Sacramento daily record-union., 1889-08-31
PERKINS ON TOP.
THE SUPREME COURT sUsTAINs JUDGE
ARMsTRoNG's DECISION.
State Library Trustees Elected by the
Legislature Held to be Eligible
to Their Offices.

An important opinion of the Supreme
Court was filed in the office of Clerk ]. S
Williams yesterday at the State Capitol.
1t is no other than the State Library case
over which there has been no small amour
of dispute. and it decides the point as tc
whether or not Dana Perkins will be tn,
State Librarian, and whether the Legisla
ture had the power to elect Trustees of the
State Library, who in turn elect the Lii
brarian.
Governor Waterman held that the power
of selecting Trustees was vested in himself
alone, and that when it came time 10 ap
point State Librarian, his Trustees would
select man for the position.
The Trustees whom the Legislature ap.
pointed were recognized to be Dana men,
and in order TO test their rights, Governor
Waterman, to whom leave was given to sue
in the name of The People of the State of
California," commenced suit against A. @.
Freeman, one of the present Trustees, in
! order to test his right to the office.
The matter first came up before Judge
Armstrong in this city, when the plaintiff
alleged That on January 20, 1855, the
Legislature of the State of California in
| JOINT convention assembled, at Sacramento
city IN said State, did elect the defendant.
a. @. Freeman, to the Office of a Trustee of
the State Library of said State. to hold
office for term of four years; that the
| said defendant entered upon and discharged
the duties thereof, and has Sc continued to
do ever since; that said defendant held and
holds said office under and by virtue of
oil ION 4 ,,,,t,,, ! =
any other election, appointment or other
wise. Plaintiff further alleged that de.
fendant did, on February 26, 1886, by
reason of the above facts, usurp,
lntrude into and unlawfully hold and exer-
else the office of Trustee Of the State Library,
| and does now unlawfully hold and exercise
the same office. Wherefore. plaintiff de.
| mands judgment that said defendant is not
entitled to said Office, but has usurped into
and unlawfully holds the same; and that
| saiddefendant be excluded from said office" {"
The defendant (Freemsn) demurred to
the complaint, on the ground that it did
not state facts sufficient to constitute a
cause of action; also, that the complaint
was ambiguous, unintelligible and uncer-
tain. Afterward, by consent Of counsel
and order of Court, the demurrer was with
drawn and the defendant (Freeman) an
swered the complaint, denying the alIega-
tions that he was usurping or unlaWfully
holding his office, and claiming the right
to the sane as g duly elected Trustee.
Then the complainant, through his at
tOrney, Henry c. Dibble, demurred TO the
answer Of the defendant, but the demurrer
| was oyerruled,
The case was submitted on the above
| statements, and Judge Armstrong rendered
his decision ordering judgment tor the de-
| tendant, and also that ne recover his costs
| of suit and accruing costs.
Governor Waterman appealed the case 10
the Suprememe Court, and their decision
was received here Yesterday. Following is
| a synopsis of the decision:
| In its opinion the Supreme Court re.
| views the facts of the case as above and
| quotes Section 1892 of the Political Code,
| which is as follows: THE State Library is
under the control of the Board of Trustees,
| consisting of five members, elected bv the
| Legislature in joint convention assembled,
and holding their Offices for the term OF
four years Continuing, the Court says
that if the making of appointments to office
| is function which, in the sense of the
| Constitution, appertains to the Executive
Department OF the State Government there
would seem to be no escape from the con-
| clusion that the appointment of the re-
| spOndent (Freemanj in this case by the
members Of the legislative department was
| invalid, unless by some specific provision
OF the Constitution such appointment is
| expressly directed or permitted On the
| part of the respondent it is contended that
| snch specific provision is found in Section
of Article Xxx but, continuing. the Court
| says: I'VE cannot construe this section as
an express direction or permission
/ to the Legislature to exercise the
power of appointment to office, il
that is essentially an executive
junction. 1t would upon such an aosump-
ton amount only to this; That with re.
spect 10 newly-created offices not provided
| for in the Constitution, the Legislature
may direct whether they shall be filled by
popular election, or by Executive appoint.
ment; IN other words, that the Legislature
may prescribe the rules of selection, but
may not itself make the selection. OuI
decision must, therefore, depend upon the
solution OF the question whether appoint.
ment to office is essentially an executive
function"
In conclusion is the following: "UBor
these considerations we feel constrained Il
hold that the power of appointment tC
Office, so far as it is not regulated by ex
press provisions of the Constitution, NAV
be regulated by law, and if the law so pre-
scribes, may be exercised by the member
of the Legislature.
"rhe judgment of the lower Court is &C
cordingly affirmed"