Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1889-08-02
WILL GET THEIR PAY.
Judge Armstrong; Decision in the Polio,
Salary Case,


tive in not alleging that the plaintiff and
his assignors were elected by the Board of
Police Commissioners, still the Court holds
the Act of the Legislature under which
the police force was increased to twenty
five TO be constitutional, and that the sala-
ries of the officers may be paid out of the
General Fund when the Police Fund is ex-
hausted.
The decision is very lengthy and care
fully written one, covering the whole ques-
ton of amending the city charter in an
able and thoughtful manner. He says:
The action was commenced by plaintiff
to recover hissalary for services as police
man for the month of April, 1889. and the
salaries of the Captain of Police and
twenty-four other policemen which had
been assigned and transferred by them to
plaintiff.
THE point of objection made by counsel
for the defendant is that there is no law
which confers authority upon the Board of
Police Commissioners to elect twenty-five
policemen. In reply to this objection the
counsel for the plaintiff cites and relies on
Section 6 of the Act smendatory of and
supplementary 10 an Act approved April
%, 1868. entitled on Act to incorporate the
city of Sacramento, approved March g.
1872, as amended by act Of the Legislature,
approved March II, 1889 As that section
stood before amended power was conferred
on the Board of Police Commissioners to
elect a number of policemen not to exceed
fifteen; but by the amendment the power
was extended to number not to exceed
thirty. There was no other change in the
section so far as affects the claim of the
plaintiff. But it 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 Board of
Police Commissioners to elect policemen
the counsel for the defendant are not
agreed. Mr.. Johnson, special counsel for
the defendant, contended in bis argument
that, notwithstanding the amendment. the
Board had power to elect fifteen policemen;
but Mr.. Church, the City Attorney, took a
different view of it, and claimed in his ar
gument that the amendatory Act, though
unconstitutional, repealed or superseded
the original Act, and therefore the Board
of Police Commissioners had no power to
eject any policemen. The view which the
Court takes of the constitutiopality of the
amendatory Act renders it unnecessary 10
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."
The Court holds:
The Legislatures power is absolute I'm.
less there is an express limitation in the
Constitution.
Unless there is a clear repugnance be-
tween an Act and the Constitution the
Court should sustain the Act.
Where there is a reasonable doubt
" not hpr tho a iS 10 ha
stitution it should be sustained.
Where one or more things are affirma-
lively enumerated, it is to the exclusion of
all others not included in the enumeration
-eIpreSSiO illiUS est ercluSiO dlteriuS
The Act in question is amendatory of
and supplementary to city charter erected
prior to the adoption of the present Con-
stitution. The Constitution is that such
charter cannot be amended by special Act.
[Sections 6, s and IS of Article II. subdivi-
visions 49, D. 80, SO of Section % of Article
~ of the Constitution, are cited in sup
polt.l
Section 6, Article II, is obscure, but its
trainers were providing for new municipal
corporations and for organizing old ones
under general laws. They dealt with old
ones only to the extent of organizing them
when majority of the electors voted so 10
do.
The Legislature cannot create a munich
pal corporation by special act, under the
first clause of this section, bat there the
Limitation ends, and the Constitution does
not limit the power to amend charters
when the Constitution was adopted, but by
implication the power to so amend is re-
tanned IN the Legislature, and this is be-
cause Immediately after the clause imposing
the limitation, and in the same sentence,
the Constitution directs the passage of gen.
eral laws for the organization, etc, of cities.
Now, as these general laws are to authorize
an organization, ETC., according to the max
i'm cited, such laws can apply only to mu-
nicipal corporations that are organized I'M
der such general laws.
The Court at length argues and illus
trates this point-that cities existing when
the Constitution was adopted are not or
gained under general laws until they vote
so to do, and are not subject to them; that
the trainers of the Constitution left the
charters of such cities and the powers of
the Legislature to amerd them Just where
they found them, and they cannot be at
fected by general laws.
The Court quotes at length in support of
this view, Desmond VS.. Dunn (55 Cal 246),
and elaborately explains supposed incon-
sisiency between that and other constitu-
L.
and concludes that even if it could be adj
mltted that Section 6 of Article H. of the
Cons tuition did apply to cities incorpo-
rated before the adoption, il has been mod
lied by an amendment tn Section 8 of
Article II adopted April II, 1887 Under
Section 6, prior to amendment of Section s,
cities of less than 100000 inhabitants. in
corporated prior 10 the new Constitution,
might organize under general laws, but,
under the amendment, cities of more
than 10000 and under 100 coo may frame
their owD charters, not inconsistent with
the Constitution aud laws, by selecting a
Board of Freeholders and submission to
the people and to the legislature
ALI such charters are 10 "supersede any
existing charter and any amendment thereof
and all special laws inconsistent with such
charter"
So reads the amendment to the Consti-
tuition, and according to the maxim cited
it is declaration that an existing
charter, superseded by q charter adopted
under the amended Constitution, might
have been amended by the Legislature.
Judge Armstrong says upon this point:
IF such charter could not have been
amended, wherefore the necessity to declare
in the Constitution that the amendments
should ne superseded by the new charter?
OHlcS5 tuc De
amended it was vain to declare the amend
ments superseded by the new charter, and
we are not at liberty 10 presume that the
trainers of the amendment intended vain
and useless thing"
Counsel for the city claimed that there
was repugnance between Subdivision 10
of Section % of Article " of the Constitu-
ton and the Act increasing the police force
but the Court holds 10 the contrary, also
that the Act is not repugnant TO the Sec
ton prohibiting theLegislature from passing
special Act creating an office, etc. The
Act does not create an offire, but simply
authorizes the appointment of an addi-
uonal number of policemen, and there is
therefore no conflict between the Act and
the Constitution.
Nor is the Act in conflict with Subdivi-
sion 30 of the same section. in affecting
fees and salaries of officers. They remain
as fixed by the original Act.
Judge Armstrong argues at length to
show that the general laws could not apply
to Sacramento, as its wants and necessities
are not similar TO those of any other city
that the Legislature is the Judge of this
dissimilsrty aud non-applicability of The
general laws, and therefore is vested with
the power in such cases to specially legis-
late.
Incidentally. and to illustrate the situa-
ton he points out that the indebtedness of