The morning call., 1895-03-03
MOSES A. GUNST
KEEPS HIS SEAT.
JUDGE SANDERSON DECLARES HIM
THE LEGAL POLICE CON-
MISSIONER.
HAMMOND'S CASE FIXED IT.
THE DECISION IN THAT ACTION
RULES AGAINST MENZIEs AS
WELL.

Moses A. Gunst for the time being is
firmly seated as a member of the Police
Commission, for Judge Sanderson, to whom
the controversy between him and Stewart
Menzies was submitted, has so decided.
The case will be taken to the Supreme
Court for final decision, but as Judge San
derson has based his ruling upon an opin-
ion filed by the Supreme Court in a similar
suit, that of the People against Hammond,
it is not expected that the Judgment just
rendered will be reversed.
In rendering his opinion Judge Sander
son said that in his judgment the case of
the People VS.. Hammond was decisive in
the case at bar, and upon the dictum OF the
Supreme Court in relation to it he rested
his judgment in deciding in favor of the
validity of Gunsts claim to the commits
sionership. The Hammond case in brief
was as follows:
Prior TO the death of Mr.. Hammond and in
1884 Governor StonemGn named William NJ
Hinton as Police Commissioner in place of Mr.
Hammond on the theory, presumably, that Mr..
Hammond having held the Office for four years
(snd over there was vacancy" under a Sec
tion of the constitution which declares that no
term of office, except as allowed by the consti-
tuition, shall exceed four years, which vacancy
the Governor had the right TO FILL Hammond
declined to surrender the Office to Hinton, who
sued for the same as Mr. Menzies does here,
and the Supreme Court held Hinton not en-
titled to the Office, saying there was no vacancy
for the Governor to fill.
Continuing, the opinion says: Upon the
death OF Mr.. Hammond, which, in fact and law
created OF Itself q vacancy in the office, Gov
ernor Markham appointed Mr.. Burns in Mr..
Hammond'S stead. Burns served until Janu-
aTy OF this year, when he resigned, and Gov
ernor Markham thereupon appointed GunSt to
fill the vacancy caused by the resignation of
Burns, and Gunst IS now an incumbent, with
AYord and Tobin, of the office.
few days after the appointment of Gunst
and in January of this year Governor Budd
notified GunSt and the other Commissioners
that he had removed GunSt from Office ana ap-
pointed the relator, MenZies, thereto. Menzies
demanded the office, which Mr.. GunSt refused
10 surrender, hence this contention.
1t is claimed on behalf of Menzies that there
IS distinction in fact, and conseq uently in
law, between his position and that OF Hinton
when striving to obtain the Office from Ham
1nond, inasmuch as there was no formal act of
removal OF Hammond by Governor Stoneman
prior TO his appointment OF Hinton, as shown
IN the case OF the people VS.. Hammond. The
Supreme Court says in the people VS.. Freese:
"The mere appointment of a successor would,
per Sc, be q removal of the prior incumbent
We think that the appointment OF a
successor in an Office where an officer is re-
movable at pleasure is a sufficient act OF re-
noyal."
The court then reviewed the authorities
submitted and the various minor points
raised by both sides and concluded in these
words:
The Attorney-General, in his opinion, when
advising the Governor OF his power TO remove
and appoint these Commissioners at his pleas
ure, does not mention the case of People vs.
Hammond (supra), which holds just the other
way, and | must assume therefrom that he
felt himself free to ignore it do not.
The constitution itself and the Supreme
Court decisions which have noted herein all
proceed upon the lines that the power of the
Governor as TO appointments, except in the
few cases where otherwise expressly authorized
by law, is plainly restricted under the consti-
tuition 10 the filling of vacancies and his an
pointees then 10 only hold their offices for
limited period, in order that the true source of
all authority-the people-may have speedy
opportunity TO select their own local officers
in such manner as they may desire. Ii the
constitution plainly guarantees anything it is
that the people may have local self-govern-
ment. The Supreme Court has never vet said
that the constitution can be set aside in order
that succeeding Governor may remove from
office an appointee of the preceding executive
and do not think that court will ever say so
Ii the constitution should thus be set at
naught by any court, the evils that would
surely follow would be far worse than those it
sought TO remedy. The people can bear, as
they have before and will hereafter with Off
cials whose positions they may desire to see
filled with other citizens, but they cannot
afford 10 have their laws disregarded by the
courts in order TO crafty such a desire. Relief
and that only temporary relief, which is pur-
chased at such price comes at altogether too
high a figure.
II plainly appears in People vs. Hammond
that the court was of the opinion, and decided
that the Governor had no power to remove
Hammond and appoint Hinton in his place.
There is no legal distinction whatever between
the position OF the defendant, Gunst, and Ham
mond: nor, for that matter, between the de-
fendant, Gunst and Alvord and Tobin.
If the present Governor can remove Gunst
he can also remove his associates. Gunst
stands, in law, in the place where Hammond
stood when the Governor, in 1885, sought to
remove him by appointing Hinton in his stead
The supreme Court held 1t could not be done,
for the sole and simple reason that the power
OF the Governor WAS limited to the filling of
vacancies as 20 these Commissioners, and that
there was then no vacancy in the Office for the
reason that Hammond was then the incum-
bent, and performing the duties thereof.
On the authority OF that case, therefore, if for
none other, the judgment must be for the de-
fendant, and il is so ordered.