The San Francisco call., 1905-04-22
KAHN ARGUES
FOR WHITMAN
Counsel Cites Authorities
to Show Police Board Had
No Right to Try Chief
QUOTES CITY CHARTER
Congressman Contends That
Charter Limits Right of
Trial by the Commission

lIldl ny UuC CUlll1llIooIOII
Judge Hunt has taken under advise
ment the question as to the legal
method that must be pursued by ex-
Chief of Police George w. Whitman to
secure a review by the courts of the
proceedings taken before the Board Of
Police Commissioners that resulted in
his dismissal from his position.
A demurrer interposed by the City
Attorney to Wittman's petition for
writ of mandamus was argued yester-
day morning. Judge Hunt ordered
counsel to submit points and authori-
ties in support Of their various con-
tentions, the time allowed being f1f-
teen days. This means that perhaps
month will pass before a decision on
this point will be reached. An inter-
ested audience listened to the argu-
ment, among those taking notes being
the new Police Commissioner. OGrady.
and Attorney Fabius Finch. formerly
connected with the law offices of A.
Ruef.
When the case was called for ar
gument Assistant City Attorney Bro
beck made the point that the ex-Chief
was improperly proceeding to attain
his end. Quo warranto proceedings to
determine title to the office. or pro-
ceedings in certiorari looking to the
review and annulment of the proceed
ings taken by the Police Commission
ers, he said, would be the proper course
for Whitman to pursue. He asked that
the demurrer interposed on behalf of
the commission be sustained.
MANDAMUS is PROPER.
Congressman julius Kahn. who rep
resents Whitman, differed in his view.
however, and cited authorities by the
score supporting his contention that
mandamus is the only and proper rem
edy in the case at bar. He said the
City and County Attorney had rea-
soned from the standpoint that title to
the office in question was to be deter
mined, while no such contention had
been urged by the petitioner. The at
torney continued as follows:
1t is our contention that The title is al
ready determined; that Mr.. Whitman has been
he was Illegally removed prior to the expira
tion OF his term Not only do we maintain
that th.., he . was not given fair and impartial
offense he may have been guilty of, though
We know he has committed none, the Police
commission has no power TO try him and an
Inspection of the charter will sustain US In
our position
Chapter of article of the charter. de-
mssioners. confers no authority upon the
Board OF Police Commissioners to try the
it The charter says that the Police a pepart
ment shall consist of a Board of Police Com
mssioners. Chief of Police. to be appointed
TO serve four years. officers and patrolmen
to be appointed under civil service provisions
ard clerks.
RIGHT OF TRIAL LIMITED.
It is expressly given the power to try for
offenses. real or alleged. only those members
behavior The Chief of Police is in himself
a unit of the department whose term in office
commission. The commission has no more
right to try him than 1t would have to try
Of its own members.
Now, another point. The charter strictly
provides that no man shall become a member
OF the police force itself as distinguished from
of Police who is under 81 30 years
OF age. When the late Chief Sullivan was
appointed this question arose. but it de-
he was ~ years of age he was eligible to
appointment as he did not come within the
of members admitted under the civil service
rules.
Nor does the office come under that pro-
vision OF the charter providing for promotion
OF members for II Il had Mr.. Dinan could
never have been made Chief of Police and the
ofnce would have gone to Captain spillane.
the senior officer Of his rank Every pro-
vision of the charter relating to the police
force considers the office of Chief Of Police
the members of which the commission has
the right Of trial. 1t Is contention that
the Board OF Police Commissioners had no
right to try Mr.. Whitman and that when it
took this authority TO itself 1t acted illegally
and dismissed him afer a partial and man
ifestly Illegal and unfair trial.
A LOS ANGELES CASE.
Our contention that mandamus is a proper
proceeding to be taken to restore Mr.. Witt
man to the office he occupied was sustained
this month by the Supreme Court in the case
OF Davenport against Los Angeles. Mr.. Daven-
port was removed from office under the re
calr' provision of the charter Of that city,
but the Supreme Court held that as he was
arpointed for a fixed term of office the right
of removal did not vest in the City Council
that tried him. The court ordered him re-
stored TO his office
All Of the text book writer's are unanimous
in the opinion that mandamus is the proper
remedy to the restoration of to
Office that has been Illegally removed. We
will admit that II Mr.. Whitman had never
held the office and sought to get 1t after ap-
rointment from one that refused to yield 1t
fhe only course for to follow would be to
Institute an action in quo warranto. This
is not the condition here however and We
shall stand by the course we are pursuing.
In the event that Judge Hunt de-
cides that a writ shall issue the entire
case will be revived by the court. and
then If IT is found that Whitman was
removed. through the result of a con-
spiracy, as is commonly charged. his
restoration to Office will be peremDto-
rily ordered