843-854 (174) OFFICERS-RESTRICTIONS UPON RESIDENCE OF. Fees, what judicial officers not to receive. -Const. Cal. art. VI § 15, HENNING'S GENERAL LAWS p. lxxxiv. [Pt. III. Sex not a disqualification for any occupation.-Const. Cal. art. XX §18, HENNING'S GENERAL LAWS p. cv. § 843. COUNTY OFFICER NOT TO ACT AS DEPUTY. No county officer must be appointed or act as the deputy of another officer of the same county, except in cases where the pay of the officer so appointed amounts to a sum less than seventy-five dollars per month. History: Enacted March 30, 1874, Code Amdts. 1873-4, p. 14; amended Powers of deputies.-See post § 865. ARTICLE II. RESTRICTIONS UPON THE RESIDENCE OF OFFICERS. § 852. Certain officers must reside in Sacramento. § 853. Absence from the state. § 854. Restrictions upon judicial officers. § 855. Restrictions upon county officers. § 852. CERTAIN OFFICERS MUST RESIDE IN SACRAMENTO. The following officers must reside at and keep their offices in the city of Sacramento: The governor; secretary of state; controller; treasurer of state; attorney-general; surveyor-general; state printer; superintendent of public instruction; justices of the supreme court; clerk of the supreme court; reporters of the supreme court; and adjutant-general. History: Enacted March 12, 1872. Other judicial officers.-See post § 854. Rules for determining residence.-See ante § 52. § 853. ABSENCE FROM STATE. No officer, state, county, or municipal, shall absent himself from the state for more than sixty days, unless upon business of the state, or with the consent of the legislature; provided, that in the case of illness or other urgent necessity, the governor in the case of state officers, the board of supervisors in the case of county officers, the city council or other governing body of the municipality in the case of municipal officers, shall, upon a proper showing of such illness or necessity, extend the time herein limited for the absence of any such officer from the state. History: Enacted March 12, 1872; amended March 13, 1883, Stats. and Absence from the state.-See post § 996. Absence from the state on business of the state or of the United States shall not affect the question of residence of any person. See Const. 1879 art. XX § 12, HENNING'S GENERAL LAWS p. civ. Judicial officer, consent of the legislature not to be given to absence of.-See Const 1879 art. VI § 9, HENNING'S GENERAL Judicial officers, forfeiture of office if absent from state.-See Const. 1879 art. VI § 9, HENNING'S GENERAL LAWS p. lxxxiii. Governor, effect of absence from the state. See Const. 1879 art. V §15, HENNING'S GENERAL LAWS p. lxxvii. $854. RESTRICTIONS UPON JUDICIAL OFFICERS. Restrictions upon the residence of other judicial officers are contained in the Code of Civil Procedure. History: Enacted March 12, 1872. Restrictions on residence of judicial officers. See KERR'S CYC. CODE CIV. PROC. §§ 157, 159. § 855. RESTRICTIONS UPON COUNTY OFFICERS. Restrictions upon the residence of county officers are contained in part four of this code. History: Enacted March 12, 1872. Restrictions on residence of county officers. See post §§ 4101, 4119. Restrictions on residence of district and township officers.-See post § 4102. ARTICLE III. POWERS OF DEPUTIES. § 865. Powers of deputies. § 865. POWERS OF DEPUTIES. 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. History: Enacted March 12, 1872. 1. Applied, cited, construed, referred to. 2. Authority-Source of. 3. Same Measure of. 4. Death of principal. 5. District attorney may act by. 6. Inability or absence of principal. 7. Ministerial officers may appoint. 8. Must act in name of principal. 1. APPLIED, CITED, CONSTRUED, REFERRED TO, etc., in: People vs. Otto, 77 Cal. 45, 47, 18 Pac. Rep. 869 (cited); Rauer vs. Lowe, 107 Cal. 229, 232, 40 Pac. Rep. 337 (construed); Rice vs. Trinity County, 110 Cal. 247, 251, 42 Pac. Rep. 809 (cited). 