Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1890-09-02
SETTLED al LAST.
THE SUPREME COURT DETERMINES THE
POLICE SALARY CASE.
1t Decides in Favor of the City and
Against the Men-The Special
Act Unconstitutional.

After many months of anxiety on the
part of the twenty-five policemen who
served the city from April l, 1889, till
April 1, 1890, they have been told at LASTLY
the Supreme Court that the Act under
which they were appointed was unconsti-
tutioual, aud that the city cannot pay them
the 500 month agreed upon.
The former force consisted of fifteen
men, and the special Act increased the
number to twenty five. The question now
is, will the city distribute the salaries OF
fifteen men among the twenty-five, or will
any of the men receive anything. The de-
cision is as follows:
The City of Sacramento is municipal corpo-
ration, organized in 1868, under an Act of the
legislature Statutes of 1868, page AIS, ct seq
1he Board of Trustees is under that Act the
governing body OF the corporation tStatutes OF
1868 Section ,. page 4l6), and by 1t the Board
was invested with power to create ana establish
a city police, to prescribe their duties and com.
pensation and TO provide for the regulation and
government OF the same to create the once OF
Chief of Police, and 10 elect such Chief and
visions and 9 pages 4l6-l7)
In 1872 an Act was passed amendatoTy of and
supplementary to the Act OF 1868, by which the
Office of Chief of Police was created, and Board
of Pol ce Commissioners. (statutes of 1912,
Sections l and 6. pages 2i5-4) This Board was
to consist of the President of the Board of Trus
tees, the Chief of Police and the Police Judge.
Section g. The Board was authorized lmme.
diately upon en- ering upon the duties to ap-
point a permanent police force for the city.
which was to consist of Captain OF Police and
such number of policemen, not exceeding nj
teen, as they might deem necessary for the pro
lection and good government OF the city.
BY the fourteenth section of this Act II was
provided that at the time of the levy of the city
taxes the Board of Trustees should estimate the
amount of money that Will be required for
police purposes during the fiscal year and shall
cause this money to be kept as separate, dis
tinct fund.- to be called the Police Department
Fund" which shall be used for no other pur-
pose whatever, except the payment OF the sal
aries and expenses of the Police Department,
and shall levy special tax to meet these esti-
mated expenses to pay The officers and ex-
penseS provided for in this Act
The former Act as regards the police was re-
pealed. section 10, Statute OF 1872, page 246
In March, 1889, an Act amending the Act OF
1872 was passed. By it the Board of Police Com
missioners was authorized to appoint policemen
not exceeding thirty in number (statuts OF
1889, page 1857
This act went into effect Immediately and on
the first day of April, 1889, the Board of Police
Commissioners, by authority of the last men-
toned act, appointed twenty-five policemen.
The petitioner, aud the others named in his Pc
tition, are the twenty-five so appointed.
The Board of Trustees, in February, 1889,
made the estimate and levy required by the
fourteenth section OF the ACE OF 1872, basng this
estimate and levy on the Police Department as
it then stood, consisting at that time of Chief
of Police, Captain of Police and fifteen police
men.
The sum raised by the levy OF February was
insufficient to pay the force subsequently ap-
pointed in April and the Board was requested,
on behalf of petitioner and the other appointees
to the police force to levy tax to raise the
sum required. The Board refused, and this
proceeding was instituted to compel 1t to do so.
The contention here made on behalf of appel
lants is that the Act of 1889 amending Section 6
of the Act of 1872, is unconstitutional and void,
aud hence it imposed no obligation on the
Board of Trustees to proceed to levy tax under
it.
1t is said that the Act is special and forbidden
by the 25th section of Article w. of the Consti-
tuition of 1879.
There can be no 1oubt that the Act of 1889 is a
special law. 1t relates to special Board OF
class of men to be appointed by this special
Board to perform the duties of their Office in the
one city above mentioned.
Is it forbidden by the Constitution?
Among other cases in which the Legislature
is forbidden TO pass special laws is the follow
ing: Creating Lffces or prescribing the powers
and duties of officers in counties, cities, cities
aud counties, townships, election or school dis
tricts." Art. ". of Constitution of Cal, Sec.
