The herald., 1895-01-16
FIIzGERALD's OPINION.
The Governor uas tho Right to Re-

me 0OFdEnOE 4Ab th0 Ahikhp W me-
movs.
SACRAMENTO, Jan. 15.-The following
is the opinion OF Attorney General Fitz-
gerald on which Governor Budd bases
his action in removing M. A. Gunat az
police commissioner
SACRAMENTO, Jan. 10, 1895.
Hon. James II Budd Governor OF the State of
California:
DEAR SIR RE plying to your COM
munication OF this date as to "What is
the power of the governor with refer
ence to the removal of an sppointee on
the board OF police commissioners OF the
city and county of San Francisco, and to
fill by appointment the vacancy caused
by such removal" would respectfully
stGte that the board of police commits
sionsrs of said city and county was Gre.
sted by the act approved April l, 1878.
This act, among other things, provides
that che diatriCt judges therein named
are empowered and required ito choose
three citizepe of said city and county,
housaholders OF good repute, without
respect TO their politics, who, together
with tho chief of police, ahould consti-
tute the board of police commissioners
of said city and county.
"All vacancies phsll be filed by the
aforesaid judges making the appoint
menta."
There is no term of Office prescribed
for these officers by this or 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 other officer, the
question then to be determined ia,
Where does thie power vest?
Section 16 Of Article XX of the con-
stitution provides, that when the term
of any officer or commigeioner is not
provided for in the constitution, the
term of such officer or commissioner
may be declared by law; and if not so
declared, such officer or commissioner
shall hold his position as such officer or
commissioner during the pleasure OF the
authority making the appointment; but
in no caao shall such term exceed four
years"
This section of tae constitution was
construed by the surpreme court OF this
state in the recent case of Higgins VS..
Cole, 100 Cal, 260 "a. in which it was
said: That % the term of Office was
not fixed by the constitution nor de-
clared by law, it must be held that APP
pellant's term continued only during
the pleasure of the appointing power,
and that be was rightly removed"
Upon this subject section 87S OF thu
political code further provides: Every
Office of which the dare ton is not fixed
law, is held at the pies sure of the ap-
pointing power
From this section it will be seen that
the Legislature in emitting to prescribe
the term of office of suah comm issioner,
has left the duration thereof to the
pleasure of the appointing power.
In order then to determine to whom
the power OF appointment vests, in this
instance, the original authority to make
such appointment having been abol-
ished ae stated, VIC must look first to
section OF article X of the constitu-
ton which provides that all officers or
commissioners whose election or APP
pointment is not provided for by this
constitution, and all officers or commits
sioners whose Offices or duties may here
after be created by law. shall be elected
By the people or appointed, as the leg
ialature may direct"
As neither the conatitution nor the
statutes prescrlbes any express mode for
making ouch appointment, the provs-
ions of section 875 Of the political code
must necessarily control. The section
reads as follows
Every officer. tho mode of whose apr
pointment ie not prescribed by the con-
stitution or statntes. must be appointed
by the governor"
In view OF these provisions of the
constitution and the statutes, am of
the opinion that you, as governor, have
ths power to remove IAN appointee on
the board OF police commissioners of the
city and county of San Francisco, and
to fill by appointment the vacancy caused
by euoh removal" Respectfully yours,
w. F. FITZGERALD,
Attorney General.