Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1889-08-03
The POLICE SALARIES.
FULL TEXT OF JUDGE ARMsTR0NG's
DECISION.
nc Holds that the Act of the Legislature
Amending the Charter is Con-
stitutional

The RECORD UNION published yesterday
morning a very full synopsis of Judge
Armstrong; decision in the case Of L. W.
Farrell VS.. the City of Sacramento, but as
there seems tc be great desire to know
upon just what reasoning the learned Judge
based his conclusions, we herewith present
the full text of the decision, which is as
follows:
In the Superior Court of the county of sacra-
Eento, State of California. L. w. Farrell, plant
in, VS.. the city of sacramento, defendant
This action was commenced by the plaintiff
60 recover his salary for his services as police
man for the month of April, 1883, and the sala-
ries of the Captain of the police and twenty
four other policemen which had been assigned
and transferred by them to the plaintiff. The
amended complaint contains tweuty-six counts,
20 each of which the defendant interposes a
demurrer on the ground that the complaint does
not state facts suticient to constitute cause OF
action. The point of objection made by counsel
for the defendant is that there is no law which
confess authority upon the Board OF tolce Com
zaissioners to elect twenty. hye policemen. In
rep to this objection the counsel for the plant
III cites and relies on lection of the Act
Smendatory OF and supplementary TO an Act ap-
proved April %, 1858. entitled an Act to incor-
porate the city of Sacramento, approved March
6, 1872, as amended by Act of the Legislature,
approved March a. 1882 AS that section stood
before amended, power was conferred on the
Board of Police Commissioners to elect a num-
Der of policemen, not 10 exceed fifteen
but by the amendment the power was
extended to number not to ex-
Guted for The word fifteen" There was no
other change in the section so far as affects
the claim OF the plaintiff stated in the amended
complaint But 1t is contended by the counsel
for the defendant that the Act by which that
section was amended is unconstitutional but
as to its effect upon the powers of the
policemen, the counsel for the defendant
are not agreed. Mr. Johnson, special
counsel for the defendant contended In his
argument that, Notwithstanding the amend
ment, the Board had power to elec. fifteen
policemen; but Mr.. Church, the City Attorney,
took different view OF 1t, and claimed in his
argument that the am ndatoIy Act, though
unconstitutional, repealed or superseded the
original Act and therefore the Board of Police
Commissioners had no powerto elect any police
men. The view which the Court takes OF the
constitutionality of the amenddtory act rem
ders it unnt cessary 20 decide which of the
learned counsel is right; but it would seem that
the view taken by the City Attorney is most
logical and it must be conceded that there are
authorities which support it.
Ii NAV be stated, IN Hmi7le, that there are GER
tain principles OF law 10 be observed i'll consid
ering whether the Legislature has traLscended
its constitutional powers in enacting law
First-Ihe legislative power of this state is
vested in the Legislature Section of Article ".
of the ConstitutiOn), and the Legislative unless
limited by the Constitution, is sovereign and
absolute. (Smi h on Constitutional and statutory
Law, Section l34. /. kents Com. AIS second
Unless there is clear repugnance between an
Act of the Legislature ana the Constitution it is
the duty OF the Court to sustain the validity OF
the Act In the case of the University of Cali
fornia VS. Bernard (57 Cal. 6l3) the Court said
that ''the rule defining the duties of the judici-
&ry in passiug on the constuutionaiIy OF an
Act OF the Legislature is well settled in this
State; that such au Act should not be declared
unconstitutional ana void unless there is a
clear repugnance between the Act and the Con-
StiIutiou; and where there is a reasonable doubt
whether The Act is repugnant to The Constitu-
ton, its constitu;ionality should be affirmed"
There are many authorities to the same effect,
and third, that the affirmative enumeration of
one or more things is the exclusion o all others
not included in the enumeration, according to
the maxim erpressto untus est ere usto dteriuS.
