People v. Addison.

the first section, no one would have questioned the permanence of the office. And yet these words would have in no degree strengthened our position. They would have been but a further qualification of the tenure of the incumbent. Without them, possibly, his term would end with the expiration of two years, and he would have no right to continue in the enjoyment of the office until the appointment and qualification of his successor, however long it might be delayed. Such delay would merely leave an interregnum in the office. To prevent this public inconvenience, is the sole reason for adding such words. The power to appoint the successor is in no way derived from such words. With, or without them, the power is the same. It results from the provisions of the Constitution and the general laws in relation to the appointments to office, and the filling of vacancies in the same.

In this particular case, the law itself settles the question. The power of appointment is in the Governor and Senate, and is called into operation as often as the exigencies of the office require.

It is not perceived why the case of The People on the relation of Ryder v. Mizner, decided by this Court, 7 California Reports, 519, is not conclusive of this controversy. That case was a contest between Ryder and Mizner, as to their respective rights to this very office. Its decision involved the consideration of the powers and duties of the Governor, under the Constitution. and laws, in relation to vacancies in office generally, and particularly under the law now in question, and necessarily decided the question now raised. The Court do not specially comment upon this precise point, simply because nobody, for a moment, supposed that the law admitted of any such construction. The law was before them, and everything that had been done under its provisions. The rights of the parties before the Court necessarily depended upon their proper construction in connection with the Constitution and general laws. If there had been anything in the point now raised, it would have afforded an easy solution to the difficulty, and saved the Court the necessity of an elaborate discussion of grave constitutional law involved in the rights of the parties to an office, which, by the very law the Court were considering, had no existence. Our respect for this high tribunal of last resort, will not for a moment permit us to believe it could have so stultified itself. On the contrary, the very first sentence in the opinion of the Court in the case referred to, shows very conclusively that the Court understood the law as we understand it, and construed it as every branch of the State government has continued to do from the time of its passage. The Court say: "By the act of May 3, 1852, the office of gauger of wines and liquors was created, and the duration of the term fixed at the period of two years, the office to be filled by the ap

People v. Addison.

pointment of the Governor, by and with the advice of the Senate." The Court then go on to recite the facts, and to apply the principles of the Constitution and laws to the rights of the parties to the office in question in such a manner, as, in our judgment, to set at rest for ever the quibble now raised. The Court were well aware that the language used by the Legislature to express their will and intention, was usual and ordinary with legislative bodies in the creation and filling of offices. When that body creates an office, provides the mode of filling it, and prescribes the duties and term of the incumbent, it has done all that is necessary. If the Legislature intends that its action shall be temporary, it so provides. In the absence of such express provision, that creation is of course permanent. It would be difficult to find in any law a provision that it should continue to be law until repealed. The language employed by the Legislature in the creation of this office, is the same employed in the creation of many other offices, both by the Legislature of the State, and by Congress, in the creation of federal offices. It is yet to be learned that any such office ceases with the term of the first incumbent.

As examples of similar legislation, we cite the Court to the Act for the appointment of Pilots, Comp. Laws, 95; to the Act appointing Commissioner of Emigrants, Comp. Laws, 230. We might cite many such cases. The eighth section of the sixth article of the Constitution, providing for the election of County Judges, is liable to the same verbal criticism. The instances, in federal legislation, are innumerable. The President appoints district-attorneys, registers, and receivers of land offices, collectors, etc., under similar provisions of law. Indeed, it is a matter of indifference whether the law creating any particular office, prescribes the duration or term at all. The seventh section of article eleven of the Constitution, makes ample provision for all such cases.

The practice of the State and of the general government has, without question from any quarter, been in conformity with this doctrine. The contrary theory would have resulted in great public confusion. A construction of an act of the Legislature so excessively technical and unreasonable, and resulting in the defeat of the manifest intentions of the government, it is confidently believed, can never receive the sanction of this Court.

BURNETT, J., delivered the opinion of the Court-TERRY, C. J., and FIELD, J., concurring.

The objections made against the claim of the defendant are

two:

1. That there is no such office now in existence, it having expired by the limitation in the act creating it.

Stanford v. Scannell.

2. That the defendant was appointed in the recess of the Sen

ate.

The office was created by the act of May 3, 1852, the first section of which reads as follows:

"The Governor is hereby authorized and directed to appoint, by and with the advice and consent of the Senate, a gauger of wines and liquors, to reside in the city of San Francisco, and to continue in office two years."

The second section requires the gauger to take the oath of office, and give bond for the faithful discharge of his duties; the third section prescribes his duties and compensation; and the fourth fixes the penalty to be incurred for selling liquors without previous inspection.

It is true there are no words in the act expressly creating the office. It is also true, that in most of the acts creating offices there are either express words creating the office, or there is a provision that the incumbent shall hold his office for a given period, and until his successor is elected and qualified. But we think the intention of the Legislature to create the office of gauger is too clear to be doubted. The first and second sections speak of the "office;" the third, of the "officer;" and the first, of "gauger;" and the fourth, of "inspector." The office having been created, must be presumed to be continuing, unless limited by the terms of the act, or by the nature of the duties to be performed. In reference to this office, there is nothing temporary in its duties, nor is there anything in the language of the act limiting the duration of the office itself. The period of two years mentioned in the first section, only limits the term of the officer, and not the duration of the office. The fact that there is no provision in the act, allowing the incumbent to hold over until his successor is appointed and qualified, might confine his official existence strictly to the term mentioned.

