The San Francisco call., 1896-04-01
Police Commission Documents
Not in the County Clerks
Office.
ATTORNEY WIRTs SUGGESTION
His Attack on Tobin and Alvord Now
With Attorney.General
Fitzgerald.

n. S. Writ. the attorney, who recently
attacked the validity of the appointment
OF Police Com missioners Tobin and Alvord,
undertook last Monday to inform the
Attorney-Geperal of California upon the
facts forming the foundation for q claim
! that these two officials nave no legal right
to hold their office. In presenting the
facts Writ sent the following letter to the
States attorney:
San FRANCISCO, Cal, March 80 1896.
Hon y. F. Fitzgerald, Attorney General, State
Governor OF this State has referred the whole
matter pertaining to the appointment of Police
commissioners for the City and County OF San
FRANCISCO Tor your legal opinion, in such case
made and provided, it ought to be my duty,
under the circumstances, to render you an
epltome OF the information which has been
Opta1ned from the records and other sources.
Two OF the incum bents in office-Robert J.
Tobin and William Alvord-were appointed by
the District Judges in April, 1873, and each of
them failed and neglected TO file his oath of
once until May 5, 1885, which the book of
original entries of official oaths fully shows in
the County Clerks Office OF this City and
county IN the due and regular course Of entry
required for all official oaths
Neither OF said official oaths, which are
CURED to be filed, can be found in that Office,
and they are missing from the usual box kept
Tor that purpose No one has the right to take
| the filed records away. The case of Hinton vs.
hammond was decided just about that time
The entire business is for future reflection and
action.
1t is provided by ections 9O7 and 9O9 of the
Poht1cal Code that the oath of Office must be
taken subscribed and filed in any case before
the expiration of fifteen days from the COM
mencement OF his term of office, and duly filed
In the Office OF the County Clerk. This being
true, their office was, is now and ever has been
vacant.
Section 996 of said code thus provides San
once becomes vacant on the happening OF
n tnl1f 1ntAr rho
plration of the term: !. The death of the in
cumbent. 2. His resignation. g..
HIS refusal or neglect to file his official oath or
Dond within the time prescribed"
III he failed to do these things according to
law, and within the time required by law, the
| Off ce was vacant"
Hull vs. Superior Court, So Cal, 176.
Inc legal opinion which you are to render
whatever may be the final result, hopes are
entertained that it will be based on reason
| and the best authority, and when all is re-
| judged by the community, you can conscien-
| ttously consider that you duly performed and
truly executed en- important duty in your
| Yours respectfully, Ms. WRIT,
| Attorney-at-law, Supreme Court building.
Said Writ yesterday:
In my judgment the whole question about
| the Police Commissioners has been sort of q
| compound double-complex combination. A
| the constitution is the supreme law They be-
| lieve that there should be no life tenure in
| such offices, and that there should be no per-
petuity in such offices, and that it is against
| therSplrlt and policy OF free and republican
| form OF government.
Blackstone lays down the doctrine of the
| Kings perpetuity in Office which, while he
| lives in his natural capacity, is called his
Kingship or imperial dignity.
| 1t seems that the Supreme Court of this State
| in deciding all OF the late cases never had
| its attention called to section 8 of article XI
| OF the constitution, which thus provides: .The
| compensation OF any county, city or municipal
\ of Ch q ha 1Yonr sod fta. .a1l
| ton or during his term of office: nor shall the
| term OF any such officer be exter ded beyond
| the period for which he is elected orappointed."
This provision controls and puts limitation
upon all provisions OF the statute and all de-
| clslons not bearing upon and giving a con-
stTucton to this constitutional provision.
/ The Supreme Court in very late case has de-
| cided that there are other vacancies besides
| those mentioned in section 996 of the Political
Code. and which case was fully and ably ar
| gued by whole array of promine 1t counselorS
| at law. 1t is well known that we cite too
many authorities before the courts when have
| no real application in principle, and that the
| best jurists admonish and do advise that two
| or three leading cases which contain the prin-
| c1Dle involved in the case in question at issue
are far better than volumes which have no real
| actual application and add no weight to the
principle involved in the and no author
| ity for adjudication. The petition sent to the
| Governor OF this State was prepared with care,
and he acted upon it according to the constitll-
ton and referred it to the Attorney General of
| this State.
| II new commissioners should be appointed
| it is claimed that by section 1885 OF the Code
| OF Civil Procedure they could be seated by
| speedy proceedings by writ of mandamus in
| the Supreme Court of this State. have no
animosity or III will against any one, but sim
| cerely believe that the law should be our rule
and the constitution our guide.
| Police Commissioner Alyord laughed at
| the claims of Writ. ''These things" he
| said, invariably come up about political
| times. l don't know that there is any,
| thing worthy of notice in the matter. I
received my appointment from Governor
| Waterman July IL, 1890. On July u, 1890
| took the official oath, which was recorded
in the County Clerks office July II follow
| ing. / suppose on that date we filed the
oaths, Mr.. Tobin and myself, and then
held a meeting.
| ''There is certainly nothing strange in
| the statement that the oaths were ex-
| tracted from the County Clerks Office We
can't help that. 1t is not our business to
act as custodians OF documents filed in the
| County Clerks Office
| Commissioner Tobin said he had filed his
oath of Office when first appointed, but he
could not remembe the date Long after
ward he was appointed by Governor Wat.
| erman in conformity with a new law. At
| that time the whole commission received
| official appointments from Waterman, to
which were appended the great seal of the
| State. 1t is under these documects that
both Messrs. Tobin and Alvord are now
| holding Office. Commissioner Tobin said
he had secured legal advice upon the oues-
ton and felt satisfied that the appoint
ment was valid. The old appointment
| had no bearing upon the case from the day