People Ex rel. Attorney-General v. Wells — 2 Cal. 610

Majority

p. 610

The PEOPLE, ex rel. the ATTORNEY-GENERAL, v. ALEXANDER WELLS.

Headnote

The absence of a judge from the State, is not such a vacancy as can be supplied by the executive, under legislative authority.

An- Act of the Legislature, authorising the Governor to appoint a Judge of the Supreme Court, during the absence of one of the Judges from the State, is unconstitutional.

[The following opinion did not reach the publisher till too late for its insertion at the proper place. The case will be found reported, page 198, of this volume, in which the judges then composing the Court, disagreed. The opinion of Judge Heydeneeldt, now reported, concurring with that of Chief Justice Murray, establishes the law as delivered by the latter, on the original hearing.]

When this case was first argued, opinions were delivered by the Chief Justice and Mr. Justice Anderson, and their opinions being in conflict with one another, it was necessary, in order that the case should be decided, that there should be a re-argument or submission.

The counsel for the respondent insists, that, as the term of office in dispute has already ended, there is no necessity for a decision, and it is unusual in such cases, to make one. His position is entirely true, but at the same time, it is always a matter of discretion with the Court, whether it will be influenced by those reasons. In this case we consider the question involved, as one of vast importance, and governed by that consideration, we have determined to decide.

The Chief Justice has advised me, that his opinion already on file, will be adhered to; that he will make no alteration, and considers it unnecessary to prepare any other. I have examined that opinion carefully, and concur fully in its reasoning and conclusions. The whole subject has been fully examined by him, and he has so well demonstrated the unconstitutionality of the law, under which the appointment of the respondent was made,

p. 611

that it would he supererogation to enter into any future discussion.

The judgment of the Court below is reversed; and as we are judicially notified that the term of the respondent has expired, it is therefore ordered that the proceedings in the District Court be dismissed.