissions of all officers commissioned by the governor must be issued in the name of the people of this state, and must be signed by the governor and attested by the secretary of state, under the great seal. Stats. 1863, 388. 893. Other commissions. SEO. 893. The commissions of all other officers, where no special provision is made by law, must be signed by the presiding officer of the body or by the person making the appointment. 894. Appointment of deputies, etc., how made. SEC. 894. The appointment of deputies, clerks, and subordinate officers, when not otherwise provided for, must be made in writing, filed in the office of the appointing power or the office of its clerk. Deputies: See ante, sec. 876, and note. SEC. 904. Before any officer enters on the duties of his office, he must take and subscribe the following oath: "I do swear [or affirm] that I will support the constitution of the United States and the constitution of the state of California, and that I will faithfully discharge the duties of the office of according to the best of my ability." Substantially the same form is prescribed by article 20, section 3, of the constitution of Cal ifornia. 905. Oath of governor and lieutenant-governor. SEC. 905. The governor and lieutenant-governor must take the official oath in the presence of both houses of the legislature, in convention assembled, and an entry of the fact must be made upon the journals of each house. 906. Oath of members of the legislature. any SEC. 906. Members of the legislature may take the oath of office at time during the term for which they were elected. 907. Oath, when taken. SEC. 907. Whenever a different time is not prescribed by law, the oath of office must be taken, subscribed, and filed within ten days after the officer has notice of his election or appointment, or before the expiration of fifteen days from the commencement of his term of office, when no such notice has been given. When must qualify.-Legislature may require all the state officers to qualify within a reasonable time on penalty of divestiture: Payne v. San Francisco, 3 Cal. 122; People v. Taylor, 57 Id. 620; State v. Beard, 13 Rep. 173; Gage v. Chicago, 2 Brad. App. 232. And see City v. Given, 60 Pa. St. 136; and post, secs. 946, 947. But statutes requiring an oath of office and bond are usually directory in their nature, and unless the failure to take the oath or give the bond by the time prescribed is expressly declared ipso facto to vacate the office, the oath may be taken or the bond given afterwards, if no vacancy has been declared: 1 Dillon on Mun. Corp., sec. 214; see mandatory section in California code, sec. 947, post. The failure of the newly elected officer to qualify within the ten days does not forfeit his right to the office where the predecessor has taken steps to contest the newly elected candidate's right thereto. The latter may qualify after the determination of the courts in his favor: People v. Potter, 63 Cal. 127. Where a contest is pending, section 907 has no application until the contest has been determined: Id. 908. Oath, before whom taken. SEC. 908. Except when otherwise provided, the oath may be taken before any officer authorized to administer oaths. "The oath is usually indorsed on the com- with it if the commission or certificate is itself mission or certificate of election, and recorded recorded:" Commissioners' note. 909. Oath of office, where filed. SEC. 909. Every oath of office certified by the officer before whom the same was taken must be filed within the time required by law, except when otherwise specially provided, as follows: 1. The oath of all officers, whose authority is not limited to any particular county, in the office of the secretary of state. 2. The oath of all officers, elected or appointed for any county, and of all officers whose duties are local, or whose residence in any particular county is prescribed by law, in the offices of the clerks of their respective counties. 3. Each judge of a superior court and county clerk must, so soon as he has taken and subscribed his official oath, file a copy thereof, signed with his own proper signature, in the office of the secretary of state. [Amendment, approved April 3, 1880; Amendments 1880, 20 (Ban. ed. 108); took effect immediately.] 910. Oath of deputies, etc. SEC. 910. Deputies, clerks, and subordinate officers must, within ten days after receiving notice of their appointment, take and file an oath in the manner required of their principals. ARTICLE VII. PROHIBITIONS APPLICABLE TO CERTAIN OFFICERS. 