58 Cal. 561 | Cal. | 1881
Lead Opinion
The question which has to be determined in this case is whether the special act of April 2d, 1866, as amended March 7th, 1872, which fixes the times of holding elections for city and county officers of the City and County of San Francisco, is repealed by an amendment of the Political Code approved March 7th, 1881.
It is necesgary in the first place to ascertain and determine the political status of the “ City and County of San Francisco” under the Constitution and laws of this State. Section 1 of article i of the act of April 19th, 1856, commonly known as “ the Consolidation Act,” declares that, “ The corporation, or body politic and corporate, now existing and known as the City of San Francisco, shall remain and continue to be a body politic and corporate, in name and in fact, by the name of the City and County of San Francisco, and by that name shall have perpetual succession, may sue and defend in
Section 6 provides for the election of officers for said city and county, and fixes their terms of office. This section has been repeatedly amended, but the provisions of the preceding-sections have never been changed.
It is as clear as language could make it, that the present “City and County of San Francisco” is a continuation of the late municipal corporation known as the “ City of San Francisco.” Under the Consolidation Act and the acts amendatory thereof, it is nothing more nor less than a municipal corporation, and the question whether a general law affects it or not must be solved by rules which have been established for determining when a general law does or does not apply to a municipal corporation. Ordinarily, a general law, when it relates to a matter concerning which no provision is made in the charter of a municipal corporation or any special act relating exclusively thereto, applies to such corporation the same as to any other political subdivision of the State. But “ 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 Dill. Mun. Corp., § 87.)
Such repeals are not favored. And it has accordingly been held that where the provisions of a city charter and the general law upon the same subject were conflicting and irreconcilable, the provisions of the former were not repealed by the latter. (S. S. Bank v. Davis, 1 McCarter, 286; State v. Minton, 1 Dutch. 529; State v. Clark, id. 54; Walworth Co. v. Whitewater, 17 Wis. 193; Janesville v. Markoe, 18 id. 350; State v. Branin, 3 Zab. 484.) And a clause in the general statute repealing all acts and parts of acts in conflict with it, although sufficiently comprehensive to include any repugnant
It is true that in the title and in the body of the act of 1881, city and comity officers are mentioned in connection with county and township officers. But the significance of that is not so important as it might at first blush appear.
It is only in cases where the charter of a municipal corporation contains provisions upon a certain subject, that a conflicting general law upon the same subject, is inoperative, within such municipal corporation. If neither the Consolidation Act nor any special statute relating exclusively to the City and County of San Francisco had provided at what time elections should be held for the officers of said city and county, the general statute upon that subject would have had the same force and effect within said city and comity as it has elsewhere. It doubtless applies to municipal corporations whose charters contain no provision in conflict with that of the general statute upon that subject. And to none other, I think. (State v. Mayor, 33 N. J. Law, 57; Cross v. Mayor, 18 N. J. Eq. 305.) The reason of the rule is doubtless this: Whether a general law repeals a charter or other special act in conflict with it, depends upon the intention of the Legislature; and the Courts have always assumed that if the Legislature intended by a general statute to divest a municipal corporation of any right, privilege, or power conferred upon it by a special act, the latter would be in some way unmistakably referred to in such general statute. . Perhaps a clause in the latter repealing all special acts in conflict with it might be sufficient. (Bank v. Bridges, 30 N. J. Law, 112; State v. Morristown, 33 id. 57.) But in the absence of any reference whatever in the general statute to charters or municipal corporations or special acts relating exclusively thereto, the rule is well settled that the provisions of such charters and special acts are not affected by the provisions of a general statute repugnant thereto. (Noy’s Maxims, 19; Gregory’s Case, 6 Co. 20.)
There is another circumstance which seems to me entitled to some consideration in the discussion of this question. The
If it was the intention of the Legislature to amend or repeal the provisions of any other statute than that specified, it is difficult to conceive of a title more repugnant than this is, to that provision of the Constitution which requires that the subject of every act shall be expressed in its title. The subject of this act, as expressed in its title, is the amendment and repeal of certain specified sections of the Political Code. That is its full scope and object, as expressed in its title. And as to any subject embraced in the act, and not expressed in its title, the act is void. (Const., art. iv, § 24.) If it was the intention to amend or repeal any of the provisions of any other statute or statutes, it should have been expressed in the title. As it is not, the Constitution limits its operation to the subject expressed in the title. Expressio unius est exclusio alterius. If intended to repeal or amend any special act relating exclusively to the City and County of San Francisco, no title could be more misleading than the one chosen to express that intention. And the test which Courts, in determining whether the subjects of acts were sufficiently expressed in their titles, have applied to them, is whether such titles were of a character to mislead the public or the members of the Legislature, as to the subjects embraced in such acts. As I view it, the Legislature has not in the body of the act of 1881 attempted to repeal the special act relating to the election of officers, for the City and County of San Francisco, and that if such intention were manifest in the body of the act, the failure to express it in its title would render it void.
There is still another reason for holding that the Legislature did not intend by the passage of said general act to repeal said special act. The general act was intended to, and has become a part of the Political Code, and nothing in that code can affect the provisions of the Consolidation Act or any act amending or supplementing it. (Pol. Code, 19.) Upon this question the code is to be construed as it would be if it had been originally enacted in its present form.
