§§ 908-910 (184) BEFORE WHOM OATH TAKEN-WHERE FILED. been given to him.-People ex rel. Barker vs. Shaver, 127 Cal. 347, 350, 59 Pac. Rep. 784. 12. Same Presumption of knowledge.— Officer elected at general or special election is presumed to know result, when legally declared, and if no other notice has been given him, must qualify within fifteen days after his term of office begins.-People ex rel. Finigan vs. Perkins, 85 Cal. 509, 513, 26 Pac. Rep. 245. 13. Commission of office means certificate of election, or commission issued by appointing power. Judgment of trial court commis in case of election contest is not 14. Waiver of notice.-Issuing of commission is mode prescribed for orderly announcement of result of election, is part of machinery of election, and such official notice cannot be waived by officer elect.— People ex rel. Barker vs. Shaver, 127 Cal. 347, 350, 59 Pac. Rep. 784. As to proper official to give notice to officer elect, see ante §§ 891, 893; also post SS 1284, 1291, 1296. As to time for filing bond, see post § 947. § 908. OATH, BEFORE WHOM TAKEN. Except when otherwise provided, the oath may be taken before any officer authorized to administer oaths. History: Enacted March 12, 1872. QUALIFICATION MUST BE BEFORE I'ROPER OFFICER and cannot be made before mayor of city or other official not empowered to administer oaths.-Payne vs. San Francisco, 3 Cal. 122, 127. As to administration of oaths, se KERR'S CYC. CODE CIV. PROC. §§ 20932097 and notes. As to form of oath of office, see Const. 1879 art. XX §3, HENNING'S GENERAL LAWS p. civ. § 909. OATH OF OFFICE, WHERE FILED. 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. History: Enacted March 12, 1872; amended March 30, 1878, Code 1. Applied, cited, construed, referred to. 1. APPLIED, CITED, CONSTRUED, REFERRED TO, etc., in: Swamp Land R. Dist. vs. Wilcox, 75 Cal. 443, 452, 14 Pac. Rep. 843, 17 Id. 241 (cited); People ex rel. Davidson vs. Perry, 79 Cal. 105, 109, 110, 111, 21 Pac. Rep. 423 (construed and applied). 2. COMMISSIONERS OF RECLAMATION DISTRICTS.- Whether commissioners appointed to assess district are such officers as contemplated by this section was raised but not decided in Swamp Land R. Dist. vs. Wilcox, 75 Cal. 443, 452, 14 Pac. Rep. 843, 17 Id. 241. 3. MEMBER OF BOARD OF HEALTH OF SAN FRANCISCO is an officer required to reside in city and county of San Francisco, but his duties are not limited to that county. Filing his certified oath with the secretary of state is sufficient compliance with section, which is ambiguous.-People ex rel. Davidson vs. Perry, 79 Cal. 105, 21 Pac. Rep. 423. As to place for filing bonds, see post $$ 948, 949, 950, 986. As to vacancy because of failure to file oath, see post § 996 and note. $910. OATH OF DEPUTIES, ETC. Deputies, clerks, and subordinate officers must, within ten days after receiving notice of their appointment, take and file an oath in the manner required of their principals. History: Enacted March 12, 1872. Applied, cited, construed, referred to, etc., in: Rauer vs. Lowe, 107 Cal. 229, 233, 40 Pac. Rep. 337 (referred to). As to appointment of deputies, see ante $$ 876, 894; also post § 4113. As to bonds of deputies, see post § 985 and note. As to form of oath, see ante § 904. As to notice, and manner of filing oath, see ante & 907 and note. § 920. CERTAIN OFFICERS NOT TO BE INTERESTED IN CONTRACTS. 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. History: Enacted March 12, 1872, founded on § 1 Act May 1, 1851, Stats. 1. Applied, cited, construed, referred to. ors. 3. Eligibility and disqualifications of contractors. 4,5. Implied contracts. 6. Same-Exceptions. 7. Public policy. 8. Same Rights of public are superior. 