921. State, county, township, and city officers must Nor not be purchasers at any sale nor vendors at any purchase made by them in their official capacity.

NOTE.-Stats. 1851, p. 522; see Sec. 71, Penal Code

Cal.

purchasers or vendors at cortain sales.

in

voidable.

922. Every contract made in violation of any of the Contracts provisions of the two preceding sections may be avoided violation, at the instance of any party except the officer interested therein.

officers

from

scrip, sto.

dealing in

923. The State Treasurer and Controller, the Certain several county, city, or town officers of this State, prohibited 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.

NOTE.-Stats. 1852, p. 64; see Sec. 71, Penal Code,

Cal.

officers,

duties of.

924. Every officer whose duty it is to audit and Auditing 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.

NOTE.-See Sec. 72, Penal Code, Cal.

duties of.

925. Officers charged with the disbursement of Treasurer 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,

27-VOL. I.

When settlements must be withheld.

sold, received, or transferred contrary to any of the provisions of this Article.

NOTE.-See Secs. 65-77, inclusive, Penal Code, Cal.

926. 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.

NOTE.-Election to be viva voce.-Const., Art. IV, Sec. 38; see Secs. 1031-1066, post, and notes. See Penal Code Cal.: Sec. 69. Resisting officers; Sec. 70. Extortion; Sec. 71. Violation of laws prohibiting certain officers dealing in securities or taking contracts; also, id., Sec. 176. See, also, Stats. 1872, p. 925, quoted in note to Sec. 3234, post.

Title

contested,

not be paid.

ARTICLE VIII.

SALARIES OF OFFICERS WHEN TITLE IS CONTESTED.

SECTION 936. Title contested, salary must not be paid.

937. Pendency of suit must be certified by the Clerk.

936. When the title of the incumbent of any office salary must 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.

Pendency

of suit must

NOTE.-The title is in question when information in the nature of a quo warranto is presented.-People vs. Scannell, 7 Cal., p. 432. Cannot be attacked in a collateral proceeding.-People vs. Sanovitch, 29 Cal., p. 480; see Secs. 1111-1127, inclusive, Code Civ. Pro. Cal., Contesting Elections, and notes.

937. As soon as such proceedings are instituted,

be certified the Clerk of the Court in which they are pending

by the

Clerk.

must certify the facts to the officers whose duty it

would otherwise be to draw such warrant or pay such

salary.

NOTE. This Article is founded upon the statutes of 1860, p. 108. The Codes have extended the provisions of that Act from "State" to "all officers."

ARTICLE IX.

BONDS OF OFFICERS.

SECTION 947. Time for filing bond.

948. Approval, filing, and recording bonds of State officers. 949. Bond of Secretary of State, where filed.

950. Bonds of county and township officers, approval, filing, and recording.

951. Record of official bond.

952. Approval must be indorsed on bond.

953. Bond not to be filed before approval.

954. Condition of bond.

955. Justification of sureties.

956. Sureties for less than the penal sum.

957. Custody of official bonds.

958. Form of bonds.

959. Construction of bonds.

960. Same.

961. Suit on bonds.

962. Same.

963. Defects in form, approval, filing, etc., not to vitiate.

964. Insufficiency of sureties.

965. Form of additional bond.

966. Force of original bond.

967. Liability of officers and sureties.

968. Separate judgments on bonds.

969. Contribution between sureties.

970. Discharge of sureties.

971. Persons appointed to fill vacancies, bonds of.

972. Release of sureties.

973. Same.

974. Same.

975. When office may be declared vacant for want of official

bond.

976. Supplemental bond.

977. Same.

978. Same.

979. Same.

980. Effect of discharge of sureties.

Time for filing bond.

SECTION 81. Provisions of Article apply to bonds of administrator,

etc.

982. Bonds of receivers, assignees, etc.

983. Actions on official bonds, effect of.
984. Same.

985. Bonds of deputies, clerks, etc.

947. Every official bond must be filed in the proper office within the time prescribed for filing the oath, unless otherwise expressly provided by statute.

