Hull v. Superior Court , 1883 Cal. LEXIS 395 ( 1883 )

McKinstry, J.,

filed a concurring opinion as follows: — I concur. Section 4006 of the Political Code reads: “Whenever a new census is taken, the counties on the first day of July thereafter are, by operation of laAv, classified under such census.” If it should be admitted that section 4006 refers to a United States census, that we take judicial notice of the completion of the census of 1880, and of the fact that, by the return of such census Shasta, has a pupulation of more than eight thousand; and it should further be admitted that under the law the failure of the sheriff to file within the time limited by the statute a proper bond, necessarily deprived him of his character as an actual incumbent, the results claimed by petitioner would not follow.

It would not be the effect of the new census to reorganize Shasta as a county government of the second class. Each supervisor must be an elector of the district he represents. (Pol. Code, § 4023.) The new census would impose upon the existing board of supervisors the duty of redistricting the county—a duty which could perhaps be enforced by mandamus. (Pol. Code, § 4023.) The increased population would give Shasta a right to a governmental organization as a second-class county, but the Code provides the only mode by which such organization may be given an actual existence and operation. Until the county is redistricted, and provision made for the selection of the appropriate number of supervisors, Shasta remains of the third class. Otherwise it would be a second-class county as to the sheriff's bond, but a third-class county with reference to the far more important matter of the number of its governing body, their powers and duties.

The title of the Code in which are found the sections above referred to is “ The Government of Counties.” A county government of the second class is one with five supervisors. Shasta has three supervisors, and cannot have more until the three shall redistrict the county. Until they discharge their duty of providing five districts, so that the county government may be made to accord with other county governments of the second class, Shasta remains a third-class county, although it may be, in a sense, classified as of the second class, and entitled to a second-class government. Its officers are officers of the third class. The Code contemplates no such anomaly as that a third-class county shall have a second-class sheriff. Section 4122 of the Political Code requires of county officers official bonds corresponding to the class of the county “ of which they are officers.” All are officers of the same class. Hopping is sheriff of a county of the third class, until the government of a second-class county is set into operation.