It is contended, however, that a general law, fixing the time for the election of county officers, applies to a consolidated municipal government, because it is provided in section 7 of article xi of the Constitution, that the provisions of it “applicable to counties, so far as not inconsistent or not prohibited to cities, shall be applicable to such consolidated government.” This probably means that any provisions of the Constitution applicable to counties, which are not inconsistent with any provision of the Constitution, applicable to cities, shall be applicable to a consolidated government, unless such provisions are prohibited to cities by the Constitution. But the provisions of this section are clearly prospective, and have reference to such city and county governments as might be merged into one municipal government after the Constitution went into effect. This is made apparent, not only by the language of that section, but more clearly so by a special provision in section 6, applicable to cities incorporated and organized prior to the adoption of the new Constitution, to which the option is given to organize under general laws,
Neither the act of April 2d, 1866, nor of March 30th, 1872, provides for the election of a Police Judge at the time of the election of other officers of said city and county; and the office of Chief of Police is no longer elective.
Section 4109 of the Political Code before the amendment of March 7th, 1881, contained a special clause in which the time of the election and term of office of the Assessor of the City and County of San Francisco are fixed. Neither as originally enacted, nor as amended, does that section provide for the election of Assessor this year. It clearly follows that an Assessor is not one of the officers to be elected this year in said city and county.
With the exception of Police Court Judges, Chief of Police, and Assessor, all the elective officers of the City and County of San Francisco must be elected at the time .fixed by the acts of April 2d, 1866, and March 30th, 1872. I think the writ should issue as prayed.
Concurrence Opinion
I concur in the judgment. It is not denied by any one that there is now in existence a law requiring an election for the elective municipal officers of the City and County of San Francisco, to be held on the first Wednesday in September of the present year, unless the act of the Legislature adopted May 7th, 1881, has repealed it.
It is obvious that to postpone such election would be, in effect, to extend the terms of the incumbents of those offices. To do this would be in direct violation of section 9 of article xi of the Constitution, which declares that the term of no county, city, town, or municipal officer shall be extended beyond the period for which he is elected or appointed. Therefore, if the aim of the act of 1881 was to postpone the election for the elective municipal officers of the City and County
In my opinion this act relates to the City and County of San Francisco as well as to every other part of the State, but, upon well-established principles, it repeals only such portions of the existing laws upon the subject to which it relates as conflict with its own provisions. I see no conflict between the act of 1881 and the law requiring an election to be held in the City and County of San Francisco in September of the present year. The act of 1881 provides for a general election in the year 1882, and every second year thereafter, of all elective county, city and county, and township officers, except Superior Court Judges; Superintendents of Schools, and Assessors. The effect of this legislation will be to shorten the terms of such officers as shall be elected the present year under existing laws, inasmuch as the terms of such officers are, under such laws, fixed at two years. But there is nothing in the Constitution forbidding the Legislature shortening the terms of such officers. To the extent of this conflict, but only to that extent, is the old law repealed by the new. Hence I conclude that under the act of April 2d, 1866, as amended March 7th, 1872, there must be held on the first Wednesday in September of the present year an election for the elective municipal officers of the City and County of San Francisco; that the terms of the officers so elected will extend to the first Monday after the 1st day of January, 1883, when they will be succeeded by such officers as may be elected at the general election to be held in the year 1882, under and by virtue of the act of the Legislature approved May 7th, 1881.
I think it proper to add the reasons which lead me to say that the act of May 7th, 1881, applies to the City and County of San Francisco as well as to all other parts of the State.
Section 6 of article xi of the Constitution provides that “ Corporations for municipal purposes shall not be created by special laws, but the Legislature by general laws shall provide
Dissenting Opinion
In dissenting from the judgment of the Court in Barton v.
Dissenting Opinion
I dissent. The act of 1881, referred to in the prevailing opinion, is a general law enacted by the Legislature, in pursuance of the provisions of section 5, article xi, of the Constitution, for the purpose of bringing elections throughout the State into harmony with the provisions of the Constitution, which require that all elections shall be held in even-numbered years. That such was the intention of the Legislature in passing the act is evident from- its language. The act took effect immediately upon its passage, and it is now, with those provisions of the Constitution which it is intended ho enforce, the law of the land. There can be no doubt that, by its terms, it includes the City and County of San Francisco. The provisions of the Consolidation Act of that city which aro in conflict with it, must therefore give way to it, for, as a general and uniform law intended to enforce the provisions of the Constitution, it has superseded and annulled all previous regulations—general or special—upon the same subject. That being the case, there is not, in my judgment, any law which
The question of public convenience is not involved in the case. Legally, however, the public will suffer no inconvenience. Those in office, although the terms of office for which they were elected have expired, are entitled to continue to discharge the duties of their office until their successors are elected and qualified. A temporary incumbent is a de jure officer, and his term of office is not extended within the intent and meaning of the constitutional provision referred to by Justice Boss.
Concurrence Opinion
I concur in the judgment. In my opinion the act of May 7th, 1881, in so far as it may operate to extend for a definite period the terms of office of the officers named in section 9 of article xi of the Constitution, contravenes the last clause of that section.
Thornton, J., concurred in the opinion of Mr. Justice McKinstry.
Concurrence Opinion
I concur in the conclusion that there should be an election of municipal officers within and for the City and County of San Francisco in September of the present year, but upon the question whether or not the act of 1881 applies to said city and county, I express no opinion, as I do not deem it necessary to pass upon that question in this case. I also concur in the opinion of Mr. Justice Sharpstein that neither the Assessor nor Police Judges are to be elected this year.
