In re Bulger

California Supreme Court Jul 1, 1873 No. No. 3,608Published

Before: Belcher

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Holding. The court held that the Legislature has the authority to create municipal offices and dictate the method of appointment, including delegating appointment power to voluntary, unincorporated associations. The court further held that such appointments remain valid even if the association's membership changes or includes non-citizens.

Issues

Whether the Legislature has the power to abridge the term of a municipal office it created.
Whether an unincorporated association may validly appoint a municipal officer under legislative authority.
Whether the Legislature may authorize non-citizens to participate in the appointment of a municipal officer.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The Legislature created the office, and it had full power to abolish or to change it, or to extend or abridge the terms of its incumbents at its pleasure.”

Synopsis

Office Created by the Legislature.—The Legislature can abolish or change an office created by it, and it may extend or abridge the terms of its incumbents at pleasure.

Construction of Statute.—If it appears from the language of an amendatory Act, and of the Act which is amended, that by the words “ Board of Underwriters,” used in the former, the Legislature meant “ Board of Fire Underwriters,” the Court will construe it as intended. Appointment to Office.—The Legislature may confer the power of electing a Fire Commissioner in a city upon a Board of Fire Underwriters, which is a voluntary association of persons and not a corporation.

Idem.—A change in the membership of such association does not take away its power of appointment, and the appointment may be made by a majority vote. Power of Appointment to Office.—The Constitution does not prohibit the Legislature from conferring on a voluntary association of persons who are not citizens of the United States or electors of the city, the power to elect a person to fill an office created by the Legislature.

By the Court, Belcher, J.: In March, 1866, an Act was passed by the Legislature to establish a Paid Fire Department for the City and County of San Francisco (Stats, 1865-6, p. 138), by which it was provided, among other things, that there should be a Board of Fire Commissioners of the city, consisting of five persons, two of whom were to be “ appointed by the association known as the Board of Fire Underwriters of the City and County of San Francisco.” In March, 1870, an amendatory Act was passed (Stats. 1869-70, p. 303), by which the Legislature appointed three persons to act as Fire Commissioners, and authorized the Governor to appoint the other two. It then provides that “ the offices of Commissioners elected or appointed heretofore by the Board of Underwriters are hereby declared vacant.” It further provided that in the event of a vacancy occurring for any cause in the office of a Commissioner the Board of Supervisors of the city and county should declare the office of such Commissioner vacant [556]and then appoint a suitable person to fill such vacancy until the next ensuing general election. Under this last provision the appellant Bulger was appointed by the Board of Supervisors in March, 1872, to fill a vacancy which had occurred in the office of one of the Fire Commissioners. In April, 1872, another Amendatory Act was passed by the Legislature (Stats. 1871-2, p. 855), by which it was provided, among other things, that “the Fire Commissioner who was appointed- by the Board of Supervisors of said city and county, on the 6th day of March, 1872, shall hold office until the 1st day of December, 1872; and prior to said first Monday in December, 1872, and every four years thereafter, the Board of Underwriters of said city shall appoint one Fire Commissioner, who shall hold office for the term of four years from the first Monday in December next succeeding his appointment.”

In pursuance of the supposed authority of this Act the respondent Merrill, in August, 1872, was appointed a Fire Commissioner by the Board of Fire Underwriters of the City of San Francisco, and afterwards, in November, he was appointed to the same office by the Board of Marine Underwriters of that city. When the Act was passed, and thereafter, up to the commencement of this action, there was no Board of Underwriters in the City and County of San Francisco, except the Board of Fire and Marine Underwriters, by which the respondent was appointed. These Boards were voluntary associations, composed of the officers and agents of sixteen fire and fourteen marine insurance companies, doing business in the City and County of Ban Francisco. Of the fire companies, five were incorporated under the laws of this State, three in other States of the United States, and eight in foreign countries. The agents of four of the companies were changed after the passage of the Act and before the appointment of the respondent, and the newly appointed agents became members of the associa

In re Bulger

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