The record-union., 1895-01-16
GOVERNOR BUDD REMOVES GUNOH.
Where was the Light When Moses
Went Out?
Stuart Menzies Succeeds Him-Attor-
ney-General Fitzgerald's Opin-
ion in the Matter.

Governor Budd caused something of
sensation in political circles yesterday by
declaring vacant the position of Police
Commissioner for San Francisco to which
Governor Markham appointed Moses A.
Gunst just before he vacated the Guber-
Material office.
This order by Governor Budd was
promptly followed by another naming
Stuart A. Menzies of San Francisco to
succeed Gunst.
Before taking either of these steps the
Governor applied to the new Attorney
General, w. +. Fitzgerald, for his opinion
as to the power of the Executive to make
such change, and in response to the ap
plication the Attorney General prepared
and submitted the following:
SACRAMENTO, January Is, 1895.
Hon. James IL. BUdd, Governor Of the
| State Of CdIG0THad-DEAR SIR: Reply
ing to your inquiry of this day, as to
! what Is the power OF the Governor with
| reference 10 the removal of an appointee
! on tho Board of Police Commiss toner's of
| the city and county OF San Francisco,
| and to fill by appointment the vacancy
| caused by such removal" l would re-
spectfully state that the Board of Police
Commissioners OF said city and county
was created by the Act approved April
| l, 1878. This Act, among other things,
| provides that the District Judges therein
named are empowered and required
ITO choose three citizens OF said city and
! county, houSeholderS OF good repute,
! without respect 10 their politics, who,
| together with the Chief OF Police, shall
constitute the Board OF Police Commits
| sioners OF said city and county. y
! ALI vacancies shall be filled by the afore-
| said Judges making the appointments"
| There Is no term of oi1Ice 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 Constitu-
! ton, and no express provision having
| been made, either by the Constitution or
by statute, providing for the exercise of
such power by any ether officer, the
! question then to be determined is: Where
does this power vest?
Section Is OF Article Xxx. of the Con-
| stitution provides that when the term of
any officer or Commissioner is not pro-
| vided for III this Constitution, the term
! Of such officer or Commissioner may be
| declared by law; and ii not so declared,
| such officer or Commissioner shall hold
! his position as such officer or Commits
sioner during the pleasure of the author
| lty making The appointments; but in no
| case shall such term exceed four years"
| This section OF the Constitution was
! construed by the Supreme Court of this
| State in the recent case Of Higgins VS..
| Cole 200 Cal. 260-64j, IN which it was
| said that as the term of office was not
! fixed by the Constitution, nor declared
! by law, 1t must be- held that appellants
term continued only during the pleasure
Of the appointing power, and that he was
| rightfully removed"
! Upon tnis subject Section S78 of the Po-
litlcal Code further provides: Every
Office OF which the duration is not fixed
by law is held at the pleasure of the ap-
pointing power" ".r
From this section it will be seen that
the Legislature, IN emitting to prescribe
! the term OF office OF such Commissioner,
has LETT the duration thereof to the pleas
ure of the appointing power.
| In order then to determined in whom the
! power OF appointment vests in this in
stance, the original authority to make
| such appointment having been abolished
| as stated, we must look first to Section
! OF Article AA. OF the Constitution, which
| provides that ''All officers or commits
| siOners whose election or appointment is
not provided for by this Constitution,
| and all of1lcerS or Commissioners whose
Offices or duties may hereafter be created
| by law, shall be elected by the people, or
! appointed as the Legislature may Direct
AS neither the Constitution nor the
statute prescribes any express mode for
making such appointment, the provisions
OF Section o75 OF the Political Code must
necessarily control. That section reads
as follows: Every officer, the mode of
whose appointment is not prescribed by
the Constitution or statutes, must be ap-
pointed by the Governor"
In view OF these provisions of the Con-
stltuton and the statutes, am of opinion
that you, as Governor, have the power To
remove an appointee on the Board of Po--
lice Commissioners OF the City and
! County Of San Francisco, and to fill by
appointment the vacancy caused by such
removal Respectfully yours,
w. Z. FITZGERALD,
| Attorney-General