Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1889-08-03

eIdi laws LHeS6 BtutTbl l6Wb are ftpuSudlt
to the charter, which shall prevail? One must
give way. If the charter must give way, then
it may be superseded by general laws, and I'M
der guise of general legislation new charter
given to city without a vote OF the elect
ors. Such was not the intention of the
trainers of the Constitution; they left the
charters of such cities and the power of the
Legislature to amend them just where they
found them, and they cannot be affected
by general laws. The view which we have
expressed is sustained by the opinion of
The Court say "The first question which We
shall consider is this If the Mcclure charter be
constitutional, can it have any force or effect
within municipal corporation which was in
corporated prior to the adoption of the Consti-
tuition until a majority of the electors of such
corporation vote to accept or organize under ii?
Section of Article III. provides that cities and
towns heretofore organized or Incorporated
may become organized under general laws
whenever a majority of the electors voting at
general election shall so determine and
shall organize in conformity Herewith; and
cities and towns heretofore and hereafter or
gained 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 pres
ent Constitution, and the latter clause is ex-
pressly 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charters must remain in force until superseded
in the mode presented by the Constitution. In
the absence of any positive provision to the
contrary this is necessarily implied. These ate
the only provisions which are expressly made
applicable to cities incorporated previously to
the adoption OF the Constitution and the first
expressly provides that any OF such cities may
become organized under general laws when
ever majority of the electors of such city shall
so determine and the Others, that any charter
framed or adopted under the present. Constitu-
ton shall be subject to and controlled by gen
eral laws. But charters not AIMED or adopted
by authority of said Constitution need not be
subject to or controlled by general laws There
fore, the charter of the city and county OF San
Francisco, which antedate the present Con.
stitution and was not framed or adopted
by authority of it, is not subject TO or
it follows that if the Mcclure charter
ia Is within the term g neral laws it
cannot have any force or effect within the city
and county OF San Francisco until majority
of the electors thereof so determine i'll the man
ner provided il the Constitution, unless there
be some other PROV. ion of the Constitution
which gives force and effect to said charter
without such determination OF msJority OF the
electors. As these two clauses are the only ones
which expressly refer to cities which had char
tiers before and at the time of the adoption of
the Constitution, and as many of the other pro
visions of the Constitution Enthusiastically refer
to charters to be framed or adopted after the
adoption of the Constitution, ii is clearly ouc
duty, upon well established principles of con-
struction, TO hold that any general provisions
which seem to conflict with these special pro-
vi ions were intended to apply to charters
framed subsequently to the adoption of the
Constitution. (Dwaris on Statutes, 765; COoley's
Constitutional Limitations 63; Commonwealth
VS.. The counsel of Montrose, Pennsylvania
Statute, SOL; Wise vs. Button, %; Wisconsin. 1897
But it is contemplated that the subsequent de-
cisions of the Court ccnf.c with that decision,
and to sustain this contention the counsel for
the defendant cite the following cases: Bishop
VS.. Oakland, IS California, 572: Wood VS. Elec-
ton Commissioners, IS California, 55l; StTaude
VS.. Election Commissioners, 81 California, 313;
Earle VS.. Board of Education of San Francisco
So California, 4s9; Thomson VS.. Ashworth, 70
California, 73 But the question inyo we'd in
these cases, for which reason this Court is not
bound by those decisi ms, but it is the duty of
this Court to test the idity of the Act in ques
ton by the Constitution itself. In the case of
Bishop VS.. Oakland the question arose on gen.
