Beatty, C. J., and Works, J., Concurring. We concur. The defendant is an executive board, created by law, and charged with the care and improvement of the water-front of San Francisco. It has control of certain wharves, docks, slips, etc., and collects wharfage, tolls, and other charges for the use thereof. It was first organized under the act to “provide for the improvement and protection of the wharves, docks, and water-front of [32]the city and county of San Francisco,” approved April 24, 1863. (Stats. 1863, p. 406.)
. From time to time this act has been amended and supplemented. It was carried into the Political. Code upon its adoption in 1872, and has since been remodeled at different sessions of the legislature.
From the establishment of the board down to the year 1883 the commissioners were authorized to appoint wharfingers and toll collectors; the provision concerning these employees in the last amendment of the Polihical Code previous to 1883 being as follows: “Said commissioners shall also appoint a sufficient number of persons wharfingers to collect the revenue arising from, dockage, cranage, rents, and tolls by authority of this article, and may also appoint a sufficient number of persons toll collectors to collect the tolls authorized by this article.” (Pol. Code, sec. 2522, amendments of 1876.)
In 1883 the Political Code was so amended as to effect a complete reorganization of the board, and the provisions relating to wharfingers and collectors were radically changed.
By section 2521, it was enacted that “the board [the new board] on entering on the duties of their office, must appoint the following officers, viz., a secretary, an assistant secretary, an attorney, a chief engineer, a chief wharfinger, and such number of wharfingers and collectors as they deem necessary. Such officers shall hold for a term of four years from the dates of their respective appointments, but may be removed by the board at any time, after due investigation, for causes affecting their official character or competency. The order for such removal, stating distinctly the causes therefor, must be entered on their minutes. In case of a vacancy in such offices by the expiration of a term, or for any other cause, the board must fill the same by an appointment for four years.”
[33]By section 2522, prescribing the duties of the various officers, it was provided that “the wharfingers shall have supervision of the wharves to which they are assigned, and must require the regulations of the board and orders of the chief wharfinger to be respected and obeyed, and good order to be preserved thereon. The collectors must collect the revenues in such manner as the board may direct, and must daily account for and pay all moneys into the office. The wharfingers and collectors must each take and subscribe an official oath, and give such official bond as the board may require. .... All the above-named officers must perform such other duties pertaining to their positions as the board may from time to time prescribe.”
Section 2250 provides for the salaries of officers, and fixes that of the wharfingers at $125, and that of collectors at. $100 per month.
Under this amended and revised statute, the present board was organized, and on the 9th of June, 1887, the plaintiff was appointed a collector.
Recently the board has decided to introduce some changes in their system of collecting revenues, which render the services of some of its collectors unnecessary, and for that reason alone they have undertaken to remove the plaintiff from his position, and to abolish his office. There is no charge against him affecting his official character or competency, but he has, by resolution of the board, after notice of its intention so to do, been removed in the interest of economy in the administration of its business. No person has been appointed to succeed him, and there is no intention to make such appointment. On the contrary, the office, so far as the board has the power to abolish it, is abolished.
The plaintiff, claiming to be an officer with a fixed term and stated salary, has instituted this original proceeding by mandamus to compel the defendant to pay him the salary accrued since the date of its order deelar[34]ing hi's removal. It is admitted that his salary since that date has not been paid; that the defendant has funds to pay; and that it is its plain statutory duty to pay if the plaintiff is, notwithstanding its order of removal, still a collector. It is further admitted that the plaintiff has no other plain, speedy, or adequate remedy, and, in short, that, if the defendant had no power to abolish the collectorship held by the plaintiff, he is entitled to a peremptory writ.
Had the defendant such power?
If section 2521, as re-enacted in 1883-, is constitutional and valid, we do not see how it can be so construed as to allow the removal of the collector, except for one of the causes enumerated, nor how the board could in such case refuse to fill the vacancy thereby created by a new appointment for a term of four years, however useless the services of such collector may have become. The result of this construction seems to be absurd, and it may well be supposed that it was not actually contemplated by the legislature; but in seeking the intent of the law-makers, we must be guided by the terms of -the law, if they are plain and unambiguous, and we cannot, even for the purpose of avoiding serious inconvenience, adopt a construction in conflict with the obvious effect of the language of a statute.
