Bennett v. Superior Court of Placer County

• Decision Date: 28 March 1955
• Citation: 281 P.2d 285,131 Cal.App.2d 841
• Court: California Court of Appeals Court of Appeals
• Parties: Sherlie BENNETT, Petitioner, v. The SUPERIOR COURT of the State of California, in and for PLACER COUNTY, Respondent. Civ. 8778.

Page 285

281 P.2d 285

131 Cal.App.2d 841

Sherlie BENNETT, Petitioner, v. The SUPERIOR COURT of the State of California, in and for PLACER COUNTY, Respondent.

Civ. 8778.

District Court of Appeal, Third District, California.

March 28, 1955.

Srednik & Gibson, Roseville, for petitioner.

Edmund G. Brown, Atty. Gen., by Doris H. Maier, Deputy Atty. Gen., for respondent.

PEEK, Justice.

Petitioner seeks a writ of mandate compelling the respondent superior court to consider her application for probation on its merits, said court having refused to do so on the ground that petitioner is ineligible for probation under the provisions of section 1203 of the Penal Code.

By an information filed by the District Attorney of Placer County, petitioner was charged with a violation of section 424, subd. 3, of the Penal Code, in that she 'did willfully, unlawfully, feloniously and knowingly keep false accounts relating to the receipt, safekeeping, transfer and disbursement of public money, and she, the said Sherlie Bennett, was then and there the Clerk of the Roseville Judicial District Court, County of Placer, State of California.' To the crime charged she entered her plea of guilty and made a formal motion for probation. The probation officer's report recommended probation subject to certain stated conditions 'providing the defendant is eligible for release upon probation.' At the hearing on her application the court stated that were it not for the provisions of section 1203 of the Penal Code, it would 'entertain her motion for probation and accept the recommendation of the Probation Officer.'

The pertient portions of Penal Code, section 1203, provide in part,

'[P]robation shall not be granted * * * to any public official or peace officer of the State, county, city, city and county, or other political subdivision who, in the discharge of the duties of his public office or employment, accepted or gave or offered to accept or give any bribe or embezzled public money or was guilty of extortion. * * *'

Petitioner makes two main contentions: (1) That she is not a public official within the meaning of said section, but merely an employee; (2) that she was not convicted of the crime of embezzlement, and hence did not come within the ineligibility provisions of said section.

Some states have endeavored by statute to define public office. Here, however, the statute neither defines the words 'public official' nor does it specify the positions which are deemed to be public offices. Apropos of the question posed, the court in Patton v. Board of Health, 127 Cal. 388, 397, 59 P. 702, 705, after discussing numerous cases observed that 'the definitions of the term 'office,' while not inaccurate, taken in a general sense, are quite inadequate when applied to particular cases.' And that the disagreement is not so much as to definitions as it is in their application to the circumstances of particular cases.

In the case of People ex rel. Chapman v. Rapsey, 16 Cal.2d 636, 107 P.2d 388, the court had before it for consideration a question as to the right of defendant to hold the office of city attorney and city judge in a city of the sixth class. In discussing the definition of the term 'public office' the court quoted approvingly from the earlier case of Patton v. Board of Health, supra, wherein it was said,

'It seems to be reasonably well settled that where the legislature creates the position, prescribes the duties, and fixes the compensation, and these duties pertain to the public, and are continuing and permanent, not occasional or temporary, such position or employment is an office, and he who occupies it is an officer. In such a case, there is an unmistakable declaration by the legislature that some portion, great or small, of the sovereign functions of government are to be exercised for the benefit of the public, and the legislature has decided for itself that the employment is of sufficient dignity and importance to be deemed to be an office.' 127 Cal. at page 398, 59 P. at page 706.

In the later case of Leymel v. Johnson, 105 Cal.App. 694, 288 P. 858, the court quoted with approval from volume 21, California Jurisprudence, pages 819 and 820, (the same was also approved in People ex rel. Chapman v. Rapsey) that----

"The words 'public office' are used in so many senses that the courts have affirmed that it is hardly possible to undertake a precise definition which will adequately and effectively cover every situation. Definitions and application of this phrase depend, not upon how the particular office in question may be designated nor upon what a statute may name it, but upon the power granted and wielded, the duties and functions performed, and other circumstances which manifest the nature of the position and mark its character, irrespective of any formal designation. But so far as definition has been attempted, a public office is said to be the right, authority, and duty, created and conferred by law--the tenure of which is not transient, occasional, or incidental--by which for a given period an individual is invested with power to perform a public function for public benefit.

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"Of the various characteristics attached to public office by definition, some are regarded as indispensable, and others, while not in themselves conclusive, are yet said to indicate more or less strongly the legislative intent to create or not to create an office. One of the prime requisites is that the office be created by the Constitution or authorized by some statute. And it is essential that the incumbent be clothed with a part of the sovereignty of the state to be exercised in the interest of the public." 105 Cal.App. at page 697, 288 P. at page 859.

The California Constitution provides, under article 6, section 11, that justice courts are made a part of the judicial system of the State, and the Legislature is authorized to prescribe the manner in which the number, qualification and compensation of the judges, officers and attaches of justice courts shall be fixed. Pursuant to this provision, the Legislature, by section 71040 of the Government Code, has authorized the board of supervisors to divide respective counties into judicial districts, and by section 71600...