The San Francisco call., 1896-10-21
Supreme Court Hands Down a
Decision Sustaining His
Position.
RIGHTS OF THE SUPERVISORS.
The Board Held to Be a Municipal
Body Within the Meaning
of the Statutes.

LOS. ANGELES, CAL, Oct. 20.-The Su-
preme Court handed down decision here
to-day in the case of Charles 8. Young,
appellant, against Madison Babcock, re-
spondent. an appeal from final judgment
in favor of the defendant upon sustaining
a demurrer to the complaint of the relator.
The chief points IN the decision are cpl.
tomized thus:
Andrew ]. Moulder, the duly elected, quali-
ned and acting Superintendent of Schools for
the City and County of San Francisco, died on
the 14th day of October, 1895, whereby
the Office became vacant. On November A,
1898, the Plaintiff, Charles S. Young, was by
the Board of Supervisors appointed to fill the
vacancy caused by the death of BIoulder. The
said Charles S. Young thereupon qualified,
took the oath of Office and filed his bond as
such School Superintendent. Defendant Bab-
cock claims to be the Superintendent in and
for the City and County of San Francisco. and
since November 4, 1895, has usurped and in
truded himself into said Office to the exclusion
OF the said Charles S. Young, who, on Novem-
Der q, 1885. demanded TO be let into losses
sion OF said Office. which was refused by Bah
cock. PlSintif demands judgment.
First-That defendant Baocock is not enti-
tied to the said office and that he be excluded
therefroln.
0eCuuQ-1ldt CnarleS .. Young is eQrlLleQ 10
said office and that he be admitted to the pos
session and enjoyment thereof.
Ine sole question in this appeal is as TO the
authority OF the Board OF Supervisors of the
City and County of San Francisco to appoint
superintendent OF Schools OF said City and
County to fill the vacancy caused by the dealt
OF Andrew ]. Moulder. The act of April 1886,
usually known as the consolidation act," pro-
yides for the election in the City and County
OF San Francisco of a Board of Supervisors,
composed OF twelve mem bers; of Board OF
many other officers and superintendent OF
Common Schools. Section 81 OF the act pro-
vides:
"In case of a vacancy in the office of School
Superintendent the Board of Education may
assemble and appoint person to fill the va
caney until the regular election next follow
ing"
Section 8 OF an act to authorize the Board of
Supervisors OF the City and County of San
Francisco to fill vacancies which might occur
in the elective offices of said City and County
% when no other provision was made by law to
plication to the vacancy in the Office of Super
intendent of Schools, for the reason that other
provisions was made therefor.
in reference 10 the Board of Educa lion of the
City and County OF San Francisco, but retain
ing the provision for filing vacancies in the
office OF school superintendent by the Board of
Education. The power thus conferred upon
the Board OF Education by The consolidation
act" and the amendments thereto, which con-
San Francisco. is still vested in that body,
unless wresled fr0n it by the act of March IA,
1883, entitled can act to establish uniform
system OF county and township governments"
or by several county government acts since
passed. Have they? Section i, article Ky, of
the constitution OF 1879 provides that .'the
several counties as they now exist are hereby
declared legal subdivision of this State"
Section 2, article TX, is as follows:
"a Superintendent of Schools for each
county shall be elected by the qualified cleo
tors thereof at each general election, provided
that the Legislature may authorize two or
more counties to unite and elect one Superin-
tendent OF the counties so uniting"
This section makes the Superintendent of
Schools county officer. Under the consolida-
iion act and the various amendments there
existed, prior to the adoption of our codes, in
the City and County of San Francisco Super
lntendent OF Schools. Subdivision 2l of sec
ton % of the act of 1885 provides "that the
Board OF Supervisors in the several counties
shall have the power to fill by appointment
by appointment OF said board and elective
county or township offices, except in those of
Judge OF the Superior Court aud Supervisors;
the appointee to hold office for the unexpired
term"
The question of the status, power, duties and
duration OF the terms of Office OF the several
officers of the City aud County of San Francisco
has recently been considered in the case of
julius Kahn VS.. Adolph Sutro eft al.
Conclusions: San Francisco is both city and
county. Some of its officers are city officers
anu oGneTS are county OLncerS. 30 fdr as the SUI
pervisors are concerned the members OF the
court are united in the opinion that they are
officers and not county officers
within the purview OF the county government
act. We are of opinion that the power to fill
given to Boards of Supervisors by
the county government act applies to the
Board OF Supervisors in and for the several
counties OF the State other than the City and
County of San Francisco; and that as to the
latter the power 70 fill vacancies in office
comes from the consolidation act" and does
not include vacancies in the Office of Superin-
tendent OF Public Schools, which are filed by
the Board OF Education. 1t follows that the
judgment appealed from should be affirmed,
aud we so recommend.