1. APPLIED, CITED, CONSTRUED, REFERRED TO, etc., in: Capron vs. Hitchcock, 98 Cal. 427, 433, 33 Pac. Rep. 431 (construed with 922 post, and with Municipal Corporation Act of 1883, § 628 HENNING'S GENERAL LAWS p. 866, and with 3 of Street Law of 1885, p. 147, HENNING'S GENERAL LAWS p. 1311); Berka VS. Woodward, 125 Cal. 119, 122, 128, 73 Am. St. Rep. 31, 57 Pac. Rep. 777, 45 L. R. A. 420 (construed with other sections and applied). 2. CONTRACT BY CLERK OF BOARD OF SUPERVISORS to collect money from state for county is void as being against public policy.-Power vs. May, 114 Cal. 207, 210, 46 Pac. Rep. 6; County of Humboldt vs. Stern, 136 Cal. 63, 65, 68 Pac. Rep. 324. As to such contracts being void or voidable, see brief 52 L. R. A. 518. 3. ELIGIBILITY AND DISQUALIFICATIONS OF CONTRACTORS, as defined in 1920 and 922 of this code and by Municipal Corporation Act of 1883, § 628, if affected at all by 3 of Street Law of 1885, it is only on incidental contingency, which creates an exception.-Capron vs. Hitchcock, 98 Cal. 427, 433, 33 Pac. Rep. 431. 4. IMPLIED CONTRACTS are included within provisions of this section.-Berka vs. Woodward, 125 Cal. 119, 128, 73 Am. St. Rep. 31, 57 Pac. Rep. 777, 45 L. R. A. 420; Sims vs. Petaluma G. L. Co., 131 Cal. 656, 660, 63 Pac. Rep. 1011. 5. Compare: Capital Gas. Co. vs. Young, 109 Cal. 140, 144, 41 Pac. Rep. 869, 29 L. R. A. 463. 6. Exceptions.-Gas company required by law to furnish municipality with gas, upon demand, may recover from city reasonable value thereof, notwithstanding that president of gas company is also mayor of municipality.-Capital Gas Co. vs. Young. 109 Cal. 140, 144, 41 Pac. Rẹp. 869, 29 L. R. A. 463. 7. PUBLIC POLICY.-Public officer cannot be permitted to place himself in situation where his personal interest will conflict with faithful performance of his duty. It matters not how fair contract may be, law will not suffer him to occupy a position so equivocal and so fraught with temptation.-Power vs. May, 114 Cal. 207, 210, 46 Pac. Rep. 6; Berka vs. Woodward, 125 Cal. 119, 128, 73 Am. St. Rep. 31, 57 Pac. Rep. 777, 45 L. R. A. 420; Capital Gas Co. vs. Young, 109 Cal. 140, 143, 41 Pac. Rep. 869, 29 L. R. A. 463. 8. Rights of public are superior to considerations of private justice, and parties to illegal contract will be left in situatior in which law finds them.-Berka vs. Woodward, 125 Cal. 119, 127, 73 Am. St. Rep. 31, 57 Pac. Rep. 777, 45 L. R. A. 420. As to public policy, see KERR'S CYC. CIV. CODE § 1607 note par. 5, and § 1608 note pars. 35-36. As to penalty for violation, see KERR'S CYC. PEN. CODE § 71 and note. As to other offenses by officers: intoxication, see HENNING'S GENERAL LAWS p. 1013; violation of purity of elections law. HENNING'S GENERAL LAWS p. 421. As to pledging candidates, see KERR'S CYC. PEN. CODE § 55. As to removal for corruption in office, KERR'S CYC. PEN. CODE 758 et see seq. § 921. NO PURCHASERS OR VENDORS AT CERTAIN SALES. 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. History: Enacted March 12, 1872, founded upon Act May 1, 1851, Stats. 1851, p. 522. §§ 922-926 (186) CONTRACTS VOIDABLE, WHEN—AUDITING OFFICERS. Applied, cited, construed, referred to, etc., in; Berka vs. Woodward, 125 Cal. 119, 122, 73 Am. St. Rep. 31, 57 Pac. Rep. 777, 45 L. R. A. 420 (construed with other sec [Pt. III. tions and held to apply to both express and implied contracts). As to penalty for violation, see KERR'S CYC. PEN. CODE § 71. § 922. CONTRACTS IN VIOLATION, VOIDABLE. 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. History: Enacted March 12, 1872. 1. Applied, cited, construed, referred to. 2. Contracts not expressly prohibited. 