people VS.. Jewett Cal. $685. Then, keeping
these rules or principles of law in view, we pro-
coed TO ties. the Act in question by the Constitu-
ton. The Act amended by this act was Act
amendatory of and supplementary to the city
charter, and as such was part Of the charter
The city had been incorporated before
the adoption OF the present Constitu-
ton. The learned counsel for the de-
fendans concede that the charter was
neither repealed nor affected by the new Con-
stitution; but theg contend that such charter
cannot be amended by special Act of the Leg
islature, ana they cite Sections 6, g. and IS Of
Article ii, aud Subdivisions 10, IS, % and SO of
Section p OF Article ~ of the Constitution as
denying the power to the Legislature to enact
such special law. 1t is not cit ar that the Act is
repugnant to. any OF these provisions of the
Constitution. Section 6, of Article IL, of the
Constitution, is in some degTee obscure still IL
is clear that The trainers of the Constitntion in
this section were dealing with aud providing
for the creating of new municipal corporations
aud for organizing or Incorporating old ones
under general laws, and that they were not
dealing with old municipal corporations further
than to authorize them to organize under gen.
cral laws when q majority of the electors de-
termined by their votes to do so. This section
contains two paragraphs. The first one reads
thus; Corporations for municipal purposes
shall not be created by special laws; but the
Legislature, by general laws, shall provide for
the incorporation, organization ana classical
ton, In proportion to population. of cities and
towns which laws may be altered amended or
repealed" The first clause which provides
that Corporations for municipal purposes shall
not be created by special laws" is a Ii initiation
upon the power of the Legislature and de-
pFives II OF The power to create municipal cor
poration by special Act; but there the lin
itatlon upon the power the Legislature ends IL
does not assume 10 limit the power of the Iegis-
lature to amend charters OF municipal corpora
tton by special Act which existed at the time
the constitution was adopted: but by implica-
tton the power to amend such charters is re-
tanned by the Legislature. This is manifest, for
Immediately after the clause imposing the limi-
Lation apon the power of the legislature the
trainers OF the Constitution, in the same SEN
terce, require the Legislature to provide by
general laws, for the Incorporation, organiza-
SION aud Classification of cities and towns Thea
as such general laws are 10 au hoTize the incor-
poration, organization and classification of
municipal corporations according to the maxim
<rpTeSs1o u1ttS est ebc{uSi0 alte1iuS-the express
sion OF one thing is the exclusion of all others
such general laws apply to and operate upon
only such municipal corporations as are or shall
De Incorporated, organized and elias flied under
of the second paragraph of this section
reads: Cities and towns heretofore organi-
ized or incorporated may become organized I'M
der such general laws whenever a majority of
She electors voting at general election shall so
determine and shall organize in conformity
herewith" This clause only autho rizes NUM-
a lions ah .,sssa
which existed at he time of the adoption of The
Constitution, to organize under general laws
put even they may not organize under general
laws uuntil the electors OF such cities or towns
should 50 determine by vote and organize in
conformity with such general laws; and apply.
ing the rule that the expression of one thing is
the exclusion OF all others, by clear implication
the trainers of the Constitution intended that
such general laws should only apply to and
operate upon cities aud towns existing at the
time OF the adoption of the Constitution y hich
subsequent to its adoption. organized under
general laws, aud that they should not appiv to
cities ana towns existing at the time of the
adoption OF the Constitution which did NOT he
come organized under general laws But il is
thought by some that the second clause of The
paragraph OF this section makes general laws
appiicao4e 10 municipal corporations organized
before the adoption Of the Constitution; which
clause reads thus: And cities and towns here.
S9iore or hereafter orsanized, and all charters
thereot framed or adopted by authority OF this
CONSTITUTION shall be subject and controlled by
general laws" Those who contend that this
Clau'e su Jscts clties ana towns organized before
the adoption OF the Constitution to general laws
pharaphrdse or read the clause thus: And
cities and towns heretofore or hereafter organ
lIed shall be subject TO aud controlled by general
laws. II his was tue reading of the clause the
proposition coutended for could not he denied
Put such is not the reading. The words, land
an charteIs thereof framed or adopted by
authority OF this Con tilution'' are omitted
put they were inserted by the trainers of the
constitution, and We must presume that they
were inserted for some useful burmese They
are material words The woyd fthr-cnf,, oTsi
ines the word charters as the charters of
cities and towns heretofore or hereafter organ
Sn1el, ms assumes that the cities and towns
heretofore or hereafter organized" must have .
charter. To suppose city without charter is
20 suppose an aosuTdity; a municipal corpora
Sloh ca,i nave no egsi being or existence with
out a chatter. The city is governed and con
troied by its charter Bus what chsrters Of
cities is 10 be subject 10 and controlled bv gen
gNrE a. In - -