Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1880-06-05
DoLAN VS.. CITY BOARD OF TRUSTEES

Has the Board of Police Commissioners power
to remove member of the department
without charges being preferred?
The petitioners counsel consists of Greed
Raymond, c. L. Jones, E. NJ. Martin and
|. 5. Brown; the respondent was represented
| by City Attorney w. A. Anderson.
1t was contended by petitioner:
Flrst-Ihe Board of Police Commissioners
had never been properly qualified to act as
such, inasmuch as Section z of the Act Of
1877 IN relation to this subject requires them
to take, in addition to their usual oath OF
office las Mayor, Police Judge and Chief OF
PolIcel further oath specially in regard to
their duties as Police Commissioners, which
additional oath was not taken by two mem.
bers of the Board
Second-That under the Act of March 6,
1872, the Commissioners had no power to
remove an officer without charges being
made, Section of the Act providing ''that
the Board shall have the power to remove
any member of the Police Department for
the violation Of any rule or regulation which
they may make or promulgate to the said
Police Department, or for other good cause,
but only on written charges preferred against
and served upon him"
1t appears from the evidence and facts adj
mitted that no charges had been preferred
against the petitioner, and hence his attor-
neys lay much stress upon this point, claim
ing that there was no other manner in which
they could be removed under the law by the
Board
Respondent claimed that it did not matter.
So long as the officers acted de fdcto, the acts
would be legal
The petitioner claims that until he should be
removed as above stated, by written charges,
ETC., his tenure of office is permanent, which
point is based upon a portion of Section 6,
Act of 1872. which provides that s. the said
Board upon entering upon the duties of said
offices las Commissioners shall appoint a
permanent police force, etc.
The records of the Board of Commissioners
show that the petitioner and ten others were
elected to office April 1, 1878, "to hold Office
from this time during the pleasure of the
Police Commissioners, not to exceed two
years, and this is admitted by both as fact,
but petitioner claims that inasmuch as the
statute says they shall be permanent DO.
lice force, no stipulation which the Board
could make limiting the period of the ap.
polntment could contravene and change the
statute, and hence the appointment would be
permanent. And in support of this sew
eral cases were cited. among them one from
Michigan reports, in which a man was ap-
POAhbcb W eiiI oliCc LOT one year, winch was
decided by the Supreme Court to be an APP
pointment for two years, as that was the
limit fixed by the statute.
On the contrary it was argued by Mr.. An
derson, for respondent, that the manner of
appointment on April 1. 1878, amounted to a
contract between the petitioner and Com
missioners, and binding. He also
urged that the petition for mandate
was not the proper remedy; that
the title to the office being the question at
issue, that quo lcdrranto or usurpation of Office
under Section 800 of the Code of Civil
Procedure, is the proper remedy. if any exists.
Petitioner claimed that under the Act of
March 6, 1872, the Commissioners could not
remove without cause.
Respondent argued that Section of the
said Act, strictly construed, would be in
derrogation of Section Z, Article N. of the
old Constitution, and Section 16 of Article
XXI of the Constitution of 1879, which
provides that "When the duration of any
office is not provided for by this Constitution,
it may be declared by law, and if not so de-
clared it shall be held during the pleasure of
the authority making the appointment,
and cited in support of this view the decision
of the Supreme Court of this State in 9TH
California Reports, page 102, which holds
that :" d law which provides that an officer
tain cause does not restrain or limit the
power of removal to the cause or manner in
dicated. The power to remove is an incident
to the power to appoint. a law
which simply provides that party shall not
be removed except in given case, when the
duration of the office is not declared, must be
unconstitutional" There we've several mi
nor points raised during the trial, involving
the questions when the term of Office expires,
and as to the power of the Police Commits
sioners to pass rules and regulations But
the serious questions seemed to be, whether
the acts of the Commissioners in appointing
eleven officers on April g. 1880, were legal,
such Board not being properly qualified, and
whether the Board, if properly qualified, and
their acts were legal, had authority, under
the Act of 1872, to appoint new set of Off
GERS. The case was deliberately argued by
Martin & Jones for petitioner, and w. a.
Anderson for respondents, with unnumbered
citations and authorities on both sides. The
case was taken under advisement by the
Court until next Tuesday, when decision,
it is expected, will be given.
KILLED IN A RUNAWAY. " esterday be-
tween u and o'clock P. NJ, John Eberhardt,
teamster who resided on / street, between
Twenty-frst and Twenty second, had a run
away in which he was killed. He was of
very strongly dissipating habits and his death
was caused directly by intoxication. He
had been hauling dirt during the forenoon for
the streets and dumped his last load on
IL street above Twentieth, at which time he
was strongly under the influence Of liquor
He then went to Twentieth and H and
watered his team and got drink, and was
next seen at the corner of Fourteenth and g,
where he got another drink at Keeber's
saloon, and then got upon his wagon and
started home. He soon after started
his horses into a run, and had not
gone far in that manner before he
fell off in front, striking across the
outside trace of the off horse, in which posi-
ton he remained and was dragged with his
head and arms striking and dragging upon
the ground on the outside and his legs pound
ing against the horses heels. The team kept
up G. street as far as Seventeenth, when w
G. Curle made an effort to stop it, bat only
turned its course down Seventeenth street.
which it followed as far as J, when John A.
Lafferty succeeded in bringing them to a
he still remained, and laid him under tree
when it was found that he was terribly
bruised and mangled. and only breathed a
few times after being released from his fatal
position. He was frightful sight to behold,
and all his clothing and covering had been
torn from him except one boot and his under
shirt, of which also one sleeve was entirely
gone The body was soon after taken by the
Coroner to the dead-house. He was little
over go years old, was German. and leaves
wife.
In CoMPENsATIoN.-The enterprising firm
of Weinstock & Lubin, of the Mechanics
Store, generously consented to allow the
space held by them under contract on the
first page of this paper to be used in present.
ing the splendid special report of the RECORD
UNION Of the Chicago Convention. Notwith-
standing the omission of the advertisement
mentioned, the Mechanics Store still con.
tinues to occupy 100x16O feet of space to do
business on the most approved principles of
exact change and fair dealing; to still proceed
upon the theory that the best interest of the
customer is the highest interest of the mer-
chant, and to deal in every article of apparel
from boots shoes. slippers and sandals for
the feet to hats, caps, bonnets and plumes
for the head. And all this is not less true
because in compensation for the loss of ad-