ARTICLE XI. PROCEEDINGS TO COMPEL THE DELIVERY OF BOOKS AND PAPERS BY OFFICERS TO THEIR SUCCESSORS. 1014. Possession of books and papers. SEC. 1014. Every public officer is entitled to the possession of all books and papers pertaining to his office, or in the custody of a former incumbent by virtue of his office. Notary's books: Sec. 796. 1015. Proceedings to compel delivery of books and papers. SEO. 1015. If any person, whether a former incumbent or another person, refuse or neglect to deliver to the actual incumbent any such books or papers, such actual incumbent may apply, by petition, to any court of record sitting in the county where the person so refusing or neglecting resides, or to any judge of the superior court residing therein, and the court or officer applied to must proceed in a summary way, after notice to the adverse party, to hear the allegations and proof of the parties, and to order any such books or papers to be delivered to the petitioners. [Amendment, approved April 3, 1880; Amendments 1880, 20 (Ban. ed. 109); took effect immediately.] Amended to conform to the new constitution by using "superior" instead of "district or county.' Under proceedings to compel the delivery of books it is not competent for the defendant, when defeated, to seek by certiorari 1016. Attachment and warrant to enforce. to attack the plaintiff's title to the office; that must be done alone by quo warranto: Hull v. Superior Court, 63 Cal. 174. Refusing to deliver books: Pen. Code, secs. 76, 77. SEC. 1016. The execution of the order and the delivery of the books and papers may be enforced by attachment as for a witness, and also, at the request of the petitioner, by a warrant directed to the sheriff or a constable of the county, commanding him to search for such books and papers, and to take and deliver them to the petitioner. ARTICLE XII. MISCELLANEOUS PROVISIONS. 1026. Seals of executive officers. SEC. 1026. Except where otherwise specially provided by law, the seals of office of the various executive officers are those in use by such officers at the time this code takes effect, and each of such officers must at once file a description and impression of such seal in the office of the secretary of state. "The filing here required must be done on or before January 1, 1873, to identify the seals; and secretary of state should carefully preserve 1027. Great seal. such impressions and descriptions:" Commissioners' note. SEC. 1027. The great seal of the state is the one in use at the time of the adoption of this code. See Const. Cal., art. 5, sec. 13. Custody of great seal: Sec. 407, ante. 1028. Executive and judicial officers may administer oaths. SEC. 1028. Every executive and judicial officer may administer and certify oaths. Administration of oaths: Sections 179, 259, 2012, 2093, Code of Civil Procedure, and sections 4118, 4103, of the Political Code, provide what officers may administer oaths. A United States court commissioner cannot administer an oath in proceedings in the courts of this state; e. g., a claim against a decedent's estate is not properly sworn to if the oath was taken before a United States court commissioner: Winder v. Hendricks, 56 Cal. 464. 1029. Salaries of officers. SEO. 1029. Unless otherwise provided by law, the salaries of officers must be paid out of the general fund in the state treasury, monthly, on the last day of each month. Cited by way of illustrating the general design to pay the salary of public officers monthly, in Jenks v. Oakland, 58 Cal. 576. 1030. Office hours. SEC. 1030. Unless otherwise provided by law, every officer must keep his office open for the transaction of business from ten o'clock A. M. until four o'clock P. M., each day, except upon holidays. Holidays: See sec. 10, ante. 1031. Signature of officers acting ex officio. SEC. 1031. When an officer discharges ex officio the duties of another office than that to which he is elected or appointed, his official signature and attestations must be in the name of the office the duties of which he discharges. Stats. 1861, 139. 1032. Records open to public inspection, except in divorce. SEC. 1032. The public records and other matters in the office of any officer are at all times, during office hours, open to the inspection of any citizen of this state. In all actions for divorce, the pleadings, and the testimony taken and filed in said actions, shall not be by the clerk with whom the same is filed, or the referee before whom the testimony is taken, made public, nor shall the same be allowed to be inspected by any person except the parties that may be interested, or the attorneys to the action, or by an order of the court in which the action is pending; a copy of said order must be filed with the clerk. In cases of attachment, the clerk of the court with whom the complaint is filed shall not make public the fact of the filing of such complaint, or of the issuing of such attachment, until after the filing of return of service of attachment. [Amendment, approved March 30, 1874; Amendments 1873-4, 14; took effect July 6, 1874.] The original section consisted of the first sentence only. Inspection of public writings: Code Civ. Proc., sec. 1892. 