The San Francisco call., 1896-01-23

regulate the compensation of county officers,
for whose election or benefit it shall provide
whenever 1t attempts TO enact law for one
or more counties of the State on subjects that
II Is directed to provide for by general laws or
Whlch are to form part of uniform system Tor
the whole State, whether such counties are
designated directly by name or by reference to
class into which they have been placed
by other subjects of legislation, it in
irlnges these provisions of the constitu-
tlon. Referrlng to article 4, section 70, ana
arucie y, sections and 3. Section 25 OF artl-
Gle Al referred to reads. "The Legislature
snail not pass local or special laws in any OF
the following enumerated cases: that is to say
lenumerating thirty-two specific matters,
county and township business, or the election
ot county or township officers.)
:, SUBDIVISION II provides for conducting t elec
tlohS or designating places for voting except
on the organization OF new counties. ohpul-
vision 2S, creating Offices or prescribing me
powers and duties OF officers in counties a auu
c4tleS, cues and counties, township electIon'
or School districts and then adding the gem
erat subdivision SO. In all other cases WheIe
a general law can be made applicable. IN az "a
ultlon to these, it is provided in sectlon IL
article /, that land all laws OF a general ma
ture snail have a uniform operation. .,
In the brief filed by ex-District Attorney
Dlllon he admits that the act is general IN ltS
nature, but claims that the provisions are Wen
calculated TO prevent fraud at primary elec-
IlonS, and he claims that whether lhe Jaw can can
be made applicable 10 other counties than lhe
tfons Of fact of which the Legislature is the
exclusive judge, and that the Legislature eAer-
cised its Judgment in this case.
AS shown, our Supreme Court dlners from
the counsel in this resi- pect, and the convention
in adopting the provision OF the constitution
referred 10 considered this ques ton whether
it was one Tor courts 10 determine or the Legls-
lature.
AT the time this section in reference to spe-
cial legislation was under consideration peie-
gate Mcfarland, now one of the Justices OF the
Supreme Court, moved to strike out the
thirty-third subdivision, and said in support
of his motion: whenever a law is passed
bv the Legislature somebody Will take
it to the Supreme Court to see whether 1t Is
special or general. 1t is entirely unnecessary
and mischievOus. We don't want TO provlde
for any more constitutional law questions than
is absolutely necessary. The courts Will have
enough 10 do anyway"
Delegate Van Dyke-I agree with the gentle
man that this is a vicious amendment, and
can see no good purpose that it can subserve; |;
it will always raise the question in court
whether law could not have been made gen.
eral.
Mr. Larkin-It is rather remarkable that
these two distinguished lawyers should
raise an objection 10 this section. 1t
That section is the most important
section of this whole provision; it is true
principle of government, and whenever a
general law can be made applicable q special
law should not be passed.
And the convention ccncurred in the view OF
Mr.. Larkin and refused TO strike out the
thirty-third subdivision.
subsequently the same motion was renewed
and after debate in the same line shown the
convention again refused TO strike out the sub
division
This shows clearly that it was the sense oi
the convention 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 well as in one
or more.
of
claimed, is 10 prevent frauds at primary elec
tions and purify the elections, and clearly sucf
beneficial legislation in general law should
have q uniform operation throughout tht
State. No good reason can be assigned why
such a law should not apply to other counties
! than san Francisco and Los Angeles.
In Bloss VS.. Lewis, Al p r. 1881, it was hel(
! that provision in county government Law
that fixes fee for official services in COUNTIES
of the third class different from that OF othe
counties, violates the provisions OF the consti
tuition requiring laws of a general nature II
operate uniformity and forbidding local o.
special laws in all cases where a general Law
could be made operative
So also in Turner vs. SiSkiyou County, AZ T. r.
434 it was held that the provision in the count,
government act allowing witness in crimi
nal case before the Superior Court in countie
OF the twenty-eight class alone the same pc
diem and mileage as jurors was void Tor lik
reason. See also Miller VS.. Kister 6S CAL, 142
State VS.. Herman, 70 Mo-, 34O Divine VS.. Com
missIoners, 81 H.. $50.
In q case recently before this court, in refer
ence to the so-called Whitney act it was held
that provision providing mode of crimi ma
procedure in cases in the police eour
in q certain class of cities, to-wit: Oakla nd
and Los Angeles. was void. That ii law
regulating criminal procedure was general in
its nature aud should have uniform opera
ton. The same case was soon after 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 a different view is held it is
doubtless owing to the fact that the provisions
OF their constitution differ from those OF ours
under consideration. At any rate the ques-
ton has been often passed upon by our Su.
preme Court as to remove any doubt on the
subject that the sO-called primary election law
unGer consideration is unconstitutional and
void.
The remaining question is whether the in
junction is the proper remedy. In Schumacher
VS.. Toberman t56 Cal, 508) it was held
that every taxpayer In a municipality
may properly commence a proceeding to en-
join City Council from doing an act which
may result in addition to the burdens OF
taxation.
The same rule is held to apply in the case of
a taxpayer in county, McCord VS. Pike, 18th
n. E. 259; Calton VS.. Hanchett, 18th ILL.,, 6I6
Perry VS.. Kinneau, 42d Ill, 100 The demurrer
to the complaint will be oyerruled and the in
junction viii issue as prayed for, on giving the