The San Francisco call. [volume] (San Francisco [Calif.]) 1895-1913, 1898-10-18
CONCuRRNG OPINION.


l have not concerned myself In the
consideration of the question as to
whether or not Fitch is a proper party
to inaugurate this proceeding My
conclusion rests upon the broad prop
osftion that the act is unsound legis-
lation and should be so declared
When this case was here some time
ago upon preliminary proceeding, I
had occasion to investigate the law
bearing upon it, and gave my views
In few words as to the proper con-
struction of the statute under which
this proposition is based. (Iorton VS..
Broderick, 11S Cal, 487) At that time
l thought that the charge was essen
italy criminal, and, being so, no law
could stand which punished innocent
office holders because some other Of
fee holders may have been guilty of
malfeasance in office. Upon such
construction the law impressed me as
violative of fundamental principles
and necessarily unconstitutional. The
time intervening since that decision
was rendered has only served to more
firmly convince me of the soundness
OF the views | then expressed.
AS a civil proceeding, the judgment
rendered can only stand upon the the
DRY that the act of the Legislature
upon which the proceeding was based
is in the nature of an act fixing the
tenure of Office of the various public
officers of the State, whose duties un-
der this statute demand the fixing of
water rates in the month of February
of each year. Such a construction of
the statute cannot be assented to for
moment. 1t is not an act purport-
ing TO fix or regulate the term of Of
hce, but, rather, an act to punish GER
tain public officers for violation of Of
flcial duty by depriving them of the
remaining portion Of their terms of Of
nee There is an express provision IN
law declaring the official term of these
officers to be two years. Constituting
this act as tenure of Office act would
place it in direct opposition to this
express declaration of the law. This
statute was enacted under express
authority and direction of that pro-
vision OF the constitution of the State
winch declared that the Legislature
may prescribe penalties for a failure
upon the part of Boards of Superyts-
ors 10 Tx water rates in the month Of
February. How can 1t now be held
that the Legislature, in pursuance of
such authority, granted by the consti-
tuition, passed an act fixing the tenure
of office of the Supervisors of the
State? If such be the character and
purpose of the act, it is neither au..
thorized nor in line with this author
ity granted by the constitution.
The fair, reasonable and proper con-
struction OF the act is that the Legis-
lature. in pursuance of the authority
and direction of the constitution. pre-
scribed a penalty for failure of the
Supervisors to fix water rates at re-
moval from office. This act would
have been no more criminal in charac-
ter If the Legislature had prescribed
the penalty for failure to fix the rates
at imprisonment in the County Jan
for six months, or at g. fine of $500. 1t
must be conceded by every one that
the judgment of removal from office Is
penalty. Yet all must recognize the
fact that a penalty is but a punish
ment inflicted upon a wrongdoer. A
party wholly guiltless cannot be made
to suffer penalty. And, If this removal
from office is a punishment to be in
hicted upon an officer for non-perform-
ance of official duty, then this act is
certainly not one pertaining to the ten
ure of office.
The Legislature has the power to fix
the tenure of Office of the various
county and municipal officers, and in
the exercise of such power may de-
clare the expiration of the term to
take place upon the happening of some
future event, which may or may not
happen; but, If such event does hap
pen, the office-holder goes out of office
because his term of office has expired
under the law. His term has expired
as absolutely as though the day fixed
for its expiration had been known at
all times. But there is no semblance
of penalty suffered by the office-holder
in such a case; no punishment is in
fiicted upon him. In other words, If
the removal from office attaches as a
penalty to the office-holder, the act au-
thorizing the removal can in no sense
be treated as an act relating to the
tenure of office. Again, there is moth
ing in the act In any way indicating
that it was the purpose of the Legis-
lature to legiSlate as to the tenure of
Office of members of the Boards of
Supervisors of the State. To the con-
trary, every paragraph and almost
every line of the act indicates that the
Legislature intended by it's provisions
to punish Supervisors by removal from
office for failure to fix water rates in
the month of February. The phrase
guilty of malfeasance in Office" and
upon conviction found in the act
are not harmless, innocent terms, and
would be found in ne act dealing with
tenure of office. The attention of the
court has been called to no act in this
State or elsewhere of general similar