The herald., 1896-01-23

IltS act. lOecs u j.
The language of the act, as we'll as its
whole scope and purpose, shows that it is
general in its nature. 1t relates to con-
ventions held for state officers, also district
conventions composed of more than one
county, and provides that candidates can
not be voted for for public offices at gen.
eral elections in the state unless they have
been nominated as specified in the act;
still, by section 20, near the close of the
act, il is declared that it shall take effect
and be in force only in counties of the first
ard second classes. The last act classify
ing counties passed January 20, 1898,
is based upon the federal census
of 1890 and provides that all
counties containing a population of
100000 inhabitants and over shalt belong
to and be known as counties or the first
class, and counties containing popula-
ton of 100000 and under 100000 shall
belong to and be known as counties of the
second class. Statutes 1895, pages l and
2.l The court, therefore, takes notice of
the fact that the only county of the first
class is the city and county of San Fran-
cisco, and the only county of the second
class is the county of Los Angeles. In
Welsh VS. Bramlet. 9S California, > 1926,
the supreme court say: "The legislature
has not the general authority to enact laws
for the counties by classes, nor is it author
lied to make classification of counties for
any purpose of legislation. except for the
purpose of enabling it to regulate the COM
pensation of county officers for whose
election or benefit it shall provide"
''Whenever it attempts to enact a law
for one or more counties of the state on
subjects that it is directed to provide for by
general laws or which are to form part of
a uniform system for the whole state,
whether such counties are designated
directly by name OF by reference TO class
into which they have been placed by other
G1hinatG Of
provisions of the constitution referring to
article 4. section %, and article o. sections
and 3.
Section 25 article referred to, reads:
1.-THE legislature shall not pass local or
special laws in any of the following emu
merated cases; that is to say" enumerating
thirty-two specific matters, among which
is subdivision 8, regulating county and
township business or the election of county
or township Office Subdivision IL pro-
vides for conducting elections or desgnat-
ing places for voting, except on the organ
ization of new counties. Twenty-eight
creating offices or prescribing the powers
and duties of officers in counties and cities.
cities and counties, township elections or
school districts, and then adding the gem
eral subdivision SO, ''n all other cases
where general law can be made applca-
ble." In addition to these it is provided in
section IL, article l, that ''all laws of a
u
tion."
In the brief filed by ex-District Attorney
Dillon he admits that the act is general i'll
its nature, but claims that the provisions
are well calculated to prevent fraud at
primary elections, and he claims that
whether the law can be made applicable
to other counties than the first and
second classes depends upon questions of
fact of which the legislature is the exclu-
sive judge, and that the legislature eXer-
cised its judgment in this case. AS shown,
our supreme court differs with counsel in
| this respect, and the convention, in adopt
ing the provision of the constitution re-
| ferred to, considered this question, whether
| it was one for courts to determine or the
legislature. At the time this section in
reference to special legislation was under
consideration Delegate Mcfarland, now
one of the justices of the supreme court,
| moved to strike out the SD subdivision,
and said in support of his motion: when
ever law is passed by the legislature
somebody will take it to the supreme court
to see whether it is special or general. 1t
is entirely unnecessary and mischievous;
we don't want to provide for any more con-
stitutional law questions than is absolutely
necessary: the courts will have enough to
do anyway" Delegate Van Dyke: Il agree
with the gentleman that this is vicious
amendment and can see no good purpose
that it can subserve; it will always raise
the question in courts whether law could
not have been made general "Mr. Lar
knit is rather remarkable that these two
distinguished lawyers should raise an OBJ
lection to this section that it would tend to
encourage their business. That section is
the most important section of this whole
provision; 1t is true principle of govern
ment and whenever general law can be
made applicable special law should not
be passed." And the convention concurred
n 10 vic nf orlft nd
strike out the thirty-third subdivision. Sd
Debates Con. Convention, P. 1871. Sub.
Sequently tine same motion was renewed
and after debate in the same line, as
shown. the convention again refused to
strike out the subdivision. This shows
clearly that it was the sense of the conven-
ton not only that it should remain in the
constitution, but that it should mean what
it says and that the courts, in the cases
presented to them. should determine the
question whether general law could be
made applicable in all the counties as we'll
as IN one or more.
The purpose of the act in question as
claimed is TO prevent frauds at primary
elections and purify the elections. and
clearly such beneficial legislation in a gem
eral law should have uniform operation
throughout the state. No good reason can
be assigned why such law should not APP
ply to other counties than San Francisco
and Los Angeles. In Bloss VS.. Lewis, Al
Z. H., 1881, it was held that a provision in
county government law that fixes a fee
for official services in counties of the thir-
ty-third class different from that of other
counties, violated the provisions of the con-
stitution requiring laws of general nature
to operate uniformly and forbidding local
or special laws in all cases where a general
law could be made operative. So also in
Turner vs.. Siskiyou county, AZ P. R., 434, ,
it was held that the provision in the Coun-
ty Government Act allowing witness in a
criminal case before the superior court in
counties of the twenty-eighth class alone
the same per diem and mileage as Jurors
was void for like reason. See also Miller
VS.. Kister. So California, 142; State VS..
Herman, 70 Missouri, $40; Divine vs.
Commissioners. S4 Illinois, $50.
In case recently before this court, in
reference to the so-called Whitney act, it
was held that a provision providing a mode
OF criminal procedure in cases in the po-
lice court in certain class of cities, to-
wit, Oakland and Los Angeles, was void, ,
that law regulating criminal procedure
was general in its nnture and should have
uniform operation. The same case was
soon altar before the supreme court in
bank. and In its opinion this view of that
act was approved. In re Fife on habeas
corpus.
In reference to some cases cited from
other states, where different view is held.
1t IS doubtless owing to the fact that the
provisions OF their constitution differ from
those OF ours under consideration. At any
rate, the question has been so often passed
upon by the supreme court as to remove
any doubt on the subject that the so-called
lor md \