We discover no ambiguity here. On the contrary, the legislature has plainly said that the board of harbor commissioners, on entering on the duties of their office, shall appoint a secretary and certain other named officers, and also as many wharfingers and collectors as they deem necessary. These latter, like the rest, are to be officers with prescribed duties, a fixed term of four years, and stated salaries. They are to take the oath of office and furnish bonds, and are to be irremovable during the term for which they are appointed, except after notice and hearing upon charges 'affecting their official character and competency.
[35]Moreover, for each wharfinger or collector appointed an office is created,—a collectorship orwharfingership which thereafter continues in permanence, and must be filled for a full term of four years, whenever it becomes vacant by expiration of a term, or for any other cause. It may be created—a hundred or a thousand collectorships or wharfingerships may be created—by the board, but not one can be abolished. The highest number created at any time is for all future time the minimum number of said offices until the legislature shall intervene and abolish so many as it may deem to be superfluous. It matters not how clearly it may be demonstrated that under a new and improved system of administration the services of many or most of these officers could be profitably dispensed with, the board which created the offices cannot abolish them, but must go on in the old way until the legislature comes to its relief.
We cannot, we repeat, see any way to avoid this conclusion, if section 2521 is in all respects constitutional and valid.
Counsel for defendant have referred us to a provision contained in an independent statute- passed in 1880 (Stats. 1880, p. 10), and also contained in section 2524 of the Political Code, which they contend modifies the construction or changes the operation of section 2521; but we do not think this contention can be maintained The provision in question is one which, in substance, empowers the board to fix its revenue upon a basis which will admit of the abolition of tolls, and directs the commissioners thereupon to abolish tolls, and discharge the toll collectors. But this provision existed, not only in the statutes, but in the Political Code before the revision of 1883, and referred exclusively to the tolls collected from wagons and other vehicles passing to and from the wharves and slips. It had no reference to the wharfingers or to the charges collected by them for dock-age, etc. By the revision of 1883 the collectors therein [36]provided for were charged with the collection of the entire revenue of the board, including that part formerly collected by the wharfingers; in other words, the collectors under the new law differ from the toll collectors under the old law, not only in name, but in function; and the collectors cannot be discharged as provided in the statute of 1880, and the corresponding provisions of section 2524 with respect to the toll collectors, without discharging the only persons who, under the new system, have anything to do with the collection of the revenue of the board. This being so, the mere fact that, in reenacting section 2524 in 1887 and 1889 for the purpose of amending it in other particulars, this old and obsolete clause referring to the toll collectors was re-enacted, will not justify us in holding that the legislature intended thereby to alter or modify the operation of the provisions of section 2521 respecting the term and tenure of the collectors.
But satisfied as we are that under the statute, considered by itself, the defendant has no power to remove the plaintiff upon the ground assigned for their action, we are nevertheless not satisfied that his position can be sustained.
If the appointment of each collector by the board creates an office which can only be abolished by law, then the act of the board in making the appointment, and thus creating the office, has all the force and effect of a statute, and we are brought to the inquiry whether the legislature can in this way delegate to a board of three persons the power to make laws creating offices to be filled by officers holding for the full constitutional term of four years, with salaries payable out of the public revenues, and irremovable during the term prescribed.
It is settled, we suppose, beyond controversy that the power delegated to the legislature to make laws cannot be delegated by the legislature to any subordinate body; [37]and if the power to be exercised by the board of harbor commissioners under the provisions of section 2521, according to the construction which the plaintiff contends for, and which we are unable to deny, amounts in effect to the law-making power, it follows that such provisions must be unconstitutional.
We think that the creation of an office with permanent tenure, and salary payable out of the public revenues, which must continue to exist until abolished by statute, can only be accomplished by the exercise of a power essentially legislative,—a power which the legislature alone possesses under the constitution, and which cannot be delegated.
We do not question the power of the legislature to authorize an executive board, such as the harbor commissioners, to appoint persons to fill offices which have been created by law, nor its power to give to such appointees a permanent tenure of their office within constitutional limits. Nor do we deny the validity of a provision which protects subordinate employees in public institutions from arbitrary removal from their positions in order to make room for others. We merely hold that the legislature cannot commit to the discretion of others the important function of creating public offices in unlimited or indefinite number,—offices which the power creating them is incompetent to abolish.
Rehearing denied.