THE PEOPLE ex rel. STEWART MENZIES, Appellant, v. M. A. GUNST, Respondent, 110 Cal. 447

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. 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.

But while the present case cannot be distinguished in principle from that of Hammond, it is earnestly insisted that the court erred in that decision and in others in which the

interpretation of the Hammond case is adopted and followed. The claim made is that the governor has the power to remove and appoint the police commissioners at pleasure, and it is insisted that this claim finds support in sections 4 and 16 of

article XX of the constitution, together with

section 875 of the Political Code. By the Hammond case it was decided that no term of office of police commissioner was fixed by the Mc-Coppin act; that no authority was given to the appointing power after making the original appointments, •except to fill vacancies, and that the governor could not appoint in the absence of a vacancy, or create and fill a -vacancy by appointing some one to succeed an incumbent. It cannot be assumed that the constitutional and code provisions upon which appellant relies were overlooked by the court in deciding that and kindred cases.

An •examination of their records discloses not only that they were cited in the briefs of counsel, and in the petition "for rehearing, but that the claim of the power of the governor to appoint at pleasure was strongly pressed upon the attention of the court. But, as has been intimated, People v. Hammond, supra, is not a solitary case among the decisions of this court. It has formed the basis of other judicial determinations and its principles, both in Department and Bank have been repeatedly affirmed. In People v. Pond, 89 Cal. 140, sections 4 and 16 of

article XX of the constitution were cited to the court in Bank, and it is said: - “ The questions argued by counsel for petitioners are not new. They may not have been presented so'forcibly or with as great perspicuity before, but they have been • determined adversely to. the contentions of the petitioners, after careful consideration of the constitutional and ‘statutory provisions germane to the subject, and we feel -constrained to adhere to the construction heretofore adopted.

The contention of petitioners, who claim te have been elected as members'of the first board of super.visors, has been settled adversely, to them by the decisions in Desmond v. Dunn, 55 Cal. 248, 249, and People v. Board of Election Commrs., 2 West Coast Rep. 366, 3 Pac. Rep. 412, and the claim of the others by the decisions in Staude v. Board of Election Commrs., 61 Cal. 313, Heinlen v. Sullivan, 64 Cal. 378, and People v. Hammond, supra.

" The effect which a decision ovérruling -those cases would have upon municipal proceedings for -over ten years past is so apparent that it is unnecessary .for us to point out the reason why we should adhere to-■the decisions referred to—at least so far as "the board of supervisors is concerned—even though wé should believe that they were based upon an erroneous construction of the provisions involved.

And, although the-rule applies with less force to the case of the police commissioners, no good reason has been shown why the-decisions heretofore rendered should be. departed from". -If the principle is wrong, of the system works unsatisfactorily, the- remedy remains with the people.” " . In People v. Edwards, 93 Cal. 153, the power of the governor to appoint a fire commissioner was under consideration. The circumstances were substantially the same as in People v. Hammond, supra, the present constitution there, as in the Hammond case, having abolished the original appointing power.

The court said: “ Questions involving the same principles as those under discussion were decided in People v. Hammond, supra. Under the act of April 1, 1878, the respondent in that case, and two others, were appointed by certain district court judges named in the act police commissioners for the city and county of San Francisco. By the constitution of 1879 the judges of the court named were superseded, but the powers given to them by the apt referred to were not vested in any other person or tribunal. It was claimed by the relator in that case, as it is by the relator here, that under

section 8,

article V, and

section 16,

article XX, of the constitution, the office became vacant at the expiration of four years from the date of the defendant’s appointment, and that the governor had the power to fill such vacancy. These contentions did not receive the sanction of the court; it was held that there was no vacancy which the governor was authorized to fill.

Unless that case is to be overthrown, it is an authoritative adjudication against the claim of the relator herein, and entitles the defendant to hold the office until his successor has been appointed or elected, and has qualified, or until the office has been abolished by the power which created it. It would be sufficient to rest the decision herein upon a reference to that and other cases involving similar questions. - ... It is claimed that

section 16 of

article XX of the constitution makes it unlawful to occupy an office created by the legislature for a longer period than four years. The

section provides, ‘when the term of any officer or commissioner is not provided for in this constitution, the term of such officer or commissioner may be declared by law; .... but in no case shall such term exceed four years.’ This question, also, was passed upon in People v. Hammond, supra, and requires no further notice.” In People v. Newman, 96 Cal. 605, the Hammond case being again cited and discussed, it is said: “This contention was fully presented by eminent counsel in People v. Hammond, supra, and a petition for rehearing was filed and denied.

After such consideration and determination by the court, we think the point should be treated as finally settled.” It is thus apparent that the principle of the Hammond case has not only been reaffirmed, but has formed the basis of judicial determinations involving the existence and mode of filling other offices. As was said in People v. Pond, supra: “ The effect which a decision overruling these cases would have upon municipal proceedings for over ten years past is so apparent that it is unnecessary for us to point out the reasons why we should adhere to the decision referred to.” And to quote People v.

Freese, 83 Cal. 453: “We see no good reason why the rule of stare decisis should not govern this case; and, looking ahead, we see good reasons why it should. It is not a matter of much importance who should temporarily have the office struggled for here. But it is a matter of considerable importance, in order to avoid uncertainty and disorder in the future, that those exercising power in the premises may have a settled rule to go by.” The judgment appealed from is affirmed. Temple, J., Van Fleet, J., Harrison, J., McFarland, J., Garoutte, J., and Beatty, C. J., concurred. Rehearing denied.