eral law DIVIDING for the election of Justices
of the Peace in CT les; but Section Of Article
vi. of the Constitution expressly confers the
power upon the legialaiure to enact such laws
in these words: THE Legislature shall deter
mine the number of Justices of the Peace 10 be
elected in townships, incorporated cities and
towns, or cities and counties, and shall fix bv
law the powers, duties and responsibilities of
justices OF the Peace" And Justice Sharpstein,
IN his concurring opinion in that case, said:
THE Legislature has power TO determine the
number of Justices of the Peace to be elected in
Incorporated cities Constitution, Article VI,
Section p, and lis not prohibited from doing
so by local or special law" Constitution, Ar
ticle ", Section 25.) This, then is not an au-
tho.ity in favor of the unconstitutionality of
this Act; nor is the case of Wood VS.. Election
Commissioners. II was claimed in that cas- G
that the Act approved March 7th, 1881, amend
ing Section 400 of the Political Code which
provided that ell elective county, city and
county, and township officers should be elected
at the general election in 1882, superseded and
repealed the Act of April ID, 1866. as amended
March 9TH, 1872; but the Court decided that as
the title OF the Act was IAN Act TO amend Sec
ton 4,l09 of an Act to establish Political Code,
approved March l2Ih, 1872, relating to the cleo:
| township officers, and to repeal Sec.
tons 4024, 4,027 and i,lll of the Polit-
ical Code it did not comply with Section "a
of Article ~. of the Constitution, which re-
quired that every Act shall embrace but one
subject which subject shall be expressed in its
title, and for this reason was void and did, not
repeal or supersede those Acts. And the case of
Desmond vs. Dunn is affirmed in that case But
in Straude VS.. Election Commissioners the
Court overruled the case of Wood VS.. Election
Commissioners, and decided that the Act was
valid as a general law under Section of Article
II. of the Constitution. The decision was by a
majority OF the Court only. Justices Sharpstein
and McKinstry dissented. Nor were the ma
jority agreed as to the grounds of their decision
And Justice Ross said, n his opinion in which
Justices Thornton and Morrison conceded that
until majority of the electors of city incor-
porated prior to the ad ption of the present
Constitution, should determine by t1efr votes
to organize, as provided in the Constitution its
charter cannot be vacated or abrogated by any
general Act OF Incorporation, and in support of
the proposition he cites Desmond VS. Dunn SIS
Cal, 2i2. If this be true, how the Court could
arrive at the conclusion that the Act was valid
as general law, we are unable to comprehend
The case OF Earle VS.. The Board of Education of
San Francisco has no beariDg on the question
before the Court. The Act sought to be sus-
tanned iu that case was special Act relating to
salaries of school teachers in San Fran
cisco. The question was, did it conflict
with subdivision a of Section 25 of Article w
of the Constitution. That sectioa provides that
the Legislature shall rot pass local or special
laws in any of the following cases thai is to
say: then follows the specification of several
cases and subdivision "a reads: Providing for
the management of common schools" The
Court helo that the Act was repugnant to that
provision of the Constitution and void But
there is no such question in the case under
consideration. In the case of Thomason vs.
AshWorth the Act of March 18th 1885 to pro.
vide for work on streets lanes alleys courts
places, sidewalks and for the construction OF
sewers within municipalities was decided TO be
constitutional as general law, bu: il is said in
the opinion of Justice!Thornton, who delivered
the majority opinion of the Court, that charters
OF cities incorporated before the adoption OF The
present Constitution could not be amended by
spcclai ACT. But no provision of the Constitu-
ton which expressly prohibits such special leg.
islatlon is cited or referred to by the learned
gusticei nor is there any such provision to be
found IN the Constitution; nor was the state
ment necessary to thefdecision of the case as
the law involved in that case was a general and
net special law, and it may be conceded that
~ was valid law and still it does not necessa
My follow that the Legislature could not enact
special law amending the charter of a city in
eorporated before the adoption of the Consti
tuition But we have shown that Section of
Artlcle IL OF the Constitution cited by the
Court in Thomason VS.. Ashworth did not apply
to cities incorporated before the adoption OF The
constitution, but If 1t did apply TO such cities II
mas been modified by an amendment of Section
of Article ii. of the Cons. tuition cited by The
learned counsel for the def nse The amend
ment was adopted April II, 1887, since the Acts
considered in the cases cited were passed
Even II those decisions were correct under the
constitution as II then stood, they are incou-
sistent with the Constitution as amended IN
DER Section of Article H., as il stood before
the amendment OF Section of the same article
ants, incorporated before the adoption of the
constitution, might become organized by vote
OF the electors under general laws but under
yided in the amendment that "any CITY con.
tanning population of more than 10000 and
not more than 10000 inhabitants may fame
charter for its own government consistent with