2. AUTHORITY—Source of.-Deputy of executive officer is an assistant empowered by law to act in name of officer. He is appointed by principal officer, but his authority is derived from statute which permits his appointment. His functions are those of officer in whose stead he discharges them. He is not private agent of individual who holds office.-Hubert vs. Mendheim, 64 Cal. 213, 220, 30 Pac. Rep. 633. 3. Measure of.-Deputy has full power to do any and all acts which his principal may perform by virtue of his office where not restricted by statute.-Muller vs. Boggs, 25 Cal. 175, 184. 4. DEATH OF PRINCIPAL does not ter § 875. APPOINTMENTS WHEN NOT OTHERWISE PROVIDED FOR. Every officer, the mode of whose appointment is not prescribed by the constitution or statutes, must be appointed by the governor. History: Enacted March 12, 1872. "ELECthat 2. DISTINCTION BETWEEN TION" AND "APPOINTMENT" is former carries idea of choice in which all who are to be affected participate, whereas, from latter is understood that duties of appointee are for others than those by whom he is appointed. It is generally made by one acting under delegated powers while election is direct choice of all members of body from whom choice can be made.-Wickersham vs. Brittan, 93 Cal. 34, 37, 28 Pac. Rep. 792, 29 Id. 51, 15 L. R. A. 106. 3. CAPACITY OF AN APPOINTEE to hold office cannot be conclusively determined by appointing power, which has just such powers as act authorizing it to make appointments confers upon it, and its appointees must be of classes of persons prescribed in such act.-People ex rel. Palmer vs. Woodbury, 14 Cal. 43, 46, 47. 4. VACANCY MUST EXIST.-Where no term of office is fixed and no authority given appointing power after making original appointment except to fill vacancies, in cannot appoint absence of governor vacancy or create and fill vacancy by appointing some one to succeed an incumbent.-People ex rel. Hinton vs. Hammond, 66 Cal. 654, 657, 6 Pac. Rep. 741; People ex rel. Menzies vs. Gunst, 110 Cal. 447, 452, 42 Pac. Rep. 963. Appointee to hold for unexpired term.— See post § 1003a. Distinction between "election" of officers and "appointment” of officers. See monographic note by B. A. Rich, 15 L. R. A. 106. Constitutional power of appointment to office. See note by Robert Desty, 8 L. R. A. 228. Governor to fill vacancies in offices where no other provision is made. See post § 999. Legislature may direct whether officer be elected or appointed if there be no constitutional provision on the subject.-See Const. 1879 art. XX 4, HENNING'S GENERAL LAWS p. civ; also ante § 380. Power to appoint to office, whether essentially an executive function.-See graphic note 13 Am. St. Rep. 125. mono Power to appoint to office an executive function.-See briefs 21 L. R. A. 539; 29 L. R. A. 113. Whether the power of appointment to office is purely an executive act-power of courts or judges to appoint to office.-See monographic note by B. A. Rich, 16 L. R. A. 737. Term of appointee of office to be filled by governor with consent of the senate, etc.See post § 1000. § 876. DEPUTIES AND SUBORDINATE OFFICERS. 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. History: Enacted March 12, 1872. 1. Applied, cited, construed, referred to. 2. Contract of employment not implied. 3. Ministerial officers may appoint. 4, 5. Officer, not the individual, makes appointments. 6,7. When and for what deputy may be appointed. 8, 9. Writing, when appointment must be by. 1. APPLIED, CITED, CONSTRUED, REFERRED TO. etc. in: Hubert vs. Mendheim, 64 Cal. 213, 220, 30 Pac. Rep. 633 (construed); Rosborough vs. Boardman, 67 Cal. 116, 118, 7 Pac. Rep. 261 (cited); Kenyon vs. Western Union T. Co., 100 Cal. 454, 458, 35 Pac. Rep. 75 (construed). 