People ex rel. Travers v. Freese

McFarland, J. This is an appeal from a judgment of the superior court of the city and county of San Francisco in favor of respondent in a proceeding in the nature of quo warranto, which was instituted to test the right to the office of member of the board of pilot commissioners for the ports of San Francisco, Mare Island, and Benicia. The respondent, Freese, was appointed to said office, by the then governor of the state, in January, 1887, was confirmed by the senate, and, having duly qualified, entered upon the discharge of the duties of the office. Between March 1, 1887, and March 18, 1889, and while the legislature was in session, the present governor nominated the appellant to the senate for the said office; but the senate failed to concur in the said nomination. On March 18, 1889, while the legislature was not in session (and it has not been in session since), the present governor attempted to appoint the appellant to the office, and issued to him a commission, which shows that he was appointed “ vice A. C. Freese removed.” If the question presented here w^ere an open one, it might fairly be said to be a debatable question. The provisions of the code upon the subject are conflicting, and it is somewhat difficult to reconcile them. Whether the occupant of the office holds it during the pleasure of the governor; whether the governor of his own motion can remove him at any time by appointing another in his place; or whether he can so appoint and remove only with the consent of the senate, — these are questions which could be well argued on either side of the controversy. Either side could, no doubt, be strongly stated. But we decline to again enter upon the discussion of these questions. They were thoroughly discussed, and, [455] after mature consideration and consultation, were determined by a majority of this court adversely to the contention of appellant in People v. Freese, 76 Cal. 633, — a case precisely like the one at bar. 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 set- ' tied rule to go by. We therefore adhere to the judgment and opinion in the said case of People v. Freese. The judgment appealed from is affirmed. Paterson, J., Sharpstein, J., Thornton, J., and Beatty, C. J., concurred.