People ex rel. Attorney General v. Hill

Murray, C. J., delivered the opinion of the Court—Burnett, J., concurring. Two propositions are involved in this case : First, the authority of the appointing power to remove an officer, when the term of the office is not fixed by law; and, Second, the constitutionality of the act consolidating the city and county governments of San Francisco. The Constitution of this State, section 7, Article XI., provides, “ when the duration of any office is not provided for by this Constitution, it may be declared by law, and if not so declared, it shall be held during the pleasure of the authority making the appointment; nor shall the duration of any office, not fixed by this Constitution, ever exceed four years.” By a reference to lexicographers, it will be found that the word “duration” signifies “extent,” “limit,” or “time.” When therefore, the time of holding is not fixed, the tenure of the office is at the pleasure of the appointing power. This power of removal cannot be divested or taken away, except by limiting the term. A law which provides that an officer may be removed in a certain way, or for a certain cause, does not restrain or limit the power of removal to the cause or manner so indicated. The power to remove is an incident to the power to appoint, as a general proposition, and is made so expressly by the Constitution. The only way in which this power of removal can be limited is by first fixing the duration or term of office, and then providing the mode, if deemed necessary, by which the officer may be removed during the term. A law which simply provides that a party shall not be removed, except in a given case, where the duration of the office is not declared, would, in our opinion, be unconstitutional. [103] Having disposed of the first point, we will proceed to consider the question of the constitutionality of the act. In this connection it may be remarked, that if some of the provisions of the bill are unconstitutional, this will not vitiate the whole act, unless they enter so entirely into the scope and design of the law, that it would be impossible to maintain it, without such obnoxious provisions. It is not our intention to examine the various provisions of this act, to reconcile its apparent incongruities, or to point out those particular provisions that may be obnoxious to constitutional objections, but simply to detemine whether, as a whole, it can be maintained. In this respect, we see no good reason for pronouncing the act void. The arguments are, mainly: First, that the Consitution distinguishes between city and county governments, and that the two cannot be merged; Second, that, in point of fact, there has been no consolidation of the two governments, as appears by the act itself; and, Third, that, by the provisions of the act, the people of San Mateo county are disfranchised. On the first point, it may be said that the Constitution has divided, or made provision for dividing, the State, for political purposes, into counties; and has further provided for the organization of towns, cities, etc., for municipal purposes. There is no constititutional inhibition against incorporating a portion of the inhabitants of a county as a city, or creating a county out of the territory of a city; the very necessity of the case both permits and demands it. And as a city may, by legislative enactment, spring from the body of the county, being the first subdivision of the territory and political power of the State, there is no reason in law why it may not be resolved back to its original elements, or why the power that has called this political being into existence may not again destroy it. There is no limitation on the power of the Legislature in this respect, and economy and convenience may often require that an act incorporating a city should be repealed, and the inhabitants thereof placed in their original situation. It may be well, in this connection, to answer the second objection. The language of the act is somewhat ambiguous, but it was evidently the intention of the Legislature to repeal the act incorporating the city of San Francisco, and to merge the city and county governments into one, as a “ county government,” under the direction of county officers. We come now to an examination of the third point, viz.: that the act disfranchises the citizens of San Mateo county. The first argument in support of this proposition is, that no sufficient provision is made by the act for the election of officers for that county, the election holden under the same having been declared void by this Court. If this were a permanent depriva [104] tion of the political privileges of the citizens of that county, and the law furnished no mode of remedying the evil for years to come, we might pause before we decided to uphold this act. But when we take into consideration that the Legislature did attempt to make provision for an election, and that the result was defeated by carelessness or mistake, and that it is now in session, ready to act upon the matter, it would ill beseem us to pronounce the whole law unconstitutional, for a trifling defect so easily remedied. Again, it is said that the people of San Mateo are disfranchised, because, by the terms of the act, the counties of San Francisco and San Mateo are joined together as an Assembly district. On examination of the Constitution, it will be found that provision is made for “ Assembly districts,” and there is nothing, that we know of, which would limit the power of the Leglature, in joining two counties as a district, for the election of one or more Assemblymen. It would in some cases be but an act of justice, giving to the inhabitants thereby a full representation ; while, on the other hand, it might operate to defeat the choice of one county, by overwhelming it with the majority vote of another. It is not our province, however, to say what the consequences of such a practice might be. It is sufficient that the Legislature possess the power, and they alone are responsible for its exercise. The case of Warren v. The Mayor and Aldermen of Charles-town, 2 G-ray, 84, has been relied on by the appellant, as sustaining the unconstitutionality of this act. An examination of the case, however, will show that the Constitution and laws of the State of Massachusetts differ essentially from those of California, and that the case is not analogous to the one before us. There may be some unconstitutional features in the bill, and some provisions which will tax the ingenuity of counsel and Courts to reconcile, but as a whole, we are satisfied that it is not so vitally defective as to warrant us in pronouncing it unconstitutional. Judgment affirmed.