The San Francisco call., 1904-08-09
HEALTH BOARDS
POWER DEFINED
Emery's Suit for Reinstate-
ment as It's Secretary Re-
celyes Temporary Setback
POINT AGAINST CHARTER
Judge Sloss Suggests a Con-
flict With Constitution.
Other Cases Are Involved

The attempt Of James A Emery to
induce the Superior Court to reinstate
him as secretary Of the Board Of Health
got a setback yesterday in the ruling
Of Judge Sloss, who sustained the de-
murrer Of the defendants, but gave
Emery leave to amend his complaint
within ten days. The cases OF Drs.
Hartley, Green and Curtis. who were
appointed as sanitary Inspectors, and
Wolfe, appointed to a position at the
County Hospital, all of whom were re-
moved. were submitted at the same
time, and Judge Sloss' opinion applied
to each case.
The opinion of Sloss is important in
that 1t raises the question Of distinc-
tion between office" and "employ-
ment" in the public service, and inti-
mates that the citv charter is in con-
hict with the State constitution in is at
tempt to make appointees Of municipal
boards unremovable except for cause.
The substance Of Judge Sloss' opinion
follows:
This is an application by James A Emery
Ior writ OF mandate to compel the mem
6ers OF the Board OF Health of the city and
County OF San Francisco to restore him to
tho position or office OF secretary OF the Board
OF Health. 1t is alleged that on March %,
1eOl. the Civil Service Commission certified
toner. who had heretofore taken and passed
the civil service examination and that on the
that January .. 1903. the defendants abol.
ished the position Of secretary and created a
new position under the name Of deputy health
otneer. to which they appointed ono Louis
Levy.
It is further alleged that the duties OF
OF secretary and that the defendants. In aboI-
lsnins the ono position and creating the other,
The defendants argue that under the char
ter they had the power to abolish the plain
tiffs office. or employment. and that as this
power has been exercised. the plaintiff cannot
be restored to a position which no longer
exists. But. on the demurrer. the allegations
OF the platntfm as to the circumstances Of the
abolition and its purposes are to be taken as
admitted. 1t has been held In a number of
cases arising under civil service law similar
in its main provisions to that declared In tha
charter that. although there is power to
abolish position. the courts will neverthe-
less, disregard a pretended abolition made In
bad faith and for the purpose of removing or
supPlanting the oocuDant- Any other rule
service provisions of the charter in so far as
they seek to protect the tenure Of employees.
A more serious objection to the application
is raised by the contentious that mandarnus
is not the proper remedy, and that the pro-
vision of the charter giving the plaintiff the
right to hold his position until removed for
cause is in conflict with the constitution Of
the Stata
basis that the place or position occupied by
Emery was office" and that he was an
'.ofnoer II the position in question an
employment. distinguished from an
office, the writ Of mandate could properly
be used to restore plaintifr to such position,
assuming that he was unlawfully excluded
therefrom. And, If It not an office there
is nothing in the constitutional provision above
cited 10 prevent the plaintiffs tenure being
during good behavior.
On the other hand, If Emery was an "ofn-
oer he cannot resort to q writ of mandate
to restore him to the office to which he claims
to be entitled for the reason that the title
to public office will not be determined in man
damus proceedings, but only in quo warranto.
And again II Emery held an office he held
It despite the charter provison) at the pleas
of the board appointing him. This result
follows from the terms Of the constitution
(article Xxx, section 16) above referred to,
which provides that when the term OF any
officer commissioner Is not provided for in
this constitution the term OF such officer or
commissioner may be declared by law, and II
not declared such officer commissioner
shall hold his office as such officer or COM
missioner during the pleasure Of the author
ity making the appointment; but in case
shall such term exceed four years"
law which merely directs that an officer
shall not be removed without Just cause does
not declare the term Of such officer within
the meaning Of the constitution, and he Is ac-
cordingly removable at the pleasure OF the
power appointing him.