The morning call., 1894-02-02
MAYOR ELLERT'S EXORDIUM.
Why the Election Would b
Invalid.
BLOCK DESIRES ASSISTANCE.
CresweIl's Resolution Defending the
Action of the Commis.
sion.

There was oratory at yesterdays meet
ing of the Election Commission. Every
member wanted 10 speak. until as time
passed on Mayor Ellert played the role of
Cicero in the M 3 jestic sweep of his arm IS
he rolled out volumes of his newly acquired
forensic lore. City and County Attorney
Creswell swelled up to the height of
greatness, and from these lofty tops
poured forth streams Of elOquence. Tax
Collector Block .waxed warm and thumped
upon the table with Pickwickian energy
as he insisted on point. City and County
Surveyor FitZhugh broke through his
usual veil of taciturnity and rolled out
cOndemnatOry adiectives. But the ever
loquaeious Auditor Broderick sat half
hidden by cloud of cigar smoke and said
never a word. for he was wrapped in the
silence of previous conviction.
The oratorical exhibition was due to the
consideration of the following resolution,
offered by Commissioner Creswell, ex-
planning to the public the acts of the COM
mission in poStponing the charter election
because it would be invalid if held in
April:
WHEREAS. the Election Commission In 1893
agreed to call an election of freeholderS to pre-
pare and propose charter, TO be held on April
3, 1894, ard requested the Board OF Super.
Vs0rs 10 make tax levy for the fiscal year OF
1893 aud 1894 OF $4,000, TO defray the eX.
penSeS of sucn all election, and whereas the
commission believed at that lime that said
election could be held for that sum, but that
since said time II has become apparent that
$4,000 VIII not be sufficient TO defray the eX-
penses OF such election, and that to hold the
same despite that fact means draft upon
other funds III the treasury which will cause
deficit at The end of the fiscal year Aud
~
ence with the commission that should not be
disregarded, namely:
That section of article XI OF the constitu-
ton provides that ANY city containing 4 popu-
laton OF more than three thousand five hun
dred inhabitants may frame charter for its
OF 0wh fTaeSoders eSufs ne eSabG bG
the qualified voters OF said city at any general
or special election"
And thal section 1O45, Political Code defines
special elections to be such as are held to
supply vacancies In any Office, and are held at
such times as may be designated by the proper
board of officers"
AND that if the definition given the words
especial election" by section 1043 of the Politi-
cal Code Is the meaning of those words as they
are employed in section OF article XI OF the
constitution IL IS apparent mat an election OF
1esbolderS TO frame charter Is not special
election, nor an election ITO supply vacancies
in any oflce."
And that the words Especial election" as used
In the constitution were considered by the Su-
pIeme Court OF California in the case OF People
VS.. dORe 100 CAtuOfDld reports, page OlI), ana
the question involved In that case was the va
lidlty of the election of freehoders TO frame a
charter for the city and county OF San Fran
cisco, in which case this language is used by
the court: "Ihe only condition imposed by
the foregoing constitutional provisions TO make
such election valid is that the freehOlders must
be chosen at a general or special election, and
IN this case that condition was fulfilled. ,
at appears from the transcript that procla-
nation was issued by the Governor for Tie
election Of State Senator to fill vacancy oc-
curing 10 the Eighth Senatorial District and
that that election was ordered TO be held on The
same day on which the election OF the fifteen
fTeebolders took place. The election 10 fill
such vacancy was special election under sec
ton 1045 Of The Political Code, which declares
that special elections are such as are held to
supply vacancies in any Office and held at
such times as are designated by the proper
board or officer, and hat the Eighth Senatorial
District and III which the vacancy at that cleo
tion existed then comprised The counties OF san
Francisco and San Mateo."
And since there can be no election TO fill a
vacancy In Office until vacancy shall have oc-
Cured and here is not now nor has there been
since January 1898, any vacancy in an Office
IN this city which could have been filled at a
special election, ana that the constitution does
not authorize nor is there any statute which
authorizes the calling or holding of an election
for the exclusive purpose Of electing such free
holders.
And that il the freeholders 10 frame a char.
ter can only be elected at general or special
election the election of freeholders at an cleo
tion held for that purpose alone would be un-
duluOliLCu Dt law duu consequently fU1u, ana
no charter framed by them could have any legal
force.
And whereas, section of article XI of the
constitution provides that "cities or towDs
heretofore or hereafter organized and ali
charters thereof framed or adopted by author
ity OF this constitution shall be subject to and
controlled by general laws" and hat it is ad-
visable TO amend that section by omitting those
words so that a charter Of the city when
adopted Will not be subject TO the control of
the Legislature OF the State and constantly be
made uncertain by the passage OF general laws
conflicting herewith, and whereas, at the next
session Of the State Legislature an amendment
of section of the constitution can be proposed
and submitted to the people at the SUBSEQUENT
general election, and whereas at the same
general election charter for the city can be
submitted 10 the people OF this city, and IL
adopted and subsequently approved by the
Legislature, will be free from the control OF
the State Legislature If the proposed amend
menJ TO the constitution should al the same
general election be adopted. Therefore, for
the foregoing reasons, 1t is
Resolved, That no action at this time be
taken In the matter OF causing the election of
freeholders 10 prepare and propose charter
for the city and county of San Francisco, and
that the motion deterring the election OF the
freeholders passed at our last meeting is
hereby affirmed.
although L subscribe TO some parts OF that
resolution, yet am not quite positive as to The
correctness of our position" said Commissioners
Block. ave should have further advice"
Further advice2 Te-echoed City and County
Attorney Cresswell scornfully. "Why | have
consulted the best lawyers on the subject. IL