Weinberger

This is an original application for a writ of mandate directing respondent, as Controller of the State of California, to issue and delÍYer a warrant for the payment of salary allegedly due petitioner for his services as Judge of the Superior Court of the State of California, in and for the County of San Diego. Respondent, who has appeared by both demurrer and answer, refuses to issue a warrant, on the ground that petitioner is not a duly qualified judge in that there was no vacancy in the office at the time of his asserted appointment.

The facts are stipulated and (except as to the character of the proceeding) are similar in all essential circumstances to those involved in People ex rel. Happell v. Sischo, ante, p. 478 [ 144 P.2d 785 ], our opinion in which case has this day been filed and which' is determinative of this matter insofar as the question as to vacancy in office is concerned. We are satisfied that the Honorable Arthur L. Mundo, who was elected to the disputed office, who qualified for and entered upon, the term expiring January 8, 1945, and who, as a retired officer of the United States Navy, was recalled to active duty by competent orders effective September 8,…