People ex rel. Menzies v. Gunst

Henshaw, J. This is an action in quo warranto to test relator’s title to the office of police commissioner of the city and county of San Francisco, against the claims of defendant thereto. Judgment passed for defendant, and plaintiff appeals.

The facts, about which there is no controversy, are that R. P. Hammond was a member of the original board of police commissioners of the city and county of San Francisco, appointed under the provisions of the act of the legislature approved April 1, 1878, and commonly known as the “ McCoppin act.”

Hammond continued in office until his death, which occurred in the year 1891. At and after the time of his death H. H. Markham was the governor of the state, and he appointed D. M. Burns to fill the vacancy thus arising.

Burns qualified, became, and acted as, a member of the board until January 5, 1895. Upon that day a vacancy occurred in the office by the resignation of said Burns. The governor, Markham, upon said last-named day appointed defendant Gunst to fill this vacant office.

Upon the seventh day of January Gunst qualified, and entered upon the discharge of his duties. Thereafter, on said day, the said Markham was succeeded as governor of the state by James H. Budd.

Upon January 13,1895, Governor Budd gave notice in writing to the said police commission, and to the individual members thereof, including the defendant herein, that he had removed said defendant from office, and he likewise caused formal declaration of removal to be filed in the office of secretary of state.

[451]Upon January 21, 1895, Governor Budd appointed relator herein police commissioner of the city and county of San Francisco, “ vice M. A. Gunst removed.” Menzies duly qualified, and upon Gunst’s refusal to surrender the office this proceeding was instituted.

There is no distinction in principle between the contention of appellant in this case, and that made in People v. Hammond, 66 Cal. 655, and there is likewise no important distinction in fact. The main difference is that in the Hammond case Hinton was appointed to succeed Hammond, while here Menzies was appointed after the declared removal of Gunst. But as “ the mere appointment of a successor would per se be a removal of the prior incumbent ” (Ex parte Hennen, 13 Pet. 261; Blake v. United States, 103 U. S. 237), the distinction becomes immaterial.