1. APPLIED, CITED, CONSTRUED, REFERRED TO, etc., in: Capron vs. Hitchcock, 98 Cal. 427, 433, 33 Pac. Rep. 431 (construed and applied); Berka vs. Woodward, 125 Cal. 119, 122, 73 Am. St. Rep. 31, 57 Pac. Rep. 777, 45 L. R. A. 420 (construed with other sections and applied). 2. CONTRACTS NOT EXPRESSLY PROHIBITED nor pronounced void by statute will, if founded on act for which statute pronounces a penalty, be void.-Berka vs. Woodward, 125 Cal. 119, 127, 73 Am. St. Rep. 31, 57 Pac. Rep. 777, 45 L. R. A. 420. As to penalty, see KERR'S CYC. PEN. CODE 71 and note. As to implied contracts, see ante § 920 and note pars. 4, 5. As to lawful consideration of contracts, see KERR'S CYC. CIV. CODE §§ 1607, 1608 and notes. As to what is not lawful, see KERR'S CYC. CIV. CODE § 1667 and note. § 923. CERTAIN OFFICERS PROHIBITED FROM DEALING IN SCRIP, ETC. 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 indebtedness against 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, or clerk, and evidences of the funded indebtedness of such state, city, town, or corporation. History: Enacted March 12, 1872, founded upon § 1 Act May 4, 1852, As to penalty, see KERR'S CYC. PEN. CODE § 71 and note. § 924. AUDITING OFFICERS, DUTIES OF. 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. History: Enacted March 12, 1872. As to penalty for presenting fraudulent claim, see KERR'S CYC. PEN. CODE § 72 and note. § 925. TREASURER, DUTIES OF. 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. History: Enacted March 12, 1872. § 926. WHEN SETTLEMENTS MUST BE WITHHELD. 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. History: Enacted March 12, 1872; amended March 30, 1874, Code ARTICLE VIII. SALARIES OF OFFICERS WHEN TITLE IS CONTESTED. [This article is founded upon Act March 20, 1860 (Stats. 1860, p. 108); the code has extended the provisions of the act from "state officers" to "all officers."] § 936. Election contest. [Salary, payment § 937. Clerk of court must certify. [Pendency of.] of suit.] § 936. ELECTION CONTEST. [SALARY, PAYMENT OF.] 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; provided, however, that this section shall not be construed to apply to any party to a contest or proceeding now pending or hereafter instituted who holds the certificate of election or commission of office and discharges the duties of the office; but such party shall receive the salary of such office, the same as if no such contest or proceeding was pending. History: Enacted March 12, 1872; amended March 10, 1891, Stats. and Amdts. 1891, pp. 28, 29. fice. 14. Same State librarian and other functionaries. 15. Procedure on contest. 16. Reversal of erroneous suspension. 1. APPLIED, CITED, CONSTRUED, REFERRED TO, etc., in: People ex rel. Culbertson VS. Potter, 63 Cal. 127, 128 (erroneously cited and applied as § 963); Bledsoe vs. Colgan, 138 Cal. 34, 35, 37, 38, 70 Pac. Rep. 924 (construed and applied); Wilson vs. Fisher. 110 Cal. 188, 189, 73 Pac. Rep. 850 (construed and applied); Anderson vs. Browning, 140 Cal. 222, 223, 73 Pac. Rep. 986 (applied); Wilson vs. Fisher (Cal. Sept. 29, 1905), 82 Pac. Rep. 421 (construed with §§ 1111, 1127 Code Civ. Proc. and applied). 2. CONSTITUTIONALITY OF SECTION UPHELD.-Wilson vs. Fisher, 140 Cal. 188, 189, 73 Pac. Rep. 850; Anderson vs. Browning, 140 Cal. 222, 223, 73 Pac. Rep. 986. 3. INCUMBENT OF OFFICE.-Rules for determining discussed in dissenting opinion by Beatty, C. J.-Bledsoe vs. Colgan, 138 Cal. 34, 38, 70 Pac. Rep. 924. See Day vs. Gunning, 125 Cal. 527, 528, 58 Pac. Rep. 172; Adams vs. Doyle, 139 Cal. 678, 681, 73 Pac. Rep. 582. rooms 4. Mere physical possession of the and appurtenances ordinarily used in conduct of office does not constitute possession of office.