NOTE. The meaning of the "terms" used in this section were determined by the Supreme Court in the case of Payne vs. San Francisco, 3 Cal., p. 125, as follows: The city charter provided (Art. IV, Sec. 15) "If any person elected to a city office shall remove from the city, absent himself therefrom for more than thirty days, or shall fail to qualify within ten days after his election, his office shall be deemed vacant." The Court say: "This provision we regard as be in peremptory and positive in its terms." And after refering to the several cases, Harris vs. Brenham, 3 Cal., p. 477 (Appendix); The People vs. Allen, Sheriff, etc., 6 Wendall, p. 486; Ex Parte Heath and others, 3 Hill, p. 42, and discussing the difference between "mandatory" and "directory" provisions, the Court say: "There is a broad distinction however between these cases and the one at bar, wherein the act to be performed was not an official act regarding the rights of others; nor was it for a public purpose, nor one in which the parties could suffer from the delay; it was not to affect the rights of third parties, but his own right. It affected him, the officer, his rights and duties; it came within the exception; the nature of the act to be performed, and the language used by the Legislature, showing that the designation of the time was intended as a positive limitation. And after having been declared duly elected by the proper officer the plaintiff has no choice but to accept or forfeit the office. His neglect to qualify within the ten days was a refusal on his part to serve, and vacated the office, so far as he had any right or claim thereto."-The People ex rel. Platnar vs. Jones, 17 Wend., p. 81. So it is here seen that the bond and oath must each be filed within the time provided for taking the oath, which is, unless a different time is prescribed by law, within ten days after the officer is notified of his election or appointment.-See Sec. 907, ante. The person elected to an office must give a new bond, although he is his own successor-having filled

66

the office for the preceding term.-The People vs.
Aikenhead, 5 Cal., p. 107. In The People vs. Clingan,
5 Cal., p. 391, the Court say: Acting as Sheriff,
*** together with the certificate of election, would
raise a presumption that he had executed his bond and
taken the oath of office.-See, also, as to when an
office is vacant, Sec. 996, Subd. 9, post.
"His refusal or
neglect to file his official oath or bond within the time
prescribed."-Doane vs. Scannell, 7 Cal., p. 394; Peo-
ple vs. id., 7 id., p. 432. In Brodie vs. Campbell,
17 Cal., p. 19, the Court, by Field, C. J., say: "A new
Judge cannot enter upon the discharge of his duties
until the fact of his election is in some way officially
determined and authentic evidence of it furnished to
him. For this purpose the law prescribes certain steps,
following each other in regular order. The returns of
the election are to be made from the different precincts
to the County Clerk. After a certain interval these
returns are to be opened and the votes counted. A
statement of the votes of the district is then to be pre-
pared, properly authenticated, and forwarded to the
Secretary of State. Upon this statement the Governor
is to issue his commission, and within ten days after
its receipt the person elected is to take and subscribe
the oath of office. The Constitution requires this oath
to be taken and subscribed before the officer can enter
upon the discharge of his duties."-Art. XI, Sec. 3.

SEPARATE BONDS.-In the case of People vs. Ross,
38 Cal., p. 77, it was held that "the offices of Sheriff
and Tax Collector, * * * though held by the same
person, are nevertheless separate and distinct offices."
Lathrop vs. Brittain, 30 Cal., p. 680. "In the absence
of any statute expressly providing that one official
bond only shall be required of a person who holds both
offices, and that such bond shall be for the faithful per-
formance of the duties of both offices, a separate bond
for each office is as much required as if they were held
by different persons."-People vs. Love, 25 Cal., p.

520.

Approval, recording

filing, and

bonds of

948. Unless otherwise prescribed by statute, the official bonds of State officers must be approved by the Governor, and filed and recorded in the office of State the Secretary of State.

949. The official bond of the Secretary of State must, after it is recorded, be filed in the office of the Treasurer of State.

officers.

Bond of of State,

Secretary

where filed