PEOPLE v. GRAIG (1936)

During his term of office as Associate Justice of the District Court of Appeal of the Second Appellate District, defendant was indicted in the District Court of the United States for the Southern District of California and charged with the crime of felony, to wit, a violation of section 88 of title 18 of the United States Code (18 U.S.C.A. § 88) in that he, with certain other defendants therein named, did conspire to obstruct and impede the due administration of justice. The jury returned a verdict of guilty, and judgment was entered assessing a fine of $1,000 and ordering that the defendant be confined in jail for the period of one year. Pending appeal to the Supreme Court of the United States, the defendant continued in possession of and occupied the chambers of the District Court of Appeal, used the furnishings of the same, the library facilities, records, files, and papers, and threatened to continue to do so. Thereupon this action in quo warranto was commenced by the Attorney General in the name of the people, based on section 996, subd. 8, of the Political Code, praying for a judgment declaring and decreeing that the defendant's office had become vacant, and he, unlawfully and without right, held and exercised a public civil office as Associate Justice of the District Court of Appeal of the Second Appellate District, Division 2, and praying that he be ousted and excluded therefrom.

Defendant answered the complaint, denying and putting in issue the allegations of the complaint. He alleged that he has never been impeached nor removed by legislative action from office as such Associate Justice, nor otherwise in the manner provided by law, nor at all. Judgment was entered for the people. The answer, and the same contentions here raised on appeal, present the question to be decided.

The action was brought by the respondent people in reliance on section 803 of the Code of Civil Procedure, which authorizes the bringing of such an action against one ‘who usurps, intrudes into, or unlawfully holds or exercises any public office, civil or military.’ The support for the action rests upon the contention that the conviction of the appellant under federal law is within the contemplation of section 996, subd. 8, of the Political Code, providing that ‘an office becomes vacant’ when the holder suffers ‘conviction of a felony, or of any offense involving a violation of his official duties.’ The people argue that the office held by appellant became ‘vacant,’ and appellant was removed therefrom. We are of opinion that the judgment must be reversed.

There appear to be two complete answers to the argument advanced by the respondent: First, we are of the view that there is merit in the contention of appellant that his conviction under the federal law does not fall within the application of section 996, subd. 8, of the Political Code; and, second, the appellant not having been removed from the office to which he was elected, in the manner prescribed by the provisions of the state Constitution, he is still entitled to hold office.

Because we are convinced that the second point of appellant's attack on the judgment is legally unanswerable, we deem it necessary to consider that point alone. Appellant has not resigned nor been removed from his constitutional office in any one of the three ways prescribed in the Constitution of the state. Those ways are: (1) By recall by the people (Const. art. 23, § 1); (2) by concurrent resolution of both houses of the Legislature adopted by a two-thirds vote of each house (Const. art. 6, § 10); (3), by impeachment by the Legislature (Const. art. 4, § 18). After naming the office holders who ‘shall be liable to impeachment,’ including judges of the District Court of Appeal, the last-cited section provides: ‘All other civil officers [italics added] shall be tried for misdemeanor in office in such manner as the Legislature may provide.’ By application of the rule of construction laid down by the maxim, inclusio unius est exclusio alterius [inclusion of one is exclusion of the other], we arrive at the conclusion that by including certain judicial officers in the list of those who may be removed by joint resolution of both houses of the Legislature, or impeached, or recalled in the manner prescribed in the Constitution, the people intended to and have designated the only means by which such officers may be ousted for misdemeanor in office.

While the exact question we are now discussing has not before received the consideration of this court, we have had occasion in the past to examine similar situations. We quote from State Bar of California v. Superior Court, 207 Cal. 323, 278 P. 432. In that case the State Bar sought to subject a judge of the superior court, a constitutional officer, to disciplinary proceedings, the ultimate effect of which would have been to remove him from his position. To allow such action to proceed, this court said (207 Cal. 323, at page 337, 278 P. 432, 438), ‘would be to permit the accomplishment by indirection of his disqualification to hold, and hence necessarily his removal from his office, for which the Constitution in sections 17 and 18 of article 4 thereof has provided a direct, if not an exclusive mode of procedure. An apt and well-reasoned line of authority upon this precise question is that supplied by the case of Falloon v. Clark, 61 Kan. 121, 58 P. 990, wherein the Supreme Court of Kansas determined that ‘wherever the constitution has created an office and fixed its term, and has also declared upon what grounds and in what mode an incumbent of such office may be removed before the expiration of his term, it is beyond the power of the legislature to remove such officer or suspend him from office for any other reason or in any other mode than the constitution itself has furnished.’ The said court rests its authority for this conclusion upon Lowe v. Commonwealth, 3 Metc.(Ky.) 237, and Throop, Pub.Off., § 341, which latter authority states the foregoing doctrine to be well settled, and cites in support thereof the cases of State v. Wiltz, 11 La.Ann. 439; State v. McNeely, 24 La.Ann. 19; Brown v. Grover, 6 Buch (Ky.) 1; Page v. Hardin, 8 B.Mon.(Ky.) 648; and Mechem, Pub.Off., § 457.'

In the more recent case of Byers v. Smith, 4 Cal.(2d) 209, at page 213, 47 P.(2d) 705, 706, this court said: ‘The fact, however, remains as is said in Commonwealth of Pennsylvania v. Reid, 265 Pa. 328, 108 A. 829, 831: ‘(T)he people are entitled to the services of the officer during the entire term for which they elected him (Lloyd v. Smith, 176 Pa. 213, 35 A. 199), unless he be removed in the way provided by the Constitution, if the officer is a constitutional officer (Bowman's Case, 225 Pa. 364, 74 A. 203), or by the Legislature or under its authority in the manner provided by Constitution or statute, if the officer is not a constitutional officer (Commonwealth v. Weir, 165 Pa. 284, 288, 30 A. 835).’'

Because these authorities rest on such well-established principles they are determinative of the question presented on this appeal. Further consideration of the matter is unnecessary.

The judgment ousting appellant from office is reversed.

WASTE, Chief Justice.

We concur: SHENK, J.; SEAWELL, J.; THOMPSON, J.; LANGDON, J.; CURTIS, J.