
    [No. 8848.
    Department One.
    May 6, 1885.]
    THE PEOPLE ex rel. W. V. McGARVEY, Appellant, v. U. HARTWELL, Respondent.
    Public Office—Vacancy by Non-useb—Voluntaby Subbendeb by Isouaibent.—A public office becomes vacant by non-user, and subject to be filled by the appointing power, when the lawful incumbent voluntarily surrenders the office to another under the'mistaken belief that the latter had been elected as, and was his rightful successor, and acting upon such belief for a period of two years ceases to discharge the duties of the office, and makes no demand of the person to whom he had surrendered it to be restored thereto.
    Appeal from a judgment of tile Superior Court of Monterey County.
    The facts are stated in the opinion of the court.
    
      A. L. Hart, N. A. Dorn, and W. M. R. Parker, for Appellant.
    The office of tax collector has never been vacant. An office is not vacant where there is a de facto incumbent. Defendant has always, since the relator gave him. the office, been the de facto tax collector, and the most that can be said, is that the relator has allowed another person to perform the duties of his office.
    
      D. M. Delmas, W. H. Webb, and James A. Wall, for Respondent.
   McKee, J.

Under the provisions of chapter 5, title 10, of the Code of Civil Procedure, this action was commenced to oust defendant from the office of tax collector of Monterey County, and reinstate the relator. The court by its judgment ousted the defendant, but refused to reinstate the relator; and from so much of the judgment as denied the right of the plaintiff to the office, the relator as well as the people appeal.

The judgment was rendered upon a finding of facts which shows that the relator was the duly qualified tax collector of Monterey County from March, 1878, until the first Monday of March, 1880, during which time he continued to discharge the duties of the office. But on the last-named day he voluntarily surrendered the office to the defendant upon the mistaken belief that the defendant, who had been elected, at the general election of 1879, treasurer of Monterey County, was ex-qffiaio tax collector of the county, and his rightful successor in office. Upon that belief he acted for two years, during all which time he ceased to discharge the duties of the office, and made no demand of the defendant, to whom he had surrendered it, to be restored thereto.

Public office is held upon the implied condition of diligently and faithfully executing the duties belonging to it; and a wilful refusal to perform the duties works a forfeiture. (King v. Rook, 2 Raym. Ld. 237; Rex. v. Wells, 4 Burr. 2004.) By the surrender and non-user of the office for a period of two years relator therefore forfeited his right to it. The office became vacant. Section 996 of the Political Code provides:—

“An office becomes vacant .... by the incumbent’s ceasing to discharge the duties of his office for the period of three consecutive months, except when prevented by sickness, or when absent from the State by permission of the legislature.”

And being vacant, it was subject to be filled by the appointing power. (Section 4115, Pol. Code.)

Judgment affirmed.

McKinstry, J., and Ross, J., concurred.  