The morning call. [volume] (San Francisco [Calif.]) 1878-1895, 1895-02-10
MENZIES' CASE SUBMITTED.
A Day of Argument Before Judge
SandersOn.
The Governors Right to Create as Well
as to Fill a Vacancy Under
Discussion.

The quo warranto proceedings of Stewart
MenZies to secure possession of the seat in
the Police Commission now held by Nose
Gunst, has been submitted to Judge San
derson after days argument by counsel.
Quite an array of legal talent was present
in court, and an imposing number of law
books were lined up before Judge Sander
son at 8 80 yesterday morning, and with
only an hours intermission at noon, the
lawyers argued points, submitted authori-
ties and thumbed the law books over and
over again, each striving to establish an
impregnable case. For Mr.. Gunst there
appeared Henry Ach, of Rothschild & Ach,
and Ex-Judge McKinstry. Mr.. Gunst him
self was also present. For Menzies Henry
n. Clement and Walter P. Stradley, of the
firm of Clement, Kline, Cannon & Stradley,
appeared.
Mr.. Stradley opened the argument by
reading the papers in the case and reciting
its history from the beginning. His was
merely a preliminary argument but he
outlined the points which his associate,
Mr.. Clement, wished to make during the
afternoon. Their contention was, he said
that the appointing power was also capa-
bic of removing its appointee, when, as in
this case, the term of the appointee's office
is not fixed by the State law. He quoted
several authorities regarding his position
but left the major portion of the argument
for Menzies' side OF the case until after the
other side had spoken.
Mr.. Ach then opened his side of the case.
His contention was that had Mr.. Ham
mond, whose death caused the vacancy
filled by Burns, survived until the present
day, he would have no stronger hold upon
the office than has Mr.. Gunst, who sue
ceeds him in direct legal sequence The
ha al ,aI l.
power to fill a vacancy, has no legal right
to create one. To allow him to do this
would be to convert his present contingent
power into an absolute power, a state of
affairs entirely repugnant to the present
constitution. 1t aims, he said, more to
circumscribe the executive powers than to
extend them, and to admit that the Gov
ernor has the power OF removal at pleasure
would be to extend his power beyond all
comprehension. Mr.. Ach was also plenti-
fully supplied with authorities and he
submitted goodly number before he gave
way to ex-Judge McKinstry. McKinstry's
argument was in the same line as that sub
mitted by Ach
Mr.. Clement closed the arguments of the
day. He commended, as had his associate,
that the power which appoints NAV re-
move, unless otherwise provided for. No
other provision than this was made by the
constitution, and it was surely more nearly
its spirit that an officer should be removed
at the pleasure of the executive than that
he should hold Office for life. He pointed
to the section of the constitution which
sets it down as general rule that no officer
shall hold Office more than four years;
also to that clause which directs the Gov
ernor to appoint successors in office when
the law provides no other way of rotation.
Mr.. Clement then presented more author
tiles and the case was submitted.
A request made by Mr. Aeh during his
argument was significant. He asked, in
view of the fact that the case goes to the
higher court i'll any event, that Judgment
in favor of Mr.. Gunst be rendered; other
wise, pending the appeal the Judgment as
rendered would govern, and under it both
Mr.. Alvord and Mr.. Tobin might be re-
moved and serious disorder result.