215 Violation of section: Pen. Code, sec. 176; said by the commissioners to be "applicable to officers generally." XII. ELECTIONS FOR ELECTORS OF PRESIDENT AND VICE-PRESIDENT... 1307 1332 XIV. PRIMARY ELECTIONS. 1357 CHAPTER I. GENERAL PROVISIONS RELATING TO ELECTIONS. ARTICLE I. TIME OF HOLDING ELECTIONS. 1041 1053 1066 1041. General election, when held. SEO. 1041. There must be held throughout the state, on the first Tuesday after the first Monday of November, in the year eighteen hundred and eighty, and in every second year thereafter, an election, to be known as the general election. [Amendment, approved April 16, 1880; Amendments 1880, 77 (Ban. ed. 366); took effect from passage.] For construction of this section under the constitution of California of 1879, and with reference to the various county governments, see Wood v. Election Commissioners, 55 Cal. 561; Treadwell v. Supervisors, 8 Pac. C. L. J. 74; 1042. Judicial elections. Section 1042, relating to the judicial election, was repealed by act of April 16, 1880; Amendments 1880, 77 (Ban. ed. 366); took effect from passage. The repealed section was as follows: 1043. Special elections, when to be held. Barton v. Kalloch, 56 Id. 95. And see Staude v. The act by which the amendment of April 16, 1880, was adopted was declared constitutional in People v. Ransom, 58 Cal. 558, 560. "SEC. 1042. There must be held throughout the state, on the third Wednesday in October, in the year 1873, and in every second year there. after, an election to be known as the judicial election." SEC. 1043. Special elections are such as are held to supply vacancies in any office, and are held at such times as may be designated by the proper board or officer. Vacancies: See ante, sec. 996 and notes. As an example of a special election under this section, see People v. Hoge, 55 Cal. 612. Special elections: See People v. Hoge, supra, and note to sec. 1053. Designating time of election: See sec. 1053, post, and note. The board of election com missioners of San Francisco have power to call an election for a board of freeholders to frame a charter for that city: People v. Hoge, supra. In addition to a statement of the time and place, it is also essential that the notice should specify the office or offices to be filled at the proposed election: Secord v. Foutch, 44 Mich. 89. ARTICLE II. ELECTION PROCLAMATIONS. 1053. Election proclamation by governor. SEC. 1053. At least thirty days before a general election, and whenever he orders a special election to fill a vacancy in the office of state senator or member of assembly, at least ten days before such special election, the governor must issue an election proclamation under his hand and the great seal of the state, and transmit copies thereof to the boards of supervisors of the counties in which such elections are to be held. [Amendment, approved April 16, 1880; Amendments 1880, 77 (Ban. ed. 366); took effect from passage.] Election proclamation-Time of election. The next section prescribes the contents of the proclamation, the first item being a statement of the time of election. It is a principle designed to bring to those most interested, the people, a notice of an approaching election, that the time of holding an election, whether general or special, must be authoritatively designated in advance, either by law or by some means which the law has prescribed; otherwise the election is held without authority, and is ineffectual for any purpose: People v. Porter, 6 Cal. 26; McCune v. Weller, 11 Id. 49; People v. Martin, 12 Id. 409; Westbrook v. Rosenberg, 14 Id. 180; Kenfield v. Irwin, 52 Id. 164; People v. Mathewson, 47 Id. 442; Sawyer v. Hayden, 1 Nev. 78. Time and place are of the substance of every election: Dickey v. Hurlburt, 5 Cal. 343; Knowles v. Yates, 31 Id. 83, and cases cited arguendo; and see sec. 1131, post. With respect to the two broad classes of elections, general and special, the necessity of a proclamation designating the time of holding the election varies. In the one case, that is, of a general election, statutory provision is usually made as to the time thereof. The voters are presumed to know the law and the time when a term of office expires, and the date of election to fill the same. In this class of elections, therefore, the governor's proclamation is not essential to their validity: Kenfield v. Irwin, 52 Cal. 164; Tillson v. Ford, 53 Id. 701; Dickey v. Hurlburt, 5 Id. 343; Cooley on Const. Lim., sec. 603, citing People v. Cowles, 13 N. Y. 350; People v. Brenham, 3 Cal. 477; State v. Jones, 19 Ind. 356; People v. Hartwell, 12 Mich. 1054. Governor's proclamation, what to 508; Dishon v. Smith, 10 Iowa, 212; State v. Orvis, 20 Wis. 235; State v. Goetze, 22 Id. 363. In Lafayette v. Jenks, 09 Ind. 218, the same cases are relied upon, and the court in its reasoning proceeds upon the same principle which determines the distinction above adverted to. But with respect to special elections-elections held to supply vacancies in office arising from some other cause than the expiration of the term-it is essential that a designation of the time of holding them should be given by the governor, or other proper board or person: The cases first above cited; Jones v. State, 1 Kan. 273; Barry v. Lauck, 5 Coldw. 