The San Francisco call., 1896-01-11
Judge Trout Holds He Is the
Real Superintendent of
Schools.
HE WAS LEGALLY APPOINTED.
Power of the Board of Education TO
Fill Vacancies Under the Con-
Solidati0n Act.

Judge Trout has sustained the demurrer
OF Madison Babcock to the suit of Charles
S. Young, in which Young endeavored to
have Babcock removed from the office Of
Superintendent of Schools and have HIM
self declared the incumbent
The suit was brought by the people upon
Youngs relation. The complaint alleged
that after the death of A. j. Moulder on
October IA, 1895, Young was duly appointed
to the office by the Board of Supervisors
on November a. 1895, but that since that
act the defendant, Babcock, had usurped
the office The demurrer to this complaint
was submitted by Babcock on the ground
that facts sufficient for a cause Of action
had not been stated In support of his de-
murrer the defendant cited the Legislative
act of April 81, 1865, which provides that
in case of a vacancy in the office OF. Super
intendent of Schools the Board OF Educa-
ton may appoint person to I'LL the,
vacancy until the next regular election
when the office shall be filled by the peo-
pie. The defendant coHtended that this
act had not been repealed and hence the
appointment OF Young by the Board OF
Supervisors was without warrant IN law.
Responding to this the relator, Young,
cited the county government act OF March
II, 1900. 1ulS ACT III SuDuIN1SlOl Il VI SCI
tion % says that the Boards OF Supervisors
of the various counties have the power TO
fill by appointment all vacancies which
may occur in any elective county or town
ship Office, except in those OF Judge OF the
Superior Court and Supervisor. Section
231 of this county government act declares
that all previous acts and parts OF acts IN
conflict with it are repealed
1t was argued by counsel for Young that
the county government act was a general
law and hence was applicable to the City
and County of San Francisco, to some eX-
tent at least, and that it conferred upon
the Board of Supervisors of this City and
County, as well as upon those OF the
various counties, the power TO appoint the
successor of a Superintendent of Schools
who dies before the expiration OF his term.
The question raised was, therefore,
whether or not the act for the government.
of counties applied in the City and County
OF San Francisco, or IN another form, the
old question of whether in the eyes of the
Legislature San Francisco is a city or a
county.
In commenting upon this point Judge
Trout says In his opinion:
The City and County OF San Francisco is a
continuation OF the old municipal corporation
known as the City of San Francisco by virtue
of the act OF April 10, 1856, commonly known
the consolidation act. This act defines the
boundaries OF said City and County and trans
ferred all the property and effects of both, the
said corporation OF the City OF San Francisco
ana the County of san Francisco, to the said
City and County, formed by the consolidation
of both The constitution provides that all
laws in force at the time of its adoption, and
not inconsistent herewith, shall remain in
force and effect until repealed by the Legisla-
ture. Hence the aforesaid consolidation act
was not repeated oy the adoption OF the con-
stitution in 1879. But ii is beyond dispute
that the Legislature has the power to pass
permanent law which VIII affect the charter OF
fy q D y wi tG ~
We find that the general provisions OF the
Political Code to the control of the City
schools by the Board OF Education are applica-
bic to this City and County, and that 1t is not
governed by the consolidation act alone.
The court then cites the duties of the
Legislature as laid down by the constitu-
tion, in making general laws for the gov
ernment of all counties and for the classi-
fication and government OF cities. In obe-
dience to these requirements, he said, the
Legislature passed the act of March 13,
1888, entitled, ''An act for the organiza-
ton, incorporation and government of
municipal corporations" and also the
county government act. The Supreme
Court, in reference to this act of March I3
1888, declared that it rested with the peo-
pie to determine by their votes if they
would organize under the act or frame
charter under the Fifteen freeholders'
clause OF the constitution, or by non-action
abide by the charter as it existed. Contin-
uing on the suggestion conveyed in that
decision, Judge Trout says:
AS ii appears that the aforesaid act of March
13, 1888, referring to municipal corporations
was held to affect this City and County only in
the event that the people of the City and
County should determine by their votes 10 be-
come organized Hereunder why should the
county government act of March 13, 1888, be
held to affect this municipality when no action
has been taken by the people in regard to such
act? Evidently it should not
/ IN cot fipA hot ho oFN
said subdivision 2l Of section % of the said
county government act should be construed as
conferring power to fill certain vacancies ONLY
upon the Board of Supervisors created by said
act, and not upon the Board of Supervisors
created by the consolidation act. Conse-
quently, Notwithstanding the views OF the
learned counsel who appeared for the plaintiff
! and who most ably and admirably urged their
construction of the statute, am of the opinion
! that the county government act in question
did not repeal the aforesaid act of April 27
1888, and that therefore the Board of Educa-
ton of this City and County still retains the
power to appoint person to ill n vacancy in
the office OF superintendent of Schools.
Accordingly the defendants demurrer is sus-
tanned, without leave to plaintiff to amend the
complaint, and Judgment Will be given in
fpt-n Of hp ont