2. CONTRACT OF EMPLOYMENT for any length of time or otherwise than at pleasure of officer making appointment is not implied by appointment as deputy.Kenyon vs. Western Union Tel. Co., 100 Cal. 454, 458, 35 Pac. Rep. 75. 5. Power of appointing deputies is in officer and not in the man, and official existence and power to appoint of officer must be regarded as limited by commencement and end of his term. If principal officer is chosen for second term he is not, during second term, the appointing power which nominated deputies during first term, and if he shall retain deputy appointed for first term without formal reappointment he will be held to have reappointed deputy and may then remove him, as under $ 878, and second appointment of deputy like first is at pleasure of appointing power.-Hubert vs. Mendheim, 64 Cal. 213, 220, 30 Pac. Rep. 633. 6. WHEN AND FOR WHAT DEPUTY MAY BE APPOINTED.-General rule is that an officer has no authority to appoint deputy unless it is especially conferred, especially where duties of office involve trust, skill, and confidence, and if deputy § 877. WRITTEN APPOINTMENT OF DEPUTY IS ESSENTIAL where statute so requires, but an assignment of duties to deputy need not be in writing if statute is silent on subject.-Tidball vs. Halley, 48 Cal. 610, 613. 9. Writing is not essential to appointment of deputy. It may be by parol if no statute prescribe otherwise.-Bonds VS. State, 1 Mart. & Y., (Tenn.) 143, 17 Am. Dec. 795-798. Appointment of deputies.-See post § 4112. Appointment of deputies must be made by writing filed in office of appointing power.— See post § 894. Aliens not to be appointed. See HENNING'S GENERAL LAWS p. 13. Contract to employ person as deputy.— See monographic note 42 Am. Rep. 220. NUMBER OF DEPUTIES. 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. History: Enacted March 12, 1872. Applied, cited, construed, referred to, etc., in: People vs. Waite, 102 Cal. 251, 252, 36 Pac. Rep. 518 (cited); Rice vs. Trinity Co., 110 Cal. 247, 251, 42 Pac. Rep. 809 (cited). Discretion in appointment of deputies.-See post § 4112. As to general powers and duties of deputies, see ante § 865 and note. $878. TERM OF OFFICE, WHEN NOT PRESCRIBED. Every office of which the duration is not fixed by law, is held at the pleasure of the appointing power. History: Enacted March 12, 1872. 1. Applied, cited, construed, referred to. 2. Constitutional law-Statute fixing term longer than four years void. 3, 4. Office and employment, distinction between. 5. Removal of appointee. 1. APPLIED, CITED, CONSTRUED, REFERRED TO, etc., in: Hubert vs. Mendheim, 64 Cal. 213, 220, 30 Pac. Rep. 633 (construed); Kenyon vs. Western Union T. Co., 100 Cal. 454, 457, 35 Pac. Rep. 75 (construed). 2. CONSTITUTIONAL LAW.-Statute fixing term of office at five years is invalid and leaves term at pleasure of appointing power. Clause is wholly void; not merely void as to excess over four years.-People vs. Perry, 79 Cal. 105, 114, 21 Pac. Rep. 423. 3. OFFICE AND EMPLOYMENT-Distinetion. An office is created by statute authorizing appointment of physician for Pol. C.-12 county hospital, fixing term for which he shall be appointed, providing for his salary and prescribing his duties.-People ex rel. Flint vs. Harrington, 63 Cal. 257, 260. 4. Power to create an indefinite number of public officers with varying duties and compensation cannot be delegated to board of supervisors, and therefore physician employed by board of supervisors to treat indigent sick of county is not an officer but mere employee of board.