The record-union., 1891-02-18
NOT CONSTITUTIONAL

The Acknowledgement Sees Some Legal
Objections to Bill No. ia.
AttorneyGeneral Hart rendered the
following opinion yesterday regarding the
fire department bill, which caused
such spirited contest in the Legislature
recently:
Hon. q. F. Bert, Member Of the assembly
DEAR SIR: At your request have examined
Assembly Bill No. 174, and in reply will say:
First have no doubt but that the Legisa-
ture can pass an Act creating q Board OF Fire
commissioners, but in order to do so it is nee
essary that the act shall be one that applies
generally to towns, cities, and cities and coun-
ties OF the Stata.
Second-It is provided by Section 5. Ar
ucle NI. of the Constitution, among
other things, as follows: 'Sec. 3. The
legislature, by general and uniform laws,
snail provide for the election or uppoiiltHtent
I III the several counties of Boards OF Supervis-
ors, Sheriffs, County Clerks, District Attorneys
ana such other county, township and muni-
cipal officers as public convenience may re-
quire, and shall prescribe their duties and fix
their terms of Office"
Section of Article Xxx. provides: "Sec.4. All
othcers or commissioners, whose election or
appointment is not provided for by this Con-
| stitution, and all officers or commissioners
whose Offices or duties may hereafter be created
by law, shall be elected by the people, or APP
pointed, us the Legislature may direct"
| l have no doubt that under these provisions
! OF the Constitution, Fire Commissioners may
as follows:
1. May disappointed by the Governor.
Z, May be appointed by the City Council or
Board OF Supervisors, or legislative depart
ment of the municipality.
3; Or may be nominated by the Governor
and confirmed by the legislative department
| OF the municipality.
T. Or may be elected by the people
Third-lt may be claimed that the provis-
ions OF Section 20 of Article ". which pro-
| vides:
Section 25. The Legislature shall not pass
local or special laws in any of the following
enumerated cases, that is to say: 3
notwithstanding Offices, or preScrib-
ing the powers and duties of officers in coun-
| ties, cities, cities and counties, townships
election or school Districts" do not apply or
| operate against the power of the Legislature
| to pass general law providing for a Board of
| Fire Commissioners. The section Just quoted
under this subdivision, simply provides that
the Legislature shall not pass local or special
laws on the subject mentioned, which implies
that the Legislature may pass a general law
upon any of the subjects therein enumerated.
1t may be claimed that Section ! s. of Arti-
Gle XI. of the Constitution applies to the sub
ject of Board of Fire Commissioners Such
! is not the fact. That section simply applies as
an inhibition upon the Legislature to grant to
special commission" (which does not mean
a Board of Fire Commissioners, or any board
whose Office applies to the whole city; but
means commission having charge of the
| opening of q street, or controlling a part OF
the municipality as distinguished from the
whole. The proviso, private corporation.
| to private persons, private corporations and
| Incorporated companies as distinguished from
officers of municipalities created by u general
Act of the Legislature.
| Fourth-Assemby Bill No. 171 as amended
when examined in the light of the foregoing
| authorities, presents the following facts
i. Section l of the Act in its present shape
| is not constitutional, because it is not broad
enough to be general in its nature and meet
the requirements of the Constitution and the
first clause of Section z of the Act is insuff-
cient to obviate the objections made to the
first section.
2. Section is Objectionable constitutions
ally) for the reason that it is not broad enough
to be general in its nature, but practically
limits its operation to the city and county of
OF San Francisco which makes the law spe-
cial.
3. Section 8 Of the Act prevents a Fire
Commissioner from being eligible as q candi-
date to succeed himself. This is not lawful or
proper.
4. Section of the bill is also Objectionable
in that it confines the Commissioners to the
rules and regulations of the City Council !;
which expression, "City Council" is not broad
enough to include towns, snd cities and
counties.
Section is not broad enough to include
towns, and cities and counties.
Other than this / do not see any legal or
constitutional objections to the bill. Yours
| respectfully, VIM. II. Fl. HART,
Attorney-Genera