People ex rel. Hinton v. Hammond (1885) · DecisionDepot

People ex rel. Hinton v. Hammond

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Apr 27, 1885 No. No. 9,799Published

Before: Myrick, Sharpstein

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Holding. The court held that no vacancy existed in the office of police commissioner that would authorize the governor to make an appointment, as the incumbent continues to hold office until a successor is duly elected and qualified.

Issues

Whether the office of police commissioner became vacant upon the expiration of a four-year term, thereby authorizing the governor to appoint a successor.
Whether the governor possesses the constitutional authority to fill a vacancy in a local office where no specific vacancy has occurred under the law.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Such being the case, there is not such a vacancy as is contemplated by the constitution, and the relator is not entitled to hold the office.”

“Nothing is better settled by the decisions of this court) than that there is no vacancy in an office, so long as the person elected or appointed to fill it continues to discharge the duties pertaining to it.”

Synopsis

Police Commissioners of San Francisco—Term of Office—Vacanct—Appointment bt Governor—Constitutional Construction.—Under the act of April 1, 1878, the respondent and two others were appointed by the district judges named in the act, police commissioners of the city and county of San Francisco. No term of office was fixed by the act. By the constitution of 1879, the district courts were abolished, and a new judicial system established, with no specific provision for the exercise of the powers imposed upon the judges of the district court by the act of 1878. On August 1, 1884, the relator was appointed by the governor to the office of police commissioner in place of the respondent, and instituted this action to try his title under the appointment. Held, that he was not entitled to the office.

Opinion — Myrick

Myrick, J. Under the act of April 1, 1878 (Statutes 1877, -8, p. 879), the respondent and two others were appointed by the district judges named in the act, police commissioners for the city and county of San Francisco. Ho term of office was fixed in the act, nor was any authority given to the judges, after making the appointments, except to fill vacancies. By the constitution of 1879, the judges of the district courts were superseded under the new judicial system, but the powers above stated were not vested in any person or body.

On the 1st day of August, 1884, the relator received from the governor an appointment to the office of commissioner, in place of the respondent, and this proceeding is for the purpose of having his right to the office adjudicated. '

It is not denied that the act of April 1, 1878, constituted a pprtion of the charter of the city and county of San Francisco at the time the constitution of 1879 went into effect. It is claimed by the relator that under section 16 of article XX, and section 8 of article v, of the constitution, the office of police commissioner became and continued vacant on and after four years from the date of respondent’s appointment, and that the governor had power to fill such vacancy, and did fill it by the appointment of the relator.

It has been held by this court, that under the constitution the charter of the city and county of San Francisco remains in force, until changed in the manner provided for in the constitution, except in such parts as conflict with the provisions of the constitution. By section 16, article xx., supra, it is made the duty of the legislature to declare by law the term of any officer or commissioner, when the term is not provided for in the constitution. By the same instrument it is made the duty of [656]the legislature to provide for the election or appointment, in the several counties, of various officers, and to provide, by general laws, for a system of county governments. In obedience to this requirement, the legislature has, so far as it may, made such provision (act of March 13, 1883, entitled, “ an act for the organization, incorporation, and government of municipal corporations”), which act assumes to make provision for the selection of police commissioners; and it now rests with the people of the city and county to determine by their votes whether :

People ex rel. Hinton v. Hammond

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Synopsis

Opinion — Myrick

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Concurrence — Sharpstein

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