Porter

I dissent from the foregoing opinion, for the reasons expressed by me in the case of The People v. Brenham, 3 Cal. Reports.

Mr. Justice Heydenfeldt concurred.

On the 13th day of August, Wm. H. Badgley, County Judge of Calaveras County, tendered to the Governor (by mail) his resignation of said office, which by its terms was to take effect on the 1st of September.

The resignation was received by the Governor on the 24th of August. No action was taken by him in the matter until the 8th of September, when he appointed and commissioned respondent, who having duly qualified before a proper officer, entered upon the discharge of the duties of said office, which he continues to fill.

The fact that Badgley had resigned his office having been announced in the newspapers, the Board of Supervisors for Calaveras County ordered an election to fill the vacancy caused by said resignation, to take place on the day of the next general election, which was holdcn on the 5th of September, which order was published for more than ten days prior to said election.

Charles A. Leake, the relator, received at said election a majority of all the votes cast for the office of County Judge, obtained his certificate of election from the County Clerk, qualified and offered to enter into said office, but was prevented by…