The morning call. [volume] (San Francisco [Calif.]) 1878-1895, 1894-04-25

COMMISSION 1851.
The two points upon which will rest the
burden of the contest to be made will be
first, that the Police Commissioners have
legal existence, that their right to hold
nffire is not warranted by the constitu-
ton, and, secondly, that they cannot re-
move an officer without first giving him
hearing
Regarding the first point, the legality OF
the existence of the commission was
stated by an attorney last night TO be up
held in The People VS.. Hammond, 66
Cal. ga, and again upheld by recognition
in The People VS.. Edwards, SO CAL, 1885,
The point was urged in the first case that
because the Judges of the District courts.
which at that time answered to the present
Superior courts. by whom the Police Com
missioners were appointed. had ceased TO
exist. that the officers who were by them
appointed also ceased to have any exist
encs. This same point was raised In the
Edwards case. Edwards having been APP
pointed Fire Commissioner by the Judge
of the old County Court.
In each case the point was held to be
not we'll taken, for the reason. among
others, that the incumbents OF these Offices
the law made provisions for their success
sors, and that. in the event of vacancy,
the Governor was authorized under the
constitution TO fill it. so that the commits
sion might be continuous. This ground
of contention had its rise in the
claim of the deposed plaintiffs,
that the power of appointment
delegated to the old District Judges de-
scended to their successors, the Superior
Judges, but this was decided to be an
erroneous view of the matter; in other
words. that while all Judicial power held
by the District Judges was passed on to
The Superior Judges, the descent OF power
ceased there. and did not include that OF
the appointment of any commission.
For that reason the Police Commission
has earned for itself the name of the
Eternal Commission" for there is no
provision In the constitution for the re-
moval of the Commissioners with tout good
cause. The Governor can fill a vacancy,
but neither he Dor any other power can.
without cause, create one. The Commits
sioners are therefore legally holding office
until their successors are appointed, a con-
tingency which, except in the event Of
possible.
In support of the power of the commits
sion to remove an officer without a heat
ing. and without the formal preferring of
some charge, the lawbooks ,again. recite
cases in support of the Com missioners.
The principal authority is contained In
The People VS.. Hill, Cal, 81, decided by
Chief Justi Murray IN 1857. r. B. Monks
had been appointed a captain of police in
San Francisco, and was afterward re-
moved without hearing, without the fl
ing of any charges, and in most summary
manner, so the record states. His place
was filled by Hill.
On deciding the case the Supreme Court
held that under the constitution if no term
of office was provided for a public officer
the Legislature could fix such term. the
constitution expressly providing that an ap-
pointee should hold Office during the
pleasure of the authority making the ap-
pointmen The court also held that
provision in the law, that a man should
not be removed except after trial upon
charges preferred, did not alter the case
In the slightest degree. His term of Office
was not fixed by law. nor was it fixed by
the constitution. and the appointing
power was therefore expressly authorized
by the constitution 10 remove him at will.
This case was the subject of animated
discussion in the case of Smith VS.. Brocon
I59 Cali ornia 672], decided in 1881. Smith
was a police officer in Sacramento, ap-
pointed under statute authorizing him to
hold office during good behavior. He was
With oh hot
against him and without the formalitv of
trial and without any notice whatever. He
brought suit against the Police Commission
for reinstatement. The Supreme Court
held that it was within the power of the
Police Commission of Sacramento to re-
move him, because, as the Legislator did
not fix any specified time during which be
might hold office, the constitution author
lied it to remove him at will.
Upon the auth ority of these two cases a
similar decision was rendered by Judge
Hunt against John Sedgwick and In favor
of Samuel Shear liz a contest as to the
right to hold the office of Superintendent
of the House of Correction.
Through all these legal points, however.
there is one CLEAN of hope shining for the
deposed police officers. The decisions ap-
ply only to public officers and does not in
clude public employees. While 1t may
degrade the dignity of the police officer to
term him an employe instead of an officer.
still in that capacity he has fighting
chance in trouble Of this kind, for his rela-
ton to the commission is a sort of con-
tract relation. He would then be in the
| position of the schoolteacher. who cannot
be removed. and who has proved as much.
except upon the filing of specific charges
and after trial. II he be public officer,
however, the poiceman's tenure of office
rests with the discretion of the Commits
sioners. and he has naught to say in the
matter.
This question of public officer and a
public employe. and the difference be-
tween them. is a vexing one, and one
| which has never been definitely decided.
The general supposition has been that he
who is required to take an oath of office is
a public officer. while he who may omit
that formality and still work for the pu b.
| lie is public employe. This rule is very
| indefinite. however. and has never been
tested, but behind what little shelter it