85 Cal. 408 | Cal. | 1890
Lead Opinion
Action for a writ of mandate to the board of trustees and others, above mentioned, to compel them to levy a special tax to raise a sum of money to pay the salaries of policemen, etc. Judgment was rendered for the petitioners, and the respondent appealed.
The city of Sacramento is a municipal corporation, organized in 1863, under an act of the legislature. (Stats. 1863, pp. 415 et seq.) The board of trustees is, under that act, the governing body of the corporation. (Stats. 1863, sec. 2, p. 416), and by it the board was invested with power to create and establish a city police, to prescribe their duties and compensation, and to provide for the regulation and government of the same; to
The contention here made on behalf of appellants is, that the act of 1889 amending section 6 of the act of 1872 is unconstitutional and void, and hence it imposed no obligation on the board of trustees to proceed to levy a tax under it. It is said that the act is special, and. forbidden by section 25 of article 4 of the constitution of 1879. There can be no doubt that the act of 1889 is a special law. It relates to a special board of trustees of one particular' city, and a particular class of men to be appointed by this special board to perform the duties of their office in the one city above mentioned. Is it forbidden by the constitution? Among other cases in which the legislature is forbidden to pass special laws is the following: “Creating offices, or prescribing the powers and duties of officers, in counties, cities and counties, townships, election or school districts.” (Const., art. 4, sec. 25, subd. 28.) Conceding, as is contended, that a police-officer is an officer of the state, and not of the municipality in which he exercises his office, it does not follow that the provision above quoted does not apply to them. We think it applies to all officers who are appointed to exercise their duties in either of the particular political divisions above mentioned. It is not limited to officers of such political divisions, but embraces officers in such divisions. This interpretation gives to the language of the clause its usual and ordinary meaning, which is the true rule where the words are not employed in any technical or peculiar sense.
It is urged that “ the act complained of here [referring to the act of 1889] is not an act creating offices, within the meaning of subdivision 28 of section 25 of article 4 of the constitution. It merely gave the city permission to have more policemen than she had before, if it was deemed necessary for the protection and good government of the city. To say that such a permission is the creation of offices implies a misconception of the meaning of the term ‘creating offices.’ This has been ruled against appellants’ contention in Ford v. Board, 81 Cal. 19.” In that case there was no reference in either opinion to the clause of the constitution referred to. The act under consideration did not require it. No point was there made that the act was a special act, or that it was, as such, inhibited by any provision of the constitution. Section 2521 of the Political Code, as amended in 1883, was there considered, which provided that the board of state harbor commissioners must, on entering on the duties of their office, appoint the following officers, viz.: “A secretary, an assistant secretary, an attorney, a chief engineer, a chief wharfinger, and such number of wharf
Why is not the power to create an office a legislative power? Of course no reference is made here to offices created by the constitution. But as to all other offices, how can they be created other than by an act of the legislature? If the legislature cannot create offices, why the restriction on its power in subdivision 28, section 25, article 4, of the constitution? Why is the legislature forbidden to create the offices embraced in the subdivision cited, by special or local laws, if they cannot do it in the exercise of the power granted it by the constitution by a general law ? There are other provisions of the constitution which show that the creation of an office is to be accomplished by legislative action. (See Const., art. 20, secs. 4,16.) The sections cited are meaningless, unless the creation of office is a legislative function. The legislature, having created the office by statute, may vest the appointment to such office in such individual or officer or board as it may think proper. (Art. 20, sec. 4.) As in the case before us, the legislature, by the act of 1889, created the office of policeman, including captain of police, to exercise their office in the city of Sacramento, and vested the appointment of these officers in the board of police commissioners of that city.
Further, if the legislature cannot create an office by special act it certainly cannot accomplish the same thing through a special act which vests the power to appoint
Paterson, J., concurred.
Beatty, 0. J., dissented.
Sharpstein, J., and McFarland, J., concurred in the judgment.
Concurrence Opinion
We concur in the judgment, on the ground that, by providing that additional policemen might be appointed by the city authorities, the legislature attempted to do indirectly, by a special statute, what it was forbidden to do directly by subdivision 28 of section 25 of article 4 of the constitution. I do not understand, however, that this point is decided against the appellant in Ford v. Board, 81 Cal. 19. We do not wish to be understood as holding that the legislature may not amend a special charter of a city, such as the city of Sacramento is acting under, by a special statute, except where, as in this case, the law enacted is forbidden by the constitution for other reasons.