The San Francisco call., 1907-06-23
Convicted Mayor Fills Vacancy
on the Police Commission
Auditor Horizons Attorney Advises Him
to Honor Gallaghers Signature

him do it; I don't care how many
names are signed to fight permits.
IF Leahy has resigned. and pre-
sumo the newspaper accounts IN ina
connection are correct, he propaoiy Hieo
his resignation with Schmitz. 1 do not
know that the resignation has been
accepted, and 1 believe Leahy had peen
attending to his duties as police COM
missioner up to the time or the last
meeting of the commission. He dld not
file his resignation with me, and nence
I DO not see that could take any ac-
tion unless he had done So If Schmitz
has appointed John L. Moore TO the
vacancy presume that Schmitz acted
within his legal rights"
Upon the decision of tho supreme
court as to whether Schmitz is the
de jure" mayor of the city will depend
the legality of any of his legal acts,
including the appointment of Moore as
police commissioner, or any other ap-
peintment he might make pending the
decision on the point.
MAY E>CoMPLICATIoNs
If the graft prosecution carries out
Its Intentions to compel one of the su-
pervisors to resign to make way for the
appointment of q new mayor, In the
event that Schmitz is declared disqualt-
fed to hold Office owing to his convic-
tion of felony, complications are sure
to ensue.
Should the new mayor appoint an
entirely new batch of commissioners
the city might find itself with two
sets of officials. each attempting to ex-
ercise functions. The commissioners
appointed by Schmitz whose terms have
not expired-and none will expire until
next January-do not intend to give up
their Offices without a legal struggle
and the aid of the courts will probably
be invoked again to determine which
appointees were the "de jure" members
of the various municipal boards and
commissions
An opinion touching on the problem
of the mayorafty was filed with Audi
tor Horton yesterday by his attorney,
Maurice L. Asher, In which the latter
submits number of legal authorities
which will protect the bondsmen of
the auditor for his approval of the
demands against the city which are
signed by James L. Gallagher as acting
mayor. Horton stated that he would
recognize Gallagher as the de facto
mayor. as he considered the authorities
We're sufficient to support him in that
position. Asher's opinion says In part:
Lord Ellenborough's definition of an officer de
facto is lone who has the reputation of being
the officer he assumes to be and yet Is not
good officer in point of law
Chief Justice Buffers definition OF an officer
de facto is lone whose acts, though not those of
lawful officer of the law, upon principles OF
policy and justice will hold valid SO far they
involve the interests of the public and third per-
sons, where the duties OF the office were exer-
cised under color OF known and valid appoint
ment election because there was a want
OF power in the electing appointing body or
by of some defect or irregularfty In its
exercise or under color OF an appointment by or
pursuant to a public unconstitutional law before
the same is adjudged to be SUCH
To constitute person an officer de facto It Is
necessary that he should be in actual possession
OF the office and In the discharge of its duties
MOther authorities were also cited in
support of the auditors intention to
recognize Gallagher as the de facto'
mayor.