Barendt v. McCarthy

This is an appeal from a judgment in favor of the defendants. The complaint alleged that Arthur H. Barendt was a member of the board of health of the city and county of San Francisco duly appointed; that the mayor and chief of police of that city and county had, in the absence of the health officer and the members of the board of health, broken into the headquarters of the board and had placed in possession thereof Arthur M. Sharp as a pretended successor of plaintiff and other persons assuming to succeed plaintiff's associates. The complaint further averred that the appointees of the present mayor assumed to hold a meeting as a board of health; that they had organized by electing a president and secretary; and that they pretended to exercise authority over all the departments properly subject to the control of plaintiff and his associates. There was a further averment that defendant P.H. McCarthy claimed a right, as mayor of the city and county of San Francisco, to remove plaintiff from office, and that in the exercise of that asserted authority he had made an order purporting to declare plaintiff's place on the board of health vacated, and to substitute Arthur M. Sharp in his stead. The power and authority of the mayor in the premises was denied and an injunction was prayed restraining defendants from removing or attempting to remove plaintiff from actual posession of his office as a member of the board of health of the city and county of San Francisco.

To this complaint defendants demurred, and thereafter the matter was heard on an order to show cause. At the hearing the following facts appeared by affidavit: On January 28, 1910, Mayor P.H. McCarthy of the city and county of San Francisco, made an order removing Arthur H. Barendt, George B. Somers, William F. Wilson, Thomas W. Huntington, and Joseph E. Cutten, as members of the board of health; immediately notified the board of supervisors of such removal; and furnished said supervisors with a statement of the cause for his action. This statement was entered of record in the proceedings of the said board of supervisors. Among the causes for the removal specified in the statement were acts of plaintiff and his associates in willfully and knowingly appointing to positions in the health department of the said city and county persons not qualified for and not eligible to such positions and willfully and knowingly approving and auditing *Page 683 the salary demands of the said persons." The mayor then made an order appointing Arthur M. Sharp, Germain Pouchan, Frank J. Klimm, Thomas B. Roche, and Dennis J. Murray, members of the board of health, and certificates of appointment were delivered to said appointees. On January 31, 1910, the holders of the certificates from the mayor went to the office of the board of health, presented their credentials to the chief clerk and demanded entry into the meeting room of the board. Finding the door locked, and being informed that the health officer alone had a key, they secured the services of a locksmith who opened the door for them. No member of the board of health as it was constituted prior to January 31, 1910, was present while the members of the new board were gaining entrance to the meeting room. Four days later the complaint herein was filed.