The San Francisco call. [volume] (San Francisco [Calif.]) 1895-1913, 1896-01-09
Police Commission Fight
Again in the Supreme
Court.
TO GUST M. A. GUNST.
The Relator Believes the High
Tribunal Has Slipped
Certain Cogs.
POINTS OF HIS PETITION
A Main Contention Is That Important
Constitutional Questions Were
Overlooked.
POINTS OF HIS PETITION

of the case has been prepared for filing in
the Supreme Court. Its main point is
that the decision in People VS.. Hammond
does not apply to this case.
The petition, which is very voluminous,
is signed by Henry N. Clement, of counsel
for the relator, Stewart Menzies, the title
of the case being 1.-The People of the State
of California, by W. F. Fitzgerald, Attor-
ney-General, on the relation of Stewart
Mcnzies, plaintiffs and appellants VS..
Moses Gunst, defendant and respondent"
The petition opens as follows:
The counsel for the relator in this case, Stew
art Menzies, maintains that both he and the
Governor OF the State of California, who ap-
pointed him to the office OF Police Commits
sioner of the City and County of San Francisco,
have Just cause OF grievance (using the word
in its legal and not in its personal sense)
against this high tribunal, by reason OF the
fact that the decision rendered by the court
on the 10Th ult virtually ignored the impor-
tant constitutional questions involved in the
case, which were fully presented by the briefs
of counsel on file; and that the opinion of
Justice Henshaw (Which was concurred in by
the COURT does not conform to the spirit OF
section 2, article VI, OF the organic law of this
State, which requires that 1.-THE grounds OF
the decision "shall be stated"
The relator therefore asks for q rehearing in
bank in order that his case may be fully dis
cusSed upon its merits. and that when deci-
SION Is TSuUGTGu Dg Tue court upon Sucn re-
hearing it may be rendered upon the merits.
All we have asked and all we now ask is that
the court respond to the question::
Did People VS.. Hammond decide that the
right to appoint Police Commissioners was not
given to the Governor by section 4, article
Xxx, of the constitution?
We asser, that the above question was not
raised in People VS.. Hammond, was not con-
tended for in People VS.. Hammond, was not
discussed in People vs. Hammond, and was
not decided in People VS.. Hammond. and that
il has never in any other case that came before
this court been raised, commended for, discussed
or decided.
We therefore ask for hearing before this
court upon the claims of section 4 OF article
XX of the constitu ton, being the true
source from which the Governor OF the State
OF California derives his power to appoint Po-
lice Commissioners. We have not had hear
ing upon il. Having presented its claims as
constitutional provision TO this court, we deem
ourselves entitled to the grounds upon which
the court decides that 1t is not the source of
the Governors power.
1t will not do to put aside constitutional
provision without debate, nor will it do to as
sumo that constitutional provision was con-
sidered in some prior case in which its claims
were not advocated.
We came before this court representing the
executive branch OF the State government of
California advocating the claims of r. constitu-
tiOnal provision upon which is based the exer-
else OF important executive function, and
have asked that IL be interpreted. construed
and applied.
We are answered by decision of the judicial
branch of the State government of California
that it wiz not consider the constitutional
question now presented to it upon the ground
that it will conclusively presume that the ques-
ton had been already adjudicated adversely
TO the executive branch OF the government in
a former case, although, in such former case
the claim OF the constitutional provisions now
relied upon by the executive as the source of
his power was not advocated, was not discussed
and was not even mentioned by the counsel
whose duty it would have been to advocate it,
not the subject of discussion before the
court by either counsel as q factor in deter
mining the constitutional issue before the
court, and was not mentioned, discussed, or in
any way alluded to by the court in rendering
its decision.
If las we claim to have demonstrated) the
questions adjudicated in this case were not
considered by the court In People VS.. Ham
mond how can a series of subsequent deci-
sions following and based upon People VS.
Hammond constitute an adjudication of the
principles contended for in this case?
Justice Henshaw refers to People VS.. Pond
80 Cal, 40; People VS.. Edwards, 93 Cal. 1853;
and People VS.. Newman, SO Cal, 605, as cases
following and based upon the principles of
People VS.. Hammond.
In neither OF the above cases were the pro-
visions of section of article Xxx of the con
stitution upon which we rely in this easel
discussed or brought under view.
These cases are then analysed to prove
the contention, the petitioner thereafter
remarklng:
The comments of Justice Paterson in his
opinion in People VS.. Pond upon the effect
which q decision overruling the former cases
would have upon municipal proceedings in
San Francisco are mere dicta and can have no
bearing upon the case, but lnasmuch as they
were deemed worthy of being twice quoted by
Justice Henshaw in his opinion in this case it
is but just that we should nave the opportunity
OF expressing the sorrow we feel thatWe cannot
in this petition be permitted to show what the
effect has been, and is now, upon municipal
n
to be an discriminating adherence TO the
decision OF the court in People VS.. Hammond
and the failure of the court to distinguish the
pres ent contention from that made IN People
vs.. hammond.
After citing authorities for the court
overruling decision rendered by itself on
an erroneous assumption, the petition con-
cludes:
There is more involved in this case than the
mere question of whether the relator Stewart
Menzles or the respondent, Moses A. Gunst
shall occupy the Office of Police Commissioner
In ordinary cases las remarked by Justice
Mcfarland in People VS.. Freeze "It is not a
matter OF much importance who should tenn
porarily have the Office struggled for": but
in this case the startling claim is made by the
respondent, Gunst (based upon the decision of
this court in People vs.. Hammond that he has
the right to hold the Office eternally, or least
as long as his life shall last and his good be-
haylor continues and that there is no power
on earth to remove him. Under constitu
expressly limits the term OF offices to four years.
the claim of Mr.. Gunst challenges our attention
and we are instinctively led to inquire how
such an anomalous state of affairs could have
been brought about.
A great principal is involved in this case
We have earnestly contended that an impor-
tant provision of the fundamental law upon
which the Chief Executive OF this State bases
his right to exercise the function of appoint
ing Police Commissioner has never been con-
sidered by this court. AS proof OF the fact we
refer the court to the record Of the cases IN
which the question of his power to make such
appointments was at issue, and find that the
constitutional provision upon which he now
bases his right to appoint has never been al
luded TO or mentioned, much less commented
upon, in any case. We have invoked that
constitutional provision (section 4, arIi-
Gle Xxx in this case, and have asked that it be
now considered and construed. The court has
rendered decision in which 1T declines to con-
slider the merits of the executive contention
and insists upon an assumption or inference
that the constitutional provision relied upon
as the course of the Governors power to act
wiz: section 4, article nv, was considered
and construed in the case of People vs. Ham
mond, although it was not cited upon the
point In controversy, its claims were not adj
vocated, and no mention whatever is made of
it in the decision ofthe court.
We respectfully urge that the court has