The morning call., 1895-01-16

hat when the term of any Commissioner
is not fixed he may hold during the pleas
ure of the appointing power, but that his
term shall not exceed four years.
''This provision seems to have been acted
upon in the case of The People VS.. Ham
mond (66 Cal, 655), which was intended to
GUST the late Police Commissioner Hahn
mond, on the ground that his four years
term had expired, and the relator, Hinton,
had been appointed by the Governor in
his stead This appointment by the Gov
ernor was because the District courts had
gone out of existence and it was sup
posed that the authority of the District
Judges under the statute of 1878 had not
been transferred to the Judges of the Su-
perior courts or to any other persons.
"But the difficulty was that under article
V, section 8, of the constitution the power
of the Governor to appoint, as respects the
question under discussion, was limited to
vacancies, and the Political Code, section
$40, provided that every officer must con-
tinue to discharge the duties of his office,
although his term has expired, until his
successor is elected and qualified.
There was no provision of law for an
election and qualification of Police Com
missioner and although Major Hammond's
term of four years had expired he still held
the Office, and there was no vacancy for
the Governor to fill.
1.-THE result of this appeal was that Hin
ton failed. A vacancy, however, exists
when the place is empty, through the
death or resignation of the Commissioner,
and then under article Y, section 8, of the
constitution, unless the power was else
where lodged, the Governor could appoint.
1.-THE commission, however, would ex-
pire at the end of the next session of the
Legislature, or at all events at the close of
four years, but for the requirement OF sec
ton $40 of the Political Code, which COM
PEELED the incumbent to hold over until the
death and qualification of his successor.
The same code, however, section 87S, pro-
vides that every Office of which the dura-
ton is not fixed by law, is held at the
pleasure of the appointing power.
consequently if vacancy ever existed
in the office of Police Commissioner, and
the Governor had and exercised the right
of appointment his appointee might be at
any time removed, but if not removed
would hold Indefinitely until in some form
another vacancy was created. 1t follows
from what have said that if Ex-Governor
Markham had the power to appoint, Gov
ernor Budd was authorized to produce
another vacancy by removal and fill it by
the appointment of that firm and exem-
plary citizen, Stewart Menzies.
Il have already guarded myself against
over positiveness for lack of time to inves-
tigate extensively, but there is a section
of the statutes which it seems to me might
be construed as transfer of the power to
appoint Police Commissioners from the
District to the Superior Judges. In the
statutes of 1880 (page 23) the following
section occurs: In all cases in which, on the
first day of January, 1880, any authority or
Jurisdiction was by law vested in the
county or Probate Court of any county, or
in the Judge thereof, or in any District
Court of such county or in the Judge there
of, such jurisdiction and authority shall
hereafter, while such law continues in
force, be vested in and exercised by the
Superior Court of such county or by
Judge thereof
If this section has been iudicially inter
preted l have not had time to discover the
fact. 1t seems to me that it would be no
more difficult to construe it as covering a
transfer of the appointing power than it
was originally to hold that judicial officers
could be invested with such power, or that
term limited by the constitution could be
in effect extended by a statute. If it
should turn out that the Superior Judges
have the authority to appoint, then the
action of both Ex-Governor Markham and
Governor Budd is void But, otherwise,
my strong impression is that Mr.. Menzies
should hold the 7ffica -