The San Francisco call. [volume] (San Francisco [Calif.]) 1895-1913, 1895-05-02
THEIR POWER At ISSUE,
Can the Board of Supervisors
Remove and Appoint at
Pleasure?
TEST CASES NOW PENDING.
Four Positions In Police Courts
Made the Subjects of
Contest.

In the opening SKlrmlSn OF the Dattle
which is to decide the scope of the power
of the Board of Supervisors to remove and
appoint clerks and prosecuting attorneys
to the Police courts as now constituted the
incumbents came out considerably the bet
ter yesterday.
Most interest centered in Judge Conlan's
court for which the board had appointed a
new clerk and a new Prosecuting Attorney,
A. l.. Morgenstern, the son of the Super
visor of that name, having been appointed
to the former office to succeed Ambrose
Watson, and E. P. Mogan to the latter to
succeed E. H. Wakeman.
AS soon as Judge Conlan had cleared
decks for the impending legal struggle by
disposing of the two minor cases on the
calendar, A. L. Morgenstern asked to have
the office of clerk turned over to him, stat
ing that he had been duly elected by the
Board of Supervisors and had qualified ac-
cording TO law by filing his bond with the
Auditor.
Judge Conlan replied: II shall certainly
refuse to comply with your demand.
question the power of the Board of Super
visors to remove Mr.. Watson and appoint
you in his place. You may be duly quail
fed, and I see no reason at this time to
question your qualification to fill the Office,
nor can | see a reason for the removal OF
Mr. Watson. l will consult my attorneys
some time this afternoon, and may render
my final decision in the matter to-mor-
row."
Morgenstern then turned to Watson and
asked him If he refused to transfer to him
his Office and all the public papers and
other appurtenances connected with it.
Watson promptly and emphatically re-
piled: 81 certainly shall not do so, for
several reasons.
Court was then declared adjourned until
tomorrow morning.
After court had adjourned E. P. Mogan
appeared and presented his certificate of
appointment as Prosecuting Attorney OF
Police Court 2, and the fact of it's presenta-
ton was, by order of Judge Conlan, placed
on record.
Judge Low recognized W. NJ. Madden as
Prosecuting Attorney to succeed j. III. Ro-
berts as soon as he presented his certificate,
and instructed him TO enter Immediately on
the performance of his duties. Roberts
protested and refused to surrender. Judge
Low then stated that the Board of Super
visors had executive power in the matter.
They had appointed Madden and he would
recognize HIM. He told Roberts, however,
that he need not waive any of his rights in
the case, and on this understanding Mad
den was installed, Roberts courteously in
structing him in the details of his Office.
Roberts will await developments before tax
ing any further action.
When the question came up in Judge
CampbelPs court Charles IL. Forbes, who
was elected to succeed Prosecuting Attor-
ney John c. Enos, presented his creden-
tails. Enos claimed that the court had no
jurisdiction. He was in the position, had
been regularly appointed and proposed to
keep his Office.
Forbes attempted to present points of
law to establish his right to the position
but Enos objected on the ground that the
court had no jurisdiction and his objection
was sustained.
Judge Campbell denied the right of the
Supervisors to remove Mr.. Enos. He
added that he was in consultation with his
attorneys in reference to the affair, and
would not make any decision until he had
received their advice. He promised rul-
ing on Saturday next.
However, the issues are decided by the
Police Judges, they will undoubtedly be
carried into the Superior Court, and likely
then to the Supreme Court. When the
Mayor was asked to sign the bonds of the
new appointees, he demurred, as he did
not wish to sanction the action of the
Board of Supervisors. The matter was
therefore argued before him, and he
eventually signed the bonds of Mogan,
Madden and Forbes. He had asked the
new appointees to give him twenty-four
hours in which to consider the matter, and
all consented except Morgenstern, who in
duced the Board of Supervisors, on April
20, to pass a resolution approving his bond
without the signature OF the Mayor, and
in this shape it has been filed with the
Auditor. Whether it is valid is one of the
questions that will come up for decision
later.
Considerable light is thrown on what are
to be the legal points on which the matter
will be argued when taken into the Supe-
rior Court in the written briefs filed with
Mayor Sutro in the matter of signing the
bonds
That of Charles II. Forbes claims that
the Police Court of San Francisco as at
present organized derives its powers from
an act of the Legislature, approved Febru-
airy %, 1898, wherein it is provided, "there
shall be appointed for each of the depart
ments OF this court, in the manner now
provided by law, an attorney" etc. This
act, it is claimed, is amendatory of the act
approved March 5, 1889, containing the
same provision, worded in the same man.
ner. In order to show what is meant by
Gin the manner now provided by law" ref
crence is made to the act of March 7, 1881,
which provided that the Board of Super
visors shall elect a prosecuting attorney
for the newly constituted Police Court at
the same salary per annum then being
paid to the existing tribunal of the same
ch aracter.
Reference is also made to the act of April
%, 1858, giving the Board of Supervisors
power TO appoint an assistant prosecuting
district attorney, who shall hold office dur
ing the pleasure of the hoard. 1t is also
provided in this act that the assistant shall
be prosecuting attorney for the Police
Court.
On the other side it is contended that the
appointees as prosecuting attorneys and
clerks must hold for at least year from
the date of their appointment, as the Civil
Code provides that servant is presumed to
have been hired for such length of time as
the parties adopt for the estimation of
wages, and that hiring at yearly salary
is presumed to be an engagement for
year. This is cited in connection with the
Consolidation act of March Z, 1881, which
provides that the Board of Supervisors
shall elect prosecuting attorney for Police
Court ''at the same salary per annumn