The morning call., 1895-01-17
Neither Can Serve in the Work of
Charter-Making.
CONCLUSIONS OF LAW And OF FACT.
The Court Declines to Answer a CORun.
drum Which DiSpOSeS Of Reddy
and Whiting.

Court in relation to the contested election
of /. W. Hellman and W. B. Bourn as
members of the board of fifteen freehold
ers who are now engaged in framing new
charter for this city and county.
The opinion was written by Commits
sioner Searles and concurred in by Com
missioner Hayne, and their conclusions
were affirmed by the following members of
the court: Beatty, Chief Justice, McFar
land, Garoutte, Van Fleet and Henshaw.
This proceeding was brought to deter
mine by what authority the defendants as
individuals or as board are acting as a
board of fifteen freeholders to propose and
prepare a charter for the city and county
OF San Francisco.
Two several demurreTs were lnterpoSed
to the complaint, one on behalf of w. b.
Boun and |. W. Hellman, two of the de-
PENDANTS, and the other by all the defend
ants.
The demurrers and each of them were
sustained by the court and the relator de-
Ginning to amend full judgment went for
defendants, from which judgment the
plaintiffs appealed.
The complaint is that the city and
county OF San Francisco is and has been a
municipal corporation duly organized and
existing under and by virtue of an act of
the Legislature of the State of California,
approved April 10, 1856 and that it con-
tains population of 100000 inhabitants.
On the 18th of September, 1894, the
properly constituted authorities of the city
by due proceedings ordered that board of
fifteen freeholders, who should have been
at least five years qualified electors, should
be elected by voters OF said city and county
at the general election on 9th day Of
November, 1894, whose duty was to pro-
pose and prepare in ninety days after such
election a charter under and by order of
section of article XI of State constitution.
Thereafter and in due time forty-three
persons were nominated as candidates for
such Board of Freeholders. Certificates of
such nominations were filed as required by
law, all of whom were believed to possess
the qualifications required by law to ill
such offices.
The names of persons SO nominated were
placed on ballots as candidates for said
office.
On October 25, 1894, a proclamation was
duly made, issued and published by proper
officers that board of fifteen freeholders
would be elected.
At the general election the said persons
so nominated were voted for by the quail
fed voters, each receiving the number of
votes mentioned in complaint.
The vote was duly canvassed and the de-
PENDANTS duly declared elected.
Thereafter defendants received certif-
Gates of election, duly organized board of
fifteen freeholders and entered upon duties
as such board and are still so acting in pre-
pairing charter.
The defendants are not now nor have
been legally constituted Board of Free
holders, but have usurped functions of
said board without authority, and no
board was chosen by votes as required by
election and article of constitution for the
reasons:
Defendant 1. w. Hellman was ineligible
to said office in that he had not been for
five years a qualified elector of this city,
that he had been such qualified elector for
but three years, and that prior to that time
he was an elector and resident of the city
of Los Angeles. The defendant, w. b.
Bourn was ineligible for the reason that he |
had not been for five years a qualified cleo
tor OF the city as required by constitution,
that he had been an elector but two years,
that prior thereto he was resident and |
elect0r of Napa.
The remaining defendants and members |
OF board are but thirteen In number, and |
do not constitute a board of fifteen free
holders.
The above-named thirteen defendants |
are ali eligible and qualified to hold office |
as members of Board of Freeholders, and !
have accepted certificates and acknowl- |
edged rights of said defendants, Holman |
and BOurn, as members of said board, and |
are sitting with them as members of said |
board, and claim that persons are and con-
stitute board of fifteen freeholders.
The general demurrer of the defendants |
was on the ground that the compliant did |
not state facts sufficient to constitute a |
cause of action"
The separate demand of Hellman and |
Bourn was on the ground that the COM /
plant did not estate facts sufficient to /
constitute cause OF action against these !
defendants or either of them"
The first question for consideration re- |
lated to the eligibility of l. w. Hellman |
and W. B. Bourn as freeholders under the |
constitutional provision.
They had not been for at least five years |
qualified electors of the city and county, in |
which the election was held and for which |
the charter was to be prepared.
fThe language used by the trainers of the |
constitution" said the court, ''in regard to |
the qualifications essential to eligibility to |
the Office of freeholder is plain and une-
quivocal.
1.-THE defendants, Hellman and Bourn, !
not having been for at least five years quail !
fed electors, were ineligible and their sep
arate demurrers should have been over
ruled.
''Do the remaining thirteen members, |
who were regularly elected, constitute a |
legal board, with authority to act? The |
contention of appellant is that to consti- |
tute valid board fifteen qualified MEM |
bers should be elected, and that with |
out such number thus qualified there can |
be no constitutional board, and hence that |
the thirteen members should be inhibited |
from acting either with or without the two |
unqualified.
1--WE think this position is unwarranted |
under the language of the constitution and |
not in consonance with public policy or the |
analogies in similar cases."
cit is true" said the court, 'the consti-
tuition provides for the election of board |
of fifteen freeholders, but the persons who |
are when elected and qualified to consti- |
tute such board are elected and must |
qualify as individuals, and the entity |
known as the board has no legal existence |
until it is organized by the individuals who /
come clothed with insignia of authority |
afforded by certificate or other adequate
proof of election.
1.-THE electors select the persons who are
to constitute the board, but do not create
the board. That is done by the organiza-
ton of the members. When the electors
have elected by plurality of all the votes
cast fifteen members to constitute the
board, and furnished them with the evil
dence of such action, their power in the
premises is exhausted, and the requirement
of the constitution is so far complied with |
baf nvlu rar,ooi fo, ha