55 Cal. 242 | Cal. | 1880
Lead Opinion
The plaintiff alleges that on the 1st day of J une-, 1880, he presented to the defendant, who then was, and still is, the
The act in question is commonly known as the “ McClure Charter,” and it will be so designated in this opinion. Although there is but one section of that charter which purports to be in force at this time, we shall base our decision upon grounds which will apply to the entire act. If § 5 is unconstitutional or inoperative, it is so by reason of the whole act being so.
The first question which we shall consider is this : If the McClure Charter be constitutional, can it have any force or effect within a municipal corporation which was incorporated prior to the adoption of the Constitution, until a majority of the electors of such corporation vote to accept or organize under it ? Section 6 of art. xi provides that “ cities and towns heretofore organized or incorporated may become organized under general laws whenever a majority of the electors voting at a general election shall so determine, and shall organize in conformity therewith; and cities or towns heretofore or hereafter organized, and all charters thereof framed or adopted by authority of this Constitution, shall be subject to and controlled by general laws.” Both of these clauses plainly refer to charters which may be framed by authority of the present Constitution, and the latter clause is expressly limited to charters so framed. Neither applies to charters which existed before the adoption of the present Constitution. All such charters must remain in force until superseded or changed in the mode prescribed "by the Constitution.
As these two clauses are the only ones which expressly refer to cities which had charters before and at the time of the adoption of the Constitution, and as many of the other provisions of the Constitution unmistakably refer to charters to be framed or adopted after the adoption of the Constitution, it is clearly our duty, upon well-established principles of construction, to hold that any general provisions which seem to conflict with these special provisions, were intended to apply to charters framed subsequently to the adoption of the Constitution. (Dwarris on Statutes, 765; Cooley’s Const. Lim. 63; Commonwealth v. The Council of Montrose, 52 Pa. St. 391; Wise v. Button, 25 Wis. 109.)
To the foregoing views, one objection is raised, which is not wholly devoid of plausibility. It is, that the cities mentioned in § 6 arc corporations other' than consolidated cities and counties, and that, therefore, the provisions of that section do not apply to the City and County of San Francisco. It seems to us, however, that there is a clause in § 7 which wholly obviates
Our first conclusion, therefore, is, that the McClure Charter, if constitutional, cannot take effect as to the corporation known as the City and County of San Francisco, until a majority of the electors of said corporation, voting at a general election, shall so determine.
On the argument, it was insisted that the consequence of this would be to leave said city and county without any government after the first of next month. This suggestion would be entitled to some weight if the language of the Constitution on this point were so ambiguous as to leave room for doubt as to the intention of its framers. In the absence of any such doubt, however, our decision upon the proper construction of the Constitution cannot be influenced by what may be the consequences of a proper construction. But there is no ground for any alarm. Impliedly the Constitution provides that cities, incorporated previously to its adoption, shall continue to exist under their existing acts of incorporation, until a majority of the electors determine to be organized under general laws, or frame a charter for their own government. The argument that the existing charter must cease after the first of next month, because it is inconsistent with the clause of § 7 of the Constitution, which provides, that
The conclusion at which we have arrived is, that the act of incorporation of the City and County of San Francisco, commonly known as “ The Consolidation Act,” is within the first, and not within the last clause of § 1 of the Schedule to the
But it is claimed on behalf of the defendant that the act is unconstitutional. The importance of having that question de-. termined is not wholly obviated by the conclusion above ainnounced. Is the act known as “ The McClure Charter ” a general law, or does it fall within the definition of “ general laws,” as that term is used in the Constitution? By the terms of the act itself, it is limited in its operation to consolidated cities and counties of more than 100,000 population. Any city and county government of more than 100,000 population heretofore merged, consolidated, incorporated, and organized, or which may hereafter become so, must be organized, incorporated, and governed by and under “ The McClure Charter,” if it be constitutional. Does this act fulfill the requirement of § 7, art, xi, of the Constitution, that such consolidated governments “ may be incorporated under general laws providing for the incorporation and organization of corporations for municipal purposes ” ? Is this a general law, “ providing for the incorporation and organization of corporations for municipal purposes ” ? It does not purport to be. By its very terms, it excludes from its operation all “ corporations for municipal purpose's,” except those which may be composed of cities and counties, merged or consolidated into one government. That this is in direct contravention of the Constitution does not admit of any doubt; and for the purpose of arriving at the intention of the framers of the instrument, §§ 6 and 7 of art. xi must be read together. The former provides that “ corporations for municipal purposes shall not be created by special laws; but the Legislature, by general laws, shall provide for the incorpo
The obvious meaning of the first two clauses of § 7 is, that the city and county governments may be merged and consolidated into one municipal government, and may be incorporated under general laws providing for the incorporation and organization of corporations for municipal purposes. All the provisions of the Constitution applicable to cities are applicable to such consolidated governments; and all the provisions applicable to counties, which are not inconsistent with the provisions of the Constitution applicable to cities, or prohibited to them, arc likewise applicable to such consolidated governments. This evidently contemplates the enactment of general laws providing for the incorporation and organization of all corporations for municipal purposes, and not for the incorporation and organization of some corporations for municipal purposes. And city and county governments, when merged, etc., may not be incorporated under general laws providing for the incorporation of consolidated city and county governments, for municipal purposes, but under general laws providing for the incorporation and organization of all corporations for municipal purposes. How far this act falls short of that requirement can be seen at a glance. (84 Ill. 590; 83 id. 585; 82 id. 472.)
