The San Francisco call., 1896-01-23


business, or the election of county and town
snip officers. Observation-Disclosures for con-
ouctlng elections, or designating the places OF
voting, except on the organization of new
counties notwithstanding officers, or
prescribing the powers and duties of officers in
counties, townships, election or sch ool dis
trlcts AS the statute here under review deals
with subjects enumerated in said section 20, 1t
1olloWS that 1t is unconstitutional If II be loca!
or special But as it relates only to part OF
me territory and people OF the State, II IL IS
clearly local and special Earle VS.. Board OF Eu-
ucauon, % Cal, 4S9), unless there are some
other provisions OF the constitution and some
principle OF law applicable thereto whlch
taxes 1t out OF the category
There are two provisions in the constitution
which somewhat relieve the pressure against
local and special legislation. One IS sectlon D.
article XI-not particularly applicable mere
Which provides that the Legislature, lor tne
purpose OF regulating the compensation M oI
county officers, may CLASSIFY the couhIes ~
population and section OF the same aI tlGlo t
which provides that corporations tor munlcl,
pal purposes shall not be created by speclal
laws but the Legislature, by genera iaWs'
shall provide for the incorporation ana classl-
tication i'll proportion to population Vi cues
and towns, which laws may be altered, ameuu-
ed or repealed" Now, this court mas held thaI
when there has been classlncatlon, autnoi-
lied by the constitution of counties or munlcl.
pal corporations, q law which appIles 10 I'll oi
any one class is not invalid upon the grouno
that it is local or special.
subject has been liberal, it being heid that II
the classification be in other respects s1ch as
the constitution warrants, the 1act tnat only
one or two counties or municipalities are put
in a class, will not invalldate IL (Cody VS..
Murphy 80. Cal. 522). But II there must be a
classification, it must be genera IaW' Wnlcn
| of course. may be amended. And the classih-
! cation must include all the counties or muEl-
| cipalities Before 1888 the Legislature neg
lected the duty imposed upon II py the consul
! tuition to make such classification, and its
attempts before that time to legislate specially
! for municipalities were held invalid. desmond
VS.. Dunn. So Cal, 242. Earle vs. Board OF Edu-
| cation, 80 Cal, 4S9l.
! In Desmond vs. Dunn the court held that "Sec-
| tions and Z of article VI of the constitution
evidently contemplated the enactment OF gene
raj laws providing for all corporations, for
municiDal corporations and not for some only,
and such laws must be general as the sub
! ject to which they relate" In 1883 the Legls-
lature made classification OF munlclpaI cor
porationS as follows: "An municipal corpora
lions within the State are hereby classified as
follows: Those having population OF more
than 100000 shall constitute the first class
those having d population of $4,000 and not
exceeding 1000 shall constitute the second
class and so on 10 the sixth class, and this
classification has never been repealed or
amended. CThe Statutes ot 1888, page 24)
Since then this court by Temple, ]. c., SAID
'On this 5th day OF March, 1885, the Legisla-
ture did by a general law, as the constitu-
ton requires classify all the cities OF the State.
The class mentioned by the law in question IS
not one of those classes, but is q class created
by the act itself. l am of the opinion that this
cannot be done. Section of article XI was
evidently intended TO limit and not to enlarge
the power of the Legislature, and think that
it was intended that the classifea tion thus
authorized was to be by general law in the
same sense and in the same way in which it
was necessary to provide Tor the incorporation
and organization OF cities and towns. Leglsla-
ton in regard to such corporations would
thereafter be made by reference 10 the classes
thus IN made
Il think law in conformity with this special
permission OF the constitution must be law
classifying all cities of the State. law
amendatory of such law. 1t must have all
the municipal corporations classified"
Darcy VS.. Mayor of San Jose, 104 Cal. 642.
We see no distinction in principal between
that case and the case at bar. In that case, for
the purpose, no doubt, OF affecting the city OF
san Jose alone, an act was passed by which q
certain provision was made applica bic only to
''all cities containing population OF not less
than 10, 900 nor more than % 900, J." but there
was no such classification under the general
law. San Jose was in the third class, which is
constituted OF cities with population of more
than 10000 and not exceeding 10000, and
therefore the act in question in that case did
not affect all the cities OF the third class and
was invalid.
With respect to the case at bar there is nc
1 classification of cities or cities and counties
having 100000 or more Inhabitants" Cities
or cities and counties having that number Of
inhabitants are in the first class, which in
cludes "all municipal corporations
having a population OF more than 100 600 y
The statutes of 1888, page 81, and the act
here in question therefore does not affect all
the corporations OF the first class. Moreover,
there is an attempt by the act itself to create a
class for special purpose, without reference
to the existing classification by general law,
which was held to be unauthorized in Darcy
VS.. Mayor of San Jose. 1t is therefore local and
special and Tor that reason unconstitutional
and void.
We see no force in the point that the re-
spondent has no interest in the question here
involved. The act under which petitioner
claims being unconstitutional and void. there
is no law authorizing respondent to draw the
warrant and TO do the act demanded OF him
| would be to violate his official duty and oath
and subject himself TO liabilities and penal
! ties. Neither is there any room here for the
principle that separable parts of q statute
may be valid, while other parts may be
unconstitutional. All OF the parts of said Sec
tion 1915, under which alone petitioner claims
his salary, are alike involved in the vice OF
unconsututionality.
Neither is there any distinction with respect
to the point here involved between cities and
consolidated cities and counties. They are
both municipal corporations" And with re-
spect to the constitutional provisions herein
discussed, they are in the same category. Des-
mond VS.. Dunn, supra.
The views above expressed relieve US from
the necessity of determining the many other
important and serious objections made by
respondent to the validity of a statute here in
question. We hold that it is unconstitutional
and void for the reasons heretofore given.
The prayer OF the petitioner is denied, and
the proceeding is dismissed.
MCFARLAND, J.
We concur.
GARoUTTE, ].
HARRISON, j.