61 Cal. 313 | Cal. | 1882
Lead Opinion
The question-in this case is whether, by virtue of the Act of the Legislature approved March 7, 1881, and commonly known as the-“Hartson Act,” an election of the elective officers of the City and County of San Francisco is required to be held at the general election to occur in November of the present year.
That the Legislature intended the provisions of the Act to apply to San Francisco is not denied. Indeed, it could not be successfully denied, for it provides in terms for the election of all elective county, city and county, and township officers, with certain enumerated exceptions; and we know, judicially, that San Francisco is the only “ city and county” within the State. The position of the respondents, however, is that the Consolidation Act of that city and county, which provides that the elections therein shall be held in the odd-numbered years, is unaffected by the provisions of the Act in question. And this, it is said, because of the provisions of the Constitution.
By Section 6 of Article xi. of that instrument it is provided that “ corporations for municipal purposes shall not be created by special laws; but the legislature, by general laws, shall provide for the incorporation, organization and classification, in proportion to population, of cities and towns, which laws may be altered, amended or repealed.” This provision is clearly prospective. But the framers of the Constitution, recognizing the fact that there were municipal corporations
The framers of the instrument meant something when they inserted this language in it, and we are not at liberty to hold that they did not mean what they said. Giving, as they did, to all cities and towns, and cities and counties, the right to organize under a general act of incorporation, which the Legislature was directed to pass, or to continue their existence under their existing charters, as they might elect, they nevertheless said that whichever course should he pursued, such cities and towns, and cities and counties, should be subject to and controlled by general laws—such general laws as should be passed by the Legislature other than those for the
It is unnecessary here to speak of the further provision contained in Section 8 of Article xi., giving to any city containing a population of more than one hundred thousand inhabitants authority to frame a charter for its own government, consistent with and subject to the Constitution and laws of this State, by causing a Board of fifteen freeholders to be elected to prepare and propose a charter, etc.
With respect to the offices of Police Commissioners and Chief of Police, we are of opinion that the doctrine of the case of People v. Provines, 34 Cal. 520, establishes the validity
The objection urged to the Act is that the judicial officers of the State could not he charged with the duties or powers prescribed, because of the Third Article of the then existing Constitution, which was in these words: “ The powers of the government of the State of California shall be divided into three separate departments—the Legislative, the Executive, and Judicial—and no person charged with the exercise of powers properly belonging to one of these departments shall exercise any functions appertaining to either of the others except in the cases hereinafter expressly directed or permitted.”
In People v. Provines, the Court reviewed all of the cases in this Court in which this Article of the Constitution was under consideration, from and including Burgoyne’s Case in the fifth to and including Sanderson’s in the thirtieth of California Reports, “for the double purpose,” as expressed by the Court, “of ascertaining precisely what has been said in relation to the present question, and of stating our conclusions in relation to the soundness of each case, in order that there may be, hereafter, no doubt as to which are to be regarded as law, and which not.” And the conclusion of the Court in Provines’ Case was, that the departments of which the Constitution speaks, “ and in respect to which it provides that no person employed in one shall be employed in ■ either of the other two, are the Departments of the State Government, as expressly defined and limited in the Constitution; and its meaning is, that no member of the Legislative Department, as there defined, shall at the same time he a member of the Executive or Judicial Departments, as there defined, and vice
As thus expounded, it is obvious that the powers conferred and duties imposed on the District Judges'by the Act of April 1, 1878, did not come within the constitutional inhibition. This exposition of the Constitution by the highest Court in existence under it, and acted on by the Legislature, should be accepted by us in regard to laws so passed, without regard to our own views in respect to the correctness or incorrectness of the doctrine. It results that the Police Commissioners and Chief of Police are not elective officers.
Demurrer overruled.
Thornton, J., and Morrison, C. J., concurred.
McKee, J., concurred in the judgment.
Concurrence Opinion
In dissenting from the judgments of the Court in Barton v. Kalloch, 56 Cal. 95, and Wood v. Election Commissioners,
Dissenting Opinion
I dissent. I think, for reasons set forth in the opinions which I delivered in Desmond v. Dunn, 55 Cal. 242, and Wood v. Election Commissioners, 58 Cal. 561, and in the dissenting opinion of Mr. Justice McKinstry in Donahue v. Graham, 10 P. C. L. J. 37, that the Act commonly known as “the Hartson Act” neither amends nor repeals that clause of the Act of incorporation of the City and County of San Francisco which fixes the times of holding elections for the election of officers of said city and county.
1. Because it does not purport to amend or repeal any provision of said Act of incorporation, but on the contrary, purports to be an amendment of a section of the Political Code which has no reference whatever to said municipal corporation. And, “it is a principle of very extensive operation that statutes of a general nature do not repeal by implication charters and special acts passed for the benefit of particular municipalities.” (1 Dillon on Municipal Corporations, Sec. 87; Stonington S. Bank v. Davis, 1 McCarter, 286; State ex rel. v. The Governor, 1 Dutch. 331; State v. Clarke, 1 id. 54; State v. Branin, 3 Zab. 484; Walworth Co. v. Whitewater, 17 Wis. 193; Janesville v. Markoe, 18 Wis. 350.)
2. The Political Code expressly declares that nothing in it affects any Act consolidating cities and counties, or acts
3. The last clause of Section 6 of Article xi. of the Constitution, which is mainly relied upon to support the contention that the Hartson Act applies to the City and County of San Francisco, does not, in my judgment, lend any support to that position. For the clause immediately preceding it in the same section provides that “ cities and towns heretofore organized or incorporated may become organized under such general laws whenever a majority of the electors voting at a general election shall so determine.” Now the Constitution declares that the Legislature, by general laws, shall provide for the incorporation of cities and towns, but that such general laws shall not apply to cities and towns organized before the adoption of the Constitution, unless a majority of the electors voting at a general election should so determine, and yet it is insisted that a charter of a city incorporated before the adoption of the Constitution may be changed by a general Act, which purports to be an amendment of another general Act which has no reference to any city or city and county. It must be admitted, I think, that if the Legislature had passed a general law for the incorporation of cities and cities and counties, and had inserted in it a provision that elections for municipal officers should be held on the day specified in the Hartson Act for holding elections, it would not apply to the City and County of San Francisco until a majority of the voters, voting at a general election, should so determine. And yet it would be a general law which would take immediate effect in all cities or cities and counties organized after the adoption of the Constitution. It is therefore clear to my mind that when the Constitution declares that cities organized before its adoption shall be subject to and controlled by general laws, it means as to matters not specially provided for in charters which existed at the date of the adoption of the
But, as before remarked, these questions have been quite fully discussed in the opinions to which I have referred, and no useful purpose could be subserved by going over the same ground at this time.
McKinstry, J., concurred.
