People ex rel. Travers v. Freese

The Court. This is an action in the nature of quo warranto to oust the defendant from the office of pilot commissioner for the ports of San Francisco, Benicia, and Mare Island, and to instate the relator therein.

The defendant was nominated by Governor Bartlett and confirmed by the senate in January, 1887. In February following he duly qualified, and has ever since continued to discharge the duties of the office.

On September 28,1887, Governor Waterman, who had in the mean time succeeded Governor Bartlett, issued to the relator a commission appointing him to the office, “vice A. C. Freese, removed.”

The relator, Travers, therewith qualified, and on the 3d of October, 1887, presented to the board of pilot commissioners, defendant being present, his commission from the governor, and demanded that he be let into the possession and enjoyment of the office in place of the defendant. Members of the board, defendant included, refused to recognize the relator as a pilot commissioner, or to let him into possession or enjoyment of the office.

The legislature has not been in session at any time since the appointment of the relator. '

Section 368 of the Political Code provides: “The following executive officers are appointed by the governor with the consent of the senate: 1. The inspector of gas [635]meters.....2. Directors of the insane asylum..... 3. Pilot commissioners.” Section 369 of the Political Code provides: “The officers enumerated in the first subdivision of the last section hold their offices for the term of two years; those in the second subdivision, for the term of four years; and those in the third subdivision, during the governor’s pleasure.” Section 2440 of of the Political Code provides: “ There must be appointed by the governor, by and with the advice of the senate, three experienced and competent ship-masters or nautical men .... [as] a board of pilot commissioners for the ports of San. Francisco, Mare Island, and Benicia.” Section 2442 provides: “The commissioners hold their offices during the pleasure of the power appointing them, not exceeding four years from the date of their commissions.”

Undei' section 369, the governor may remove a pilot commissioner at his pleasure, but under section 2442 such commissioner can be removed only by the joint act of the governor and the senate; for where an appointment is made by the chief executive by and with the advice or consent of the senate, the former alone is not the “appointing power.” (People v. Cazneau, 20 Cal. 507;. People v. Tilton, 37 Cal. 619.) Sections 368 and 2440 of the Political Code agree that the appointment of pilot commissioner must be by the governor, by and with the consent or advice of the senate; but the question for solution here is, whether such commissioners hold their offices “during the governor’s pleasure,” as provided in section 369, or “ during the pleasure of the power appointing them,” as provided in section 2442. Which of these two sections shall control? Section 369 is found in part 3, title 1, article 2, of the Political Code. This part of the code provides for the government of the state. Title 1 provides for “the mode of election and appointment and term of office of civil executive officers.” It consists of seven chapters, treating of the classification of