The San Francisco call. [volume] (San Francisco [Calif.]) 1895-1913, 1895-12-17

of the City and County of San Francisco against
the claims of defendant thereto. Judgment
passed for plaintiff and defendant appeals.
The facts about which there is no contro-
versy, are: That r. p Hammond was mem
Der of the original Board of Police Commits
sioners of the City and County of San Fran
CISCO appointed under the provisions of the
act of the Legislature approved April i, 1878,
and commonly known as the McCoppin act
Hammond continued in Office until his death,
which occurred in 1891. AT and after the
time of his death H. III. Markham was Gov
ernor of the State, and he appointed D. NJ.
Burns to fill the vacancy thus arising.
Burns qualified, acted and became member
OF the board until January 5, 1895: Upon that
day vacancy occurred in the office by the res
ignation OF said Burns The Governor of the
State, H. H. Markham, upon said last-named
day, appointed defendant, Gunst, to fill this
vacant office.
Upon the 9TH day of January Gunst qualified
and entered upon the discharge of his duties.
Thereafter, ON the said day, the said II. II.
Markham was succeeded as Governor of the
State by James II. Budd.
Upon January Is, 1895, Governor Budd gave
notice in writing TO said Police Commission
and to the individual members thereof, includ-
ing the defendant herein, that he had removed
said defendant from office, and he likewise
caused formal declaration of removal to be
filed in the office of the Secretary of State.
Upon January 81, 1895, Governor Budd ap-
pointed relator herein Police Commissioner of
the City and County of San Francisco, "vice NJ.
A. Guust, removed" MenZies duly qualified
and upon Gunst's refusal to surrender, this pro.
ceeding was instituted.
There is no distinction in principle between
the contention made by appellant in this case
and that made in People ex rel. Hinton VS..
Hammond (66 Cal, $3.50, ana there is likewise
no important distinction in fact. The main
difference is that in the Hammond case Hinton
was appointed to succeed Hammond, while
here Menzies was appointed after the declared
removal OF Gunst. But Gas the mere appoint
ment of a successor would, per Sc, be removal
of the prior incumbent lex parte Heenan, l3
Pet, 261; Blake VS.. United States, 1O3 u S.,
+tNv,h aa
while the present case cannot be distinguished
in principle from that of Hammond, it is earn
estly insisted that the court erred in that de-
cision, and in others III which the interpreta-
ton of the Hammond case is adopted and fol-
lowed
The claim made is that the Governor has the
power to remove and appoint the Police Com
missioners at pleasure, and it is insisted that
this claim finds support in sections and 16
OF article Xxx of the constitution, together with
section S75 of the Political Code. By the Ham,
mond case it was decided that no term of Office
of Police Commissioner was fixed by the Nc
Coppin act; that no authority was given to
the appointing power after making the origi-
nal appointments, except to fill vacancies, and
that the Governor could not appoint iii the
absence of a vacancy or create and fill
vacancy by appointing some one to succeed an
1t cannot be assumed that the constitutional
and code provisions, upon which appellant re-
lies,swere overlooked by the court in deciding
that and kindred cases. An examination Of
their records discloses not only that they were
cited in the briefs of counsel and in the peti.
ton for rehearing, but that the claim of the
power of the Governor to appoint at pleasure
was strongly pressed upon the attention of the
court.
But as has been intimated People VS.. Ham.
mond is not a solitary case among the de-
cisions of this court. 1t has formed the basis
of other judicial determinations and its prin-
oiples, both in department and in bank, have
been repeatedly affirmed.
In People VS.. Pond, 80 CAL, 140, sections
and 16 of article XXX of the constitution were
cited to the court in bank and it is said:
."The questions argued by counsel for petit
TONERS are not new. They may not have been
presented so forcibly or with as great perspi-
Guilty as before, but they have been determined
adversely to the contention OF the petitioners,
after careful consideration of the constitu-
tional and statutory provisions germane to
the subject, and we feel constrained to adhere
to the construction heretofore adopted The
been elected as members of the first Board of
Supervisors, has been settled adversely to
them in the decisions in Desmond VS.. Dunn, So
Cal. 24S and 249, and People VS.. Board of
Election Commissioners, IL West Coast Rep,
1885, and the claim of the others by the de-
eisions in Staude VS.. Board of Election Com
missioners, 81 Cal, 313; Heinlen vs. Sullivan
"a Cal, 378, and People VS.. Hammond, 66
"The effect which a decision overrulingIthese
cases would have upon municipal proceedings
for over ten years past is so apparent that it is
unnecessary for us to point out the reason why
we should adhere to the decisions referred to-
at least so far as the Board OF Supervisors are
concerned-even though we should believe
that they were based upon erroneous con-
struction of the provisions involved; and al
though the rule applies with less force to the
case of the Police Commissioners no good rea-
son has been shown why the decisions hereto
fore rendered should be departed from. If the
principle is wrong or the system works unsat-
isfactorily the remedy remains with the peo-
ple
In People VS.. Edwards (93 CAL, 1851 the
power of the Governor to appoint Fire Com
mission was under consideration. The circum-
stances were substantially the same as in the
Hammond case, the present constitution there
as in the Hammond case having abolished the
original appointing power. The court said:
Questions involving the same principle as
those under discussion were decided in People
VS.. Hammond, So Cal, 654. Under the act of
April 1, 1878, the responder in that case and
Lid ha Pcli Cor, is