588. In this class of elections the proclamation contains the necessary designation; in the other class the law itself designates. In the absence of an authoritative notice to the electors of an approaching special election, such election is void: The decisions first above referred to. It is not essential, however, that such notice should specify the coming election to be a special one. Every purpose of the notification, the designation, is subserved when the electors are informed that the vacancy has occurred, and that they are called to fill it: Tillson v. Ford, 53 Cal. 701. It is worthy of note that this section, 1053, as amended in 1880, limits the special elections for which the governor's proclamation is requisite, and that all of the above decisions were rendered prior to this amendment. But section 1043 is general in its terms, and must be read in connection with section 1053. Opening and closing polls: See sec. 1160, post, and note. contain. SEC. 1054. Such proclamation must contain: 1. A statement of the time of election, and of the offices to be filled; 2. An offer of rewards in the following form: "And I do hereby offer a reward of one hundred dollars for the arrest and conviction of any and every person violating any of the provisions of Title IV., Part I., of the Penal Code; such rewards to be paid until the total amount hereafter expended for the purpose reaches the sum of ten thousand dollars." Governor's proclamation.—The following from the commissioners' notes explains fully the object expected to be attained by this act: "The object of requiring the governor to insert in the election proclamation an offer of rewards is the enforcement of the penalties prescribed in the code. [Reference is here made to section 60, Penal Code.] We of California know full well the evils that flow from betting on elections. In addition to the public calam ity that results therefrom, the injury to private persons, who often in the heat of a political campaign are pressed into staking their all on the result, is incalculable. Now, the mere fact that there is a statute making betting on elections a misdemeanor will not stop the practice; but give to every policeman, officer, or other person a direct interest of one hundred dollars in the enforcement of the law in each case, and betting, and offers to be bet, will not be fre proclamation, so that their provisions may be brought to the knowledge of all." quent. A subsequent section of this title re- SEO. 1055. The board of supervisors, upon the receipt of such proclamation, may, in case of general or special elections, cause a copy of the same to be published in some newspaper printed in the county, if any, and to be posted at each place of election at least ten days before the election, and in case of special elections to fill a vacancy in the office of state senator or member of assembly, the board of supervisors, upon receipt of such proclamation, may, in their discretion, cause a copy of the same to be published or posted as hereinbefore provided, except that such publication or posting need not be made for a longer period than five days before such election. [Amendment, approved· April 16, 1880; Amendments 1880, 77 (Ban. ed. 367); took effect from passage.] 1056. Election proclamations by supervisors. SEC. 1056. Whenever a special election is ordered by the board of supervisors, they must issue an election proclamation, containing the statement provided for in subdivision one of section ten hundred and fifty-four, and must publish and post it in the same manner as proclamations issued by the governor. Special elections: Secs. 1043, 1053. The power in the above section conferred upon supervisors was, by the thirty-third and thirty 1066. Plurality to elect. fourth sections of the act of April 18, 1878, transferred to the board of election commissioners of San Francisco: People v. Hoge, 55 Cal. 612. ARTICLE III. MISCELLANEOUS PROVISIONS. SEC. 1066. The person receiving at any election the highest number of votes for any office to be filled at such election is elected thereto. Const. Cal. 1879, art. 20, sec. 13. 1067. Proceedings on tie vote other than for governor or lieutenant-governor. SEC. 1067. If at any election, except that for governor or lieutenant-governor, two or more persons receive an equal and the highest number of votes, there is no choice, and a special election to fill such office must be ordered by the proper board or officer. Stats. 1850, 101. Special elections: Sec. 1043. 1068. Same, on tie vote for governor or lieutenant-governor. SEC. 1068. In case any two or more persons have an equal and highest number of votes for either governor or lieutenant-governor, the legislature must, by joint vote of both houses, choose one of the persons to fill such office. Const. Cal. 1879, art. 5, sec. 4. 1069. Electors privileged from arrest, when. SEC. 1069. Electors are privileged from arrest, except for an indictable offense, during their attendance on the election, and in going to and returning from the same. Const. Cal. 1879, art. 2, sec. 2. 1070. Electors exempt from militia duty, when. SEC. 1070. No elector is obliged to perform militia duty on the day of election, except in time of war or public danger. Const. Cal. 1879, art. 2, sec. 3. |