People ex rel. Attorney General v. Hill

Murray, C. J., delivered the opinion of the Court—Burnett, J., concurring.

Two propositions are involved in this case : First, the authority of the appointing power to remove an officer, when the term of the office is not fixed by law; and, Second, the constitutionality of the act consolidating the city and county governments of San Francisco.

The Constitution of this State, section 7, Article XI., provides, “ when the duration of any office is not provided for by this Constitution, it may be declared by law, and if not so declared, it shall be held during the pleasure of the authority making the appointment; nor shall the duration of any office, not fixed by this Constitution, ever exceed four years.”

By a reference to lexicographers, it will be found that the word “duration” signifies “extent,” “limit,” or “time.” When therefore, the time of holding is not fixed, the tenure of the office is at the pleasure of the appointing power. This power of removal cannot be divested or taken away, except by limiting the term.

A law which provides that an officer may be removed in a certain way, or for a certain cause, does not restrain or limit the power of removal to the cause or manner so indicated. The power to remove is an incident to the power to appoint, as a general proposition, and is made so expressly by the Constitution.

The only way in which this power of removal can be limited is by first fixing the duration or term of office, and then providing the mode, if deemed necessary, by which the officer may be removed during the term. A law which simply provides that a party shall not be removed, except in a given case, where the duration of the office is not declared, would, in our opinion, be unconstitutional.

[103]Having disposed of the first point, we will proceed to consider the question of the constitutionality of the act. In this connection it may be remarked, that if some of the provisions of the bill are unconstitutional, this will not vitiate the whole act, unless they enter so entirely into the scope and design of the law, that it would be impossible to maintain it, without such obnoxious provisions.

It is not our intention to examine the various provisions of this act, to reconcile its apparent incongruities, or to point out those particular provisions that may be obnoxious to constitutional objections, but simply to detemine whether, as a whole, it can be maintained. In this respect, we see no good reason for pronouncing the act void.