As to the second objection, that was settled by the decision of this Court in the case of The People v. Mizner, (7 Cal. Rep., 519.) Judgment affirmed.

STANFORD v. SCANNELL.

The case of Stewart v. Scannell, (8 Cal. R., 80,) affirmed.

APPEAL from the District Court of the Fourth Judicial District, County of San Francisco.

This was an action to recover the possession of fifty-eight barrels of butter, and damages for the detention of the same.

Stanford v. Scannell.

In August, 1856, plaintiff bought of Lowe, Ebbetts & Co., of San Francisco, fifty-eight barrels of butter, worth the sum of seventeen hundred dollars. At the time of the purchase, the butter was in the cellar of the warehouse of Lowe, Ebbetts & Co., who were merchants, doing a jobbing and commission business in the city of San Francisco, and who were sometimes in the habit of receiving goods on storage. The plaintiff paid Lowe, Ebbetts & Co. the full value of the butter, and took from them a store-house receipt for the same. The butter was a lot by itself, entirely separate from other goods. No attempt was made at the time of sale to deliver the butter, but it was suffered to remain in the cellar without change. After the purchase of plaintiff, on the twentieth day of August, 1856, James Robertson, a creditor of Lowe, Ebbetts & Co., commenced suit against them by attachment, which was placed in the hands of the defendant, as sheriff of San Francisco county, by virtue of which he seized and levied upon the butter (claimed by plaintiff) as the property of Lowe, Ebbetts & Co., and put a keeper in charge of it, who took and kept the keys of the cellar. Some days after the levy, Robertson, the attaching-creditor, called on the debtors with the cellar keys in his hands, and proposed, on certain conditions, to release the attachment and surrender the keys. The debtors said they would consider whether they would comply with the proposition. Lowe then went to the sheriff's office, and the sheriff's clerk told him that the attachment was released, and he showed him written instructions to that effect. Lowe then immediately returned to the store, entered the cellar by the door of Davis & Seger, (who had rented and were occupying a part of it,) and delivered the butter to Mr. Davis, to be held by him for the plaintiff. At this time, there was no sheriff's officer in or about the building. Lowe then started out and met the keeper, who told him that the order to release the property from the attachment was countermanded. The keeper testifies that he still retained the keys, and on entering the cellar he found the butter precisely where he left it, with the marks thereon made when first seized. The property then remained in the charge of the sheriff. Robertson subsequently recovered judg ment in said action against Lowe, Ebbetts & Co., when the plaintiff brought this suit.

The case was tried in the Court below, without a jury, and a judgment rendered for plaintiff.

The defendant moved the Court to set aside the judgment and grant a new trial, which motion was denied, and the defendant appealed to this Court.

No briefs on file.

FIELD, J., delivered the opinion of the Court-TERRY, C. J., concurring.

Alverson v. Jones and Bogardus.

This case raises the same questions which were considered and decided upon a similar state of facts, in Stewart v. Scannell, (8 Cal., 80.) Upon the authority of that case, the judgment of the Court below is affirmed.

ALVERSON v. JONES AND BOGARDUS, (SHERIFF.)

A sheriff may be enjoined from selling real property belonging to the wife, under an execution against the husband.

Such a sale would be a cloud upon the wife's title to the property, as the deed of the sheriff would convey to the purchaser a prima facie title, which she would have to overcome by proof.

The right of the wife to acquire property by purchase, during the marriage, can only exist as an exception to the general rule as laid down by the "Act defining the rights of Husband and Wife."

This exception exists in the case of a sole trader, under the "Act to authorize Married Women to transact business in their own name as sole traders."

APPEAL from the District Court of the Eleventh Judicial District, County of El Dorado.

This was an action to restrain the defendants from selling, under an execution, certain real property belonging to the plaintiff. The plaintiff in her complaint alleges that in February, 1855, she made her declaration in writing, before a notary public of El Dorado county, "whereby she declared that she intended to carry on business in her own name and on her own account; and that such business was the business of livery-stable keeping, and trading in horses, and all things appertaining to such business; and that it was her intention to carry on the same in her own name and on her own account, and that she would be individually responsible for all debts contracted by her on account of such business; and that the capital invested in said business did not exceed five thousand dollars."

This declaration was regularly certified to, officially, by said notary, and was then duly recorded in the office of the county recorder of said county, and was also advertised and published in The Mountain Democrat, a public newspaper of general circulation in said county, for more than three successive weeks, beginning on the 10th day of February, 1855. For the purpose of enabling her to carry on said business, and as a part of the capital invested, she purchased and had conveyed to her the real property so levied upon, and paid therefor $1400, (the property is described in the complaint;) that she began said business at the date of her declaration and is still carrying on the business, and is the owner in fee and in the possession and use of said