PEOPLE BENWELL v. FOUTZ (1945)

In this petition for a writ of supersedeas the record reveals that on August 25, 1942, Leon Benwell who was regularly elected Justice of the Peace of Signal Hill Township for a term of four years, qualified for the office and entered upon the duties thereof on January 4, 1943; that on August 3, 1944, said Benwell went to Mexico City where he remained until September 5, 1944; that said visit to Mexico City was not on official business nor was the consent of the Board of Supervisors to be absent such period, or any period, theretofore obtained.

That on or about August 29, 1944, the Board of Supervisors regularly appointed Stanley A. Foutz to said office to fill the vacancy resulting from said Benwell's absence, which vacancy was then and there declared to exist.

The Attorney General of the State of California filed an action in quo warranto disputing the right of Stanley A. Foutz to hold and occupy said office. Defendant Foutz answered and in substance alleged the facts as hereinbefore set forth. A demurrer to the answer was sustained without leave to amend and from the judgment that followed, defendant Foutz appealed.

The proceedings herein seek to suspend the execution of said judgment pending the aforesaid appeal.

It is contended by Benwell among other things, that, Sec. 9 of Art. VI of the Constitution is controlling hence, unless a judicial officer is absent from the state for more than sixty days, no forfeiture results from such absence; and that a justice of the peace is a judicial officer within the meaning and application of said provision. There is serious doubt as to the merits of such contention if, indeed, it has any merit at all. Article VI of the Constitution establishes the judicial branch of the state government. Certain courts are established by its provisions, others are authorized. Sec. 1 provides that ‘The judicial power of the State shall be vested in the Senate, sitting as a court of impeachment, in a supreme court, district courts of appeal, superior courts, such municipal courts as may be established in any city or city and county, and such inferior courts as the Legislature may establish in any incorporated city or town, township, county or city and county.’ (Italics added.) A justice court exists by virtue of an act of the Legislature only. No provision is made in the constitution except to authorize its creation. And the doubt with regard to the application of Sec. 9 to Justices of the Peace is extended by virtue of Sec. 10 wherein, with regard to the removal of certain judicial officers, is the provision that, ‘All other judicial officers, except justices of the peace, may be removed by the Senate on the recommendation of the Governor.’ (Italics added.) It would appear therefore that the legislature has the power to fix the tenure of office for a justice of the peace.

Sec. 1063, of the Government Code, St.1943, p. 956, provides that ‘No county or township officer shall absent himself from the State for more than five days unless either: (a) Upon business for the State, county or township, (b) With the consent of the board of supervisors of the county. In no case shall such officer absent himself from the State for more than two months without the consent of the board of supervisors, with the written approval of the Governor, nor shall such absence continue for a period exceeding six months in any one year,’ and Sec. 1770 provides that ‘An office becomes vacant on the happening of any of the following events before the expiration of the term: * * * (f) His absence from the State without the permission required by law beyond the period allowed by law.’ See also Sec. 4014 of the Political Code.

Whether a writ of supersedeas should be granted is discretionary; Luckenback v. Krempel, 188 Cal. 175, 204 P. 591; Rosenfeld v. Miller, 216 Cal. 560, 15 P.2d 161; Day v. Gunning, 125 Cal. 527, 58 P. 172; Sec. 949, Code of Civil Procedure. In the circumstances here presented petitioner is entitled to the relief sought.

Let a writ of supersedeas as prayed for issue.

DORAN, Justice.

YORK, P. J., and WHITE, J., concur.