The morning call. [volume] (San Francisco [Calif.]) 1878-1895, 1895-01-16
REMOVAL Oh GUNST
Budd Appoints Stewart
MenzieS.
IT CAUSES A SENSATION.
Sinking the Fight for the
SenatOrShip.
TO BE TAKEN INTO COURT.
Governor Markham's Appointee Will
Not Surrender.
ONE COMMISSIONER TOO MANY NOW.
There Will Be Some Trouble Before the
San Francisco Police Depart.
ment Finds Its Level.

SACRAMENTO, Jan. 15.-Mose Gunst was
removed from the Office of Police Commits
sioner of San Francisco at 1 80 PM. by Gov
ernor Budd, and shortly afterward was for
mally notified of the fact. Later in the day
the Governor filled out a commission for
Stewart Menzies to succeed to the vacant
place on the Police Board. The removal of
Gunst was made with the authorization of
Attorney-General Fitzgeralds legal opin-
ion. This is the text of the opinion:
State of California, Attorney Generals office, W.
F. Fitzgerald, Attorney-General, Sacrament
to, January Is, 1895
Hon. James h Budd, Governor of the State
of California-DEAR SIR: Replying to your in
quiry of this day as to ''what is the power of
the government with reference to the removal
OF an appointee of the Board of Police Com
missioners of the city and county of San Fran
cisco and to fill by appointment the vacancy
caused by such removal?'' l will especially
state that the Board of Police Commissioners
of said city and county was created by the act
approved April 1, 1873. This act among other
things, provides that the District Judges there
in named are empowered and required "to
choose three citizens of said city and county,
householders of good repute, without respect
to their politics. who, together with the Chief
of Police shall constitute the Board of Police
Commissioners of said city and county.
"All vacancies shall be filled by the aforesaid
Judges making the appointments"
There is no term of Office prescribed for these
officers by this act, nor by any other law of this
State
The appointing power provided for by this act
was abolished by the constitution, and no ex-
press provision having been made either by
the constitution or by statute providing for the
exercise of such power by any other officer the
question then to be determined is, Where does
this power vest?
Section 16 of article Xxx of the constitution
provides that "when the term of anv officer OF
commissioner is not provided for in this con-
stitution the term of such officer or commits
sioner may be declared by law; and if not so
declared, such officer or commissioner shall
hold his position as such office. or commits
sioner during the pleasure of the authority
making the appointment; but in no case shall
such term exceed four years"
This section of the constitution was con-
strued by the Supreme Court of this State in
the recent case of Higgins VS.. Cole 600 Cal,
260-64), in which it was said that "as the term
of Office was not fixed by the constitution nor
declared by law, it must be held that appel
lants term continued only during the pleasure
of the appointing power and that he was rightly
removed"
Upon this subject section s7S of the Political
Code further provides every office of which
the duration is not fixed by law is held at the
pleasure of the appointing power"
From this section it will be seen that the
Legislature in emitting to prescribe the term
of Office of such commissioner has left the dura-
ton thereof to the pleasure of the appointing
power.
In order then to determine in whom the
power of appointment vests in this instance,
TO- nolyo
ment having been abolished as stated we must
look first to section of article Xxx of the con-
stitution which provides that sail officers or
commissioners whose election or appointment
is not provided for by this constitution,
and all officers and commissioners
whose offices or duties may here
after be created by law, shall be elected by
the people or appointed, as the Legislature
may direct" Z"
AS neither the constitution nor the statute
prescribes any express mode for making such
appointment the provisions of section S75 of
the Political Code must necessarily control.
That section reads as follows: "Every officer,
the mode of whose appointment is not pre-
scribed by the constitution or statutes, must
be appointed by the Governor"
In view of these provisions of the constitu-
ton and the statutes 1 am of the opinion that
you, as Governor, have the power to remove
"an appointee on the Board of Police Commits
sioners of the city and county of San Fran
CISCO and to fill by appointment the vacancy
caused by such removal" Respectfully yours,
w. F. FITZGERALD Attorney General.
It was expected that the newly appointed
Commissioner, Stewart Menzies, would
leave Sacramento for San Francisco this
evening, but he finally decided to wait
until tomorrow morning before departing.