The San Francisco call., 1898-07-01
IF BARNES
 GOES 10 WAR Will He Still Hold His Municipal Office MANY QUESTIONS OF LAW MAY REST WITH THE BOARD
 OF SUPERVISORS. A Puzzle of Legal Questions Which Is Exciting Considerable Con-
 troversy About the City
 Hall.
MAY REST WITH THE BOARD
 OF SUPERVISORS.

Now that District Attorney Barnes has accepted a commission as captain of Company c, Eighth Regiment, the matter has given rise to much spec ulation as to whether he will still have the privilege of holding his of flee of District Attorney, or if it will be necessary for him to vacate this to turn soldier.
 The law on the matter Is a very compli- cated one, and when City and County At torney CresWell was asked about the mat ter yesterday he was unable to give an opinion, as questions of constitutional law are involved which require hours of care full study and research.
 "If," he says, "the question were one of State or county appointments the matter would simply resolve itself into the question as to which body the appointment was subordinate to. One Is a Federal and the other a county ap- pointment, and as the duties of the two positions in no way conflict it brings
 Section 20, article 4, of the State con- stitution says: No person holding any lu- crative office under the United States or any other power shall be eligible to any civil office of profit under the State.' This settles the question so far as any person holding a Federal office is concerned, but does not directly bear on man holding a county office and about to accept a Federal appointment.
 'The Political Code, however seems to leave the whole matter in the hands of the Board of Supervisors. It provides that if an officer leave the State for term exceeding sixty days his office shall be de- clared vacant and a successor appointed. In case of sickness, however, or an urgent call from the State the Supervisors have the power of granting such extension of time as they may see fit. Whether un- go on as usual is question which, in all proba ability, would rest with the Super vsors. but as long as MT. Barnes holds the office. whether he is engaged In the performance of his duties or away on a leave of absence, he seems entitled to send in a bill for salary.
 "A case of this kind occurred in New York some years ago. The Assistant City Recorder was elected to the State Legis- lature, and as this kept him in Albany a great portion of the time it was impos- sible for him to attend to his duties in New York City. When his term of office expired he sent in a full bill for services, which the city government refused to pay on the ground that he had 9 failed lied to per was brought into the courts and he re- ceived a favorable decision, the Judge holding that, as his office had not been declared vacant, he was entitled to re- muneration for the full term. This case seems parallel with that of MT. Barnes, in case he should be called out of the State for military duty and neither re- signed nor was busted by the Supervis- orS."
 A fair construction of the section of the constitution above quoted, however, not wthstanding the observations of Mir. Creswell-which are not to be understood as expressing his opinion on the law of the matter-would seem to indicate that District Attorney Barnes cannot hold the offices of captain and District Attorney at the same time. A commission in the army is a Federal office and MT. Barnes present office is a position under the State. District attorneys are county offl- cers, and are created by the county gov- ernment act, being purely creation of the State. The moment, therefore, MT. pany c the Board of Supervisors may de- clare his present office vacant and under the consolidation act or county govern ment act appoint his successor Both these statutes authorize them to make the appointment. sa