920. Certain officers not to be interested in contracts. SEO. 920. Members of the legislature, state, county, city, and township officers, must not be interested in any contract made by them in their official capacity, or by any body or board of which they are members. Stats. 1851, 522. sec. 71. And see In the Matter of John-J. Violation of this section: See Pen. Code, Marks, 49 Cal. 199. 921. Nor purchasers or vendors at certain sales. SEC. 921. State, county, township, and city officers must not be purchasers at any sale nor vendors at any purchase made by them in their official capacity. See Stats. 1851, 522; Pen. Code, sec. 71. 922. Contracts in violation, voidable. SEC. 922. Every contract made in violation of any of the provisions of the two preceding sections may be avoided at the instance of any party except the officer interested therein. 923. Certain officers prohibited from dealing in scrip, etc. SEC. 923. The state treasurer and controller, the several county, city, or town officers of this state, their deputies and clerks, are prohibited from purchasing or selling, or in any manner receiving to their own use or benefit, or to the use or benefit of any person or persons whatever, any state, county, or city warrants, scrip, orders, demands, claims, or other evidences of indebtedagainst the state, or any county or city thereof, except evidences of indebtedness issued to or held by them for services rendered as such officer, deputy, ness or clerk, and evidences of the funded indebtedness of such state, city, town, or corporation. Stats. 1852, 64; see Pen. Code, sec. 71. 924. Auditing officers, duties of. SEC. 924. Every officer whose duty it is to audit and allow the accounts of other state, county, city, or town officers, must, before allowing such accounts, require each of such officers to make and file with him an affidavit that he has not violated any of the provisions of this article. Presentation of fraudulent claim: See sec. 926, post, and Pen. Code, sec. 72. 925. Treasurer, duties of. SEC. 925. Officers charged with the disbursement of public moneys must not pay any warrant or other evidence of indebtedness against the state, county, city, or town, when the same has been purchased, sold, received, or transferred contrary to any of the provisions of this article. See secs. 65-77, Pen. Code. 926. When settlements must be withheld. SEC. 926. Every officer charged with the disbursement of public moneys, who is informed by affidavit that any officer whose account is about to be settled, audited, or paid by him, has violated any of the provisions of this article, must suspend such settlement or payment, and cause such officer to be prosecuted for such violation, by the district attorney of the county. In case there be judgment for the defendant upon such prosecution, the respective officer may proceed to settle, audit, or pay such account as if no such affidavit had been filed. [Amendment, approved March 30, 1874; Amendments 1873–4, 14; took effect July 6, 1874.] ARTICLE VIII. SALARIES OF OFFICERS WHEN TITLE IS CONTESTED. 936. Title contested, salary must not be paid. SEC. 936. When the title of the incumbent of any office in this state is contested by proceedings instituted in any court for that purpose, no warrant can thereafter be drawn or paid for any part of his salary until such proceedings have been finally determined. Contesting elections: Code Civ. Proc., secs. 1111 et seq.; of legislator: See secs. 273 et seq., ante; of governor: Secs. 288 et seq. The question of the right to the salary is postponed until it is ascertained who is entitled to the office, and the rightful claimant alone may draw the salary accruing during the period of the contest: People v. Potter, 63 Cal. 124. 937. Pendency of suit must be certified by the clerk. SEC. 937. As soon as such proceedings are instituted, the clerk of the court in which they are pending must certify the facts to the officers whose duty it would otherwise be to draw such warrant or pay such salary. Article is founded upon Stats. 1860, 108. act from "state" to "all officers:" Commis The codes have extended the provisions of that sioners' note. ARTICLE IX. BONDS OF OFFICERS. 947. Time for filing bond. SEC. 947. Every official bond must be filed in the proper office within the time prescribed for filing the oath, unless otherwise expressly provided by statute. Time of filing: See ante, sec. 907, and note. Separate offices. - In the absence of a statute Execution: See post, sec. 950, and note. Irregularities in bond: See post, sec. 963, separate offices must give two separate official to the contrary expressly, a person holding two bonds: People v. Ross, 38 Cal. 76; People v. and note. |