IS, Subd. 2S)
Conceding, as is coutended, thet police
officer is an officer of the State and no. of the
municipality in which he exercises his Office, it
does not follow that the provision above quoted
does not apply to them.
We think it applies to all officers who are ap-
pointed to exercise their duties in either of the
particular political divisions above mentioned.
&c MT init 6 n liz
visions, but embraces officers in such divisions.
! his Interpretation gives to the language of the
clause its usual and ordinary meaning, which
is the true rule, where the words are not en-
ployed in any technical or peculiar sense.
WE'LL VS.. Kenfeld, 81 Cal. 49, The prepo
sition in qualities the entire clause. and is used
as denotiBg officers who exercise their offices
and perform their duties within the limits of
either political division mentioned in the
clause. There is nothing in the context toin-
dictate that it is used in any other sense.
That the people of this State had power to
put the restriction on the legislative power can
not be doubted. This power was ample as re-
CARDS the police power of the city, conceding
that they were state or municipal officers.
The Act of 1889 creates the Office of police
man in the city of Sacramento. There can be
no doubt of this, as to the additional number
of policemen. whose appointment is authorized
by the Act. This creation of Offices in our judg-
ment is forbidden by the provisions above quoted
CT the original law of the State 1t is urged that
Act of 1880 is not Act creating offices, within
the meaning of subdivision IS OF Section 25 of
Article " OF the Constitution at merely gave
the city permission to have more police than
she had before. if it was deemed necessary for
the protection and good government of the city.
To say that such a permission is the creation OF
offices implies a misconeepfion of the meaning
of the term creation of offices This has been
ruled sgainst appellants contention in Ford VS.
Harbor Commissioners" Isl Cal. 49,
In that case there was no reference in either
opinion TO the clause of the Constitution re
ferred to- The Act under consideration did no,
require it. No point was there made that the
Act was special Act, or that il was es such in.
hibited by any provision of the Constitution
Section 252l of the Political Code, as amended
in 1852 was there considered, which provided
that the Board of State Ia Dor Commissioner
must, on entering on the duties of their Office
appoint the following officers: "A Secretary al
attorney, a Chief Engineer, and such number Of
WhariiDgerS and Collectors as they NAV deem
necessary" II provided further that such OH
GERS shall hold for term OF four years from the
dates of their respective appointments, but may
be removed by the Board az any time after due
investigation for causes affecting their offcia
character or competency. The order for such
removal, stating distinctly the causes therefor
must be entered on their minutes. In case of q
vacancy in such offices. by the expiration OF q
term or for any other cause, the Board must fiji
the same by an appointment for four years.
The action was brought by Ford to compel by
writ of mandate the allowance and payment Of
balance of his salary as Collector for the
month ending July a. 1889. II appeared by an
agreed statement of facts that Ford had been
appointed by the Board under the Act to the
Office of Collector on the 9th OF June 1887: that
he had duly entered upon and continued to
discharge the duties of his Office until he was
removed in July, 1889, for no cause affecting his
official character OF compe' ency. 1t further
appeared that the Board had In July, 1889
abolished the office.
II was held by three of the Judges of this
CouIt-fox, Mcfarland and Sharpstein-tha,
the Board had authority under the statute 10
create she Office OF Collector and consequently
had power to abolish it at its pleasure
Beatty C j., filed an opinion in which he
concurred in the judgment in which he repu.
dates the view taken in the opinion concurred
IN by the three Justices just referred TO- and
places his concurrence on the ground that the
statute under consideration was unconstitu.
tionai, for the reason that it delegated to the
Board the power OF creating an Office which
pertained to the Leg stature and which powe.
the Legislature could not delegate In this
opinion Works. j., concurred Patterson, J.
concurred in the judgment and Thornton, j.
diSsentcd.
It thus appears that only three of the Jus.
tees agreed in holding that the Office of Col.
| lector was created by the Board. This ruling
though worthy of great consideration by reason
OF the ability and learning of the three distin.
guished Judges who coucurred in II, cannot be
regarded as the decision of this Court and bind
ing IN any case authority
II the Offices mentioned in the statute were
created by the Board of Harbor Commissioners