-Scott VS. Sheehan, 145 Cal. 691, 693, 79 Pac. Rep. 350. 5. Officer acting under better apparent legal right, where both claim to be acting as incumbent, will be recognized until conflict is determined.-Morton vs. Broderick, 118 Cal. 474, 486, 50 Pac. Rep. 644. 6. LOST CERTIFICATE-Contents may be proved by parol evidence.-People ex rel. Attorney-General vs. Clingan, 5 Cal. 389, 390. 7. OFFICER DE JURE ONLY PERSON ENTITLED TO SALARY after contest is decided. People ex rel. Culbertson vs. Pot ter, 63 Cal. 127, 128. 8. After judgment against, and pending appeal by, officer holding certificate is en 937 (188) SALARY ON CONTEST-CERTIFYING SUIT. titled to salary.-Anderson vs. Browning, 140 Cal. 222, 223, 73 Pac. Rep. 986. See Day vs. Gunning, 125 Cal. 527, 528, 58 Pac. Rep. 172; Adams vs. Doyle, 139 Cal. 678, 680, 73 Pac. Rep. 582. 9. Same. Provided appeal be taken within ten days after judgment declaring certificate invalid. But this exception applies only to offices contemplated by §§ 11111127 Code Civ. Proc.-Wilson VS. Fisher (Cal. Sept. 29, 1905), 82 Pac. Rep. 421. 10. Appointee to vacancy caused by failure of officer receiving certificate to qualify is entitled to salary as against former incumbent.-Adams vs. Doyle, 139 Cal. 678, 681, 73 Pac. Rep. 582. 11. Same.-Pendency of contest proceedings in behalf of candidate who did not receive certificate of election against holder of certificate cannot affect title of such appointee during his lawful incumbency of otnce, notwithstanding he was party against whom contest was made and who had failed to qualify except under appointment.-Adams vs. Doyle, 139 Cal. 678, 680. 73 Pac. Rep. 582. 12. Must be party to action in which it is determined that another is entitled to office and salary or he will not be bound thereby.-People ex rel. Dorsey vs. Smith, 28 Cal. 21, 26. 13. Salary is incident to title to office and not to possession and performance of duties. People ex rel. Dorsey vs. Smith, 28 Cal. 21, 25; People ex rel. Stratton vs. Oulton, 28 Cal. 44, 51; Carroll vs. Siebenthaler, 37 Cal. 193, 195; People ex rel. Cul [Pt. IIL bertson vs. Potter, 63 Cal. 127, 128; Burke vs. Edgar, 67 Cal. 182, 184, 7 Pac Rep. 488; Ward vs. Marshall, 96 Cal. 155, 159, 31 Am. St. Rep. 198, 30 Pac. Rer 1113; Mar. quis vs. City of Santa Ana, 103 Cal. 661, 667, 37 Pac. Rep. 650. 14. State librarian and other civil functionaries having custody and management of state property are governed by same rule.-People ex rel. Stratton vs. Oulton, 28 Cal. 44, 51. As to right of officer de facto to salary, see ante § 220 and note; also note by Robert Desty, 13 L. R. A. 178; brief in 37 L. R. A. 810. 15. PROCEDURE ON CONTEST is regulated by §§ 1111-1127 of Code of Civil Procedure, not by § 803 et seq. of same code. Latter sections provide for action in nature of quo warranto for usurpation of office.Day vs. Gunning, 125 Cal. 527, 529, 58 Pac. Rep. 172. As to contesting elections for members of legislature, see ante §§ 273-283. As to contesting election for governor or Heutenant-governor, see ante §§ 288-295. As to contest of election for violating purity of elections law, see HENNING'S GENERAL LAWS p. 428, § 12 et seq. 16. REVERSAL OF ERRONEOUS SUSPENSION entitles officer to salary for time during which he was deprived of office, notwithstanding that during suspension duties were performed by person properly appointed for that purpose.-Ward vs. Marshall, 96 Cal. 155, 159, 31 Am. St. Rep. 198, 30 Pac. Rep. 1113. § 937. CLERK OF COURT MUST CERTIFY. [PENDENCY OF SUIT.] 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, except in the cases included in the proviso to the foregoing section. History: Enacted March 12, 1872; amended March 10, 1891, Stats. and |