-People Wheeler, 136 Cal. 652, 655, 69 Pac. Rep. 435; People vs. Shearer, 143 Cal. 66, 68, 62 Pac. Rep. 813. VS. 5. REMOVAL FROM OFFICE cannot be made by the governor of an officer appointed by him, where duration of office is fixed by law creating it, and where there is provision for removal during time limited for continuance of office. Provision of law that an office shall be held during pleasure of authority making appointment § 879. HOLDING OVER UNTIL SUCCESSOR IS QUALIFIED. Every officer must continue to discharge the duties of his office, although his term has expired, until his successor has qualified. longer term than four years not violated. 10. Same-Second term prohibited. 11, 12. Death of officer elect. 13, 14. Failure to hold election. 15. Failure of election-Tie vote. 16. Failure of officer elected to qualify. 17-21. Not a new term-Extension of old. 22. "Qualify," definition of. 23-25. Rule founded on necessity. 26. Terin not revived by subsequent disability of successor. 27, 28. Term may be precise and limited. 29. Void appointment of successor. 1. VS. APPLIED, CITED, CONSTRUED, REFERRED TO, etc., in: People ex rel. Parkinson vs. Bissell, 49 Cal. 407, 411, 412, 413 (construed); Myers vs. Alameda Co., 60 Cal. 287, 289 (apphed); Treadwell vs. Yolo Co., 62 Cal. 563, 565, 567, 570 (construed and applied); People ex rel. Culbertson vs. Potter, 63 Cal. 127, 128 (cited); People ex rel. Hinton vs. Hammond, 66 Cal. 654, 657, 6 Pac. Rep. 741 (referred to); French Santa Clara Co., 69 Cal. 519, 520, 11 Pac. Rep. 30 (applied); People vs. Tyrrell, 87 Cal. 475, 478, 479, 25 Pac. Rep. 684 (construed); People vs. Edwards, 93 Cal. 153, 831 156, 157, 28 Pac. Rep. (construed); People vs. Ward, 107 Cal. 236, 237, 40 Pac. Rep. 538 (construed); People vs. Hammond, 109 Cal. 384, 388, 42 Pac. Rep. 36 (construed); People vs. Knight, 116 Cal. 108, 110. 47 Pac. Rep. 925 (construed); Dillon vs. Bicknell, 116 Cal. 111, 114, 47 Pac. Rep. 937 (cited); People vs. Chaves, 122 Cal. 134, 139, 54 Pac. Rep. 596 (cited); People VS. Wheeler, 136 Cal. 652, 654. 69 Pac. Rep. 435 (cited); People vs. Campbell, 138 Cal. 11, 15, 70 Pac. Rep. 918 (construed). 2. APPOINTIVE OFFICE-Not held until election.-Provision of statute that an officer shall be appointed by governor and shall hold his office for term of four years and until his successor is elected and qualified, does not authorize appointee of gov ernor to hold office until his successor has been elected by the people, there being no statute that office shall be filled by election. Statute should be construed that at expiration of term of four years right of governor to appoint successor of first incumbent is same as for original appointment.-People vs. Knight, 116 Cal. 108, 109, 47 Pac. Rep. 925. 3. Applies to what officers.-This section does not in terms give authority to incumbent of an office to hold same after his term has expired, but merely imposes certain duties upon him whenever he is authorized to hold over after expiration of his term. There are many offices, especially those created by legislature, in which incumbent is authorized to hold office until election and qualification of his successor, and full effect can be given to § 879 by limiting provision to such officers, but when term of office is fixed by constitution in definite and precise language, as it is in case of judges of superior court, it is not competent for legislature to extend that term.-People vs. Campbell, 138 Cal. 11, 15, 70 Pac. Rep. 918. suc 5. Term of person appointed by governor to fill office, provided by § 1000 post, holds only until adjournment of next session of legislature, and expires upon adjournment of next session of legislature, and his successor may take his place; but if no cessor has been appointed, then incumbent shall continue to discharge duties of office as provided by this section, and no vacancy exists, as governor is authorized to fill it by appointment of successor.-People vs. Tyrrell, 87 Cal. 475, 478, 25 Pac. Rep. 684. 6. Appointee of governor to fill vacancy in an office provided to be filled by appoint |