It is urged that the Legislature had the power to classify cities and towns in proportion to population, and that the laws enacted for the government of any one class would be general. But we look in vain in this act, and our attention has not been directed to any other, for the classification of cities and towns in proportion to population. That classification cannot be made on any other basis than that of population. And for the purposes of classification no distinction can be made between a corporation consisting of a simple city and one consisting of a city and county merged into one government, if the population in each is the same. Therefore, the act, Avhich expressly applies to the latter only, does not apply to a class, and is not general, even in the sense contended for.
The act under consideration is not only limited to municipal
With these provisions before us, it would be manifestly absurd to hold that a consolidated city and county could be incorporated under a “ general law,” that a city of equal population could not be incorporated under for “ municipal purposes.”
But if the Constitution sanctioned a classification, by which municipal corporations, formed by the consolidation of cities and counties, might be classified separately from those not consolidated, this does not attempt to classify the former, nor is it general as to them. It applies exclusively to corporations of that character, which have a population of more than one hundred thousand. Those having a less population are altogether left out; so that this act does not provide, first, for the incorporation of all corporations for municipal purposes; nor, second, for the incorporation of all cities and towns; nor, third, for the incorporation of all city and county governments, which have been or may hereafter become merged and consolidated into one municipal government.
From which it is apparent that this act is repugnant to. the rule, which requires that any general law must be as broad as the subject-matter to which it relates. This is not broad enough to cover all municipal corporations, nor even those consisting of cities and counties merged and consolidated into one municipal government.
Some cases have been cited to show that a law which applies to a particular class of things is sufficiently general to meet the requirements of the Constitution. But this act only applies to a part of a class under the classification authorized by the Con
Having arrived at the conclusion that the entire act is unconstitutional, it is unnecessary to examine particular sections of it for the purpose of determining whether some of them would not be, even if the act generally were otherwise.
It follows that the alternative writ of mandamus issued in this case must be dismissed, and it is so ordered.
McKinstry, J., Thornton, J., and McKee, J., concurred.
Concurrence Opinion
I concur in the judgment, and in the views expressed in the opinion written by Mr. Justice Sharpstein, save as to the conclusion reached in the latter part of the opinion, that the entire act is unconstitutional; as to that, I express no opinion. In regard to the other points referred to in the opinion, I think that the Constitution, directly in two instances, impliedly in one, has placed before the people of the City and County of San Francisco, three courses, either of which may be pursued, viz:
1. They may, under § 8, article xi, (as has been done) elect fifteen freeholders to frame a charter; such charter when framed to be submitted to the people, and if ratified, to be submitted to the Legislature, for its approval or rejection as a whole, without amendment. If ratified and approved, it will supersede any existing charter.
2. If the Legislature has or shall pass a general law providing for the incorporation, organization, and classification, in proportion to population, of cities and towns, they (the people of the City and County of San Francisco) may determine to become organized under such general law whenever a majority,of the electors, voting at a general election, shall express their wish to do so.
3. By non-action—that is, by failing to pursue to the end either of the courses above indicated—they may retain and act under their present charter, (known as the Consolidation Act)*254 except' as to such parts as are in conflict with the Constitution,. viz., method of street improvements and the like.
[Morrison, C. J., and Boss, J., were not present at the argument, and did not participate in the decision.]
