People v. Craig — 9 Cal. 2d 615

Majority

p. 615

[L. A. No. 15725.

In Bank.

September 29, 1937.]

THE PEOPLE, Respondent, v. GAVIN W. CRAIG, Appellant.

Daniel M. Hunsaker, Don M. Kitzmiller, Albert A. Kidder, Jr., and Mark L. Herron for Appellant.

U. S. Webb, Attorney-General, and L. G. Campbell and Eugene M. Elson, Deputies Attorney-General, for Respondent.

Garret M. McEnerney, M. C. Sloss, Warren Olney, Jr., and Philbrick McCoy, as Amici Curiae on Behalf of Respondent.

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, 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 one thousand dollars and ordering that the

p. 616

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 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, subdivision 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 Two, 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 had 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 that the office of associate justice of the District Court of Appeal, Second Appellate District, Division Two, became vacant by reason of the conviction of the defendant Gavin W. Craig of a felony; that Gavin W. Craig had not, since the date of the conviction, had any lawful right to said public civil office; and that he unlawfully held and exercised the office and continued to hold the same without right. It was further ordered, adjudged and decreed that he be removed from said office and excluded therefrom and from exercising or performing in any manner whatsoever or at all any of the duties or functions of the said office. ■ Defendant appealed to this court, and the appeal has not yet been disposed of.

When the matter last came on for hearing before the court in bank, it was stated in open court by counsel for appellant, and was the fact, that the resignation of appellant had been forwarded to, and was actually in the hands of, the governor of the state. The court thereupon, of its own motion, raised the question whether or not, by reason of such resignation, the office had become vacant and the sole question presented by the action, to-wit, that Gavin W. Craig unlawfully and without right exercised and held a public civil office, had become moot. On consideration of points and

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authorities filed by the parties on this question, the cause having been submitted, the court is of the view that the question has been settled and disposed of by the resignation of the alleged unlawful occupant; that the matter has become moot, and that further proceedings may not be had.

The appeal is therefore dismissed.

Shenk, J., Curtis, J., Langdon, J., Edmonds, J., Nourse, J., pro tem., and Seawell, J., concurred.