The San Francisco call. [volume] (San Francisco [Calif.]) 1895-1913, 1896-09-17
Chief Justice Beatty and Justice
Temple Dissent From This
View.
SOME OPPOSING CONSTRUCTIONS
Summary of the Reasoning Which
Has Led the Justices Very
Far Apart

The decision Of the Supreme Court con-
corning the tenure of Offices in the City
and County of San Francisco was handed
down yesterday. The opinion was written
by Justice Harrison and was concurred in
by Justices Mcfarland, Henshaw, Van
Fleet and Garoutte. The following Off
GERS under this decision will hold over
for the term of four years:
District Attorney.
County Clerk.
Sheriff.
County Recorder.
Coroner.
Public Administrator.
Concerning other officers it was held
that their term of office land also of the
Judges of the Police Court and of the JUS
tees of the Peace who were elected at the
general election in 1894 has not been
changed by the county government act,
and that an election for their successors
must be held ut the coming general cleo
tion."
A dissenting opinion was fled by Justice
Temple, in which Chief Justice Beatty
concurred. The essential parts of the dis
senting opinion are con tanned in the fol-
lowing extracts:
I'VE cannot, therefore, select certain Of
fcers and say that they are county officers
and of others that they are city officers,
for all are municipal officers and munich
pal officers only. Therefore, If it be true
that the Legislature cannot in this mode
change the terms of the officers of the
municipality, because that would be to
alter the charter, this law can have no APP
plication to the City and County of San
Francisco. In my opinion the
Legislature did not intend to ordain that
some OF the officers should hold Office for
four years and others for two. there being
no reason for the difference"
The reason given by the majority of the
court for their conclusions is summed up
concisely in the following paragraph:
THE District Attorney, Sheriff, County
Clerk, County Recorder, Coroner and Pub
lie Administrator are officers whose powers
and duties are given by the county gov
eminent act, or by other general laws,
and do not derive any authority from the
consolidation act, or exercise any function
in the municipal government OF San Fran
cisco. These officers are, therefore, county
officers, and their term of office, as well as
the time of their election, are those pro-
Vided by the county government act"
The case, which will De historical, was
entitled, julius Kahn. appellant, VS..
Adolph Sutro ct al, respondents. The
point at Issue is thus stated:
The plaintiff brought this action TO restrain
the Board of Election Commissioners of San
Francisco from calling an election for City
and County officers at the coming general cleo
ton and from mourning the expenses attend
ant thereon, claiming that under the provi-
sions of the county government act of 1898,
as construed in the case of Hale VS.. McGetti-
gan, recently decided, there can be no election
for such officers until the general election in
1898. Judgment was rendered in favor of the
defendants upon demurrer to the complaint,
and the plaintiff has appealed therefrom.
The question presented for determination is
whether the above act OF 1898 applies TO the
City and County of San Francisco, and the de-
termination OF this question depends upon the
ton to the other portions of the State
whether 1t is TO be regarded as a city or as &
county. One feature by which q city is dis
tinguished from county, in this State is the
source from which its authority is derived.
The powers to be exercised under a county
government are conferred by the Legislature
irrespective OF the will OF the inhabitants of
the county. whereas the inhabitants of city
are authorized to determine whether they will
accept the corporate powers offered them, to
be exercised by officers OF their own selection.
In Hamilton County VS.. Mighels q Ohio
st. 109), the distinction between these two
bodies was given in these words: Municipal
corporations proper are called into existence
through the direct solicitation, or by the Tree
consent, OF the people who compose them.
Counties are legal subdivisions of a State,
created by the sovereign power of the State, of
solicitation, consent or concurrent action of
the people who inhabit them. The former
organization is asked for, or at least assenled
to, by the people it embraces; the latter is
superimposed by sovereign and paramount
authority"
The court discussed the attributes of
"The City and County OF San Francisco"
finding that the attributes of both city
and county are recognized by the consti-
tuition; that geographically it is one of
10 lonol aT.h vi IF ha tot ~,
that respect is recognized as one of the
counties of the State; and that politically
it is considered by the constitution as a
municipal corporation. The history of
legislation from the act passed by the
Legislature, at its first session, after the
adoption of the constitution, known as the
Mcclure charter, purportlng to provide
for the government of San Francisco, was
reviewed, and the view was held that:
1.-THE charter of San Francisco is made up
of the consolidation act and the amend
ments thereto, together with such other
statutes relating to the government of the
City and County, or comforting powers
upon its officers, as were in force at the
adoption of the present constitution"
Concerning the creation of San Fran
cisco and its status the court was of
opinion as follows:
The City of San Francisco was created and
its limits defined by the act of April 10, 1850
kOldlS OF lcOUy y. @1OI anu section 4 OF InaI
act declared that 1.-The Inhabitants of the City
of San Francisco, within the limits above de-
scribed, shall be and they are hereby consti-
tuted a BODY polite and corporate in fact and
in law, by the name and style of the City of
San Francisco" Section of the act OF April
10, 1856 Stats. of 1856, p. 145), commonly
Known The consolidation act, by virtue of
which the present corporate character OF San
Francisco exists, declares, 1.-The corporation or
body polite and corporate now existing and
known as the City of San Francisco shall re-
main and continue TO be a body polite and
corporate in name and in fact, by the name of
The City and County of San Francisco. etc"
The effect of this legislative action was
merely to continue with extended boundaries
and additional powers the City of San Fran
cisco, which had been Incorporated in 1850;
and, although the provisions OF the eharte
were, in many respects, appropriate Tor a
county, the corporation thus created remained
a city under a different name, but the inhabit-
ants of the territory thus brought under the
provisions of the city charter were not in
vested with county. government. people VS..
Supervisors, 81 cal. 66s; Wood VS.. Election
Commissioners, 90 Cali. 561.) Section 8 of
article XI of the constitution, as originally
adopted, provided that any 'city" containing
a population of more than 100000 inhabit-
ants might cause a freeholders charter to be
framed for its own government.
Under this provision of the constitution the
In hoh of Car Fra tad ROa ri