2
NEW CHARTER UPHELD BY SUPREME COURT.
clnrts shall be sufficient "to make the number
of votes polled at any one precinct to be not
mora than two hundred, as nearly as can be
Hscvrtained," Is not to be regarded as Jurlsdlc
tior.a.l, but Is merely directory. -The concluding
clause, "as nearly as can be. ascertained,
Bhows that much It left to the discretion of
the board; and, In the absence ■•■< any show-
Ins that by reason of a failure to observe this
direction the mesa of the election or the
completeness of the vote was affected, the act
of the board in making the consolidation must
be upheld The finding, of the court that at
leapt one week before either election was held |
n written notification was mailed to each and
every elector In the city and county whose j
name appeared upon the register. Informing
luni specifically of the exact location of the
poll Inj; place In his ppednl election precinct,
and enclosing therewith a sample of the ballot
t.-i he used at said election, takes away all •
claim of any want of notice to voters. it Is
not claimed that the board acted in bad faith,
or that any citizen was deprived of his vote,
the only claim being that by reason of the
registered vote within each of said precincts
being; much greater than two hundred, the
board must be presumed to have abused Its
discretion In consolidating the precincts In the
manner '■ did.
We need not determine whether this pro
vision in section 1129 is to be construed as re
quiring the registered vote to he the criterion
for fixing the extent of the precincts, or
whether the board had the right to fix their
extent upon its estimate of the number of
registered votes which would be polled at the j
election. The wording of the section Is such :
that the board mieht act In (rood faith in mak- j
Ing the number of precincts such as In their j
opinion would make the number if votes which
would be polled at each precinct pot more than
two hundred. It was competent for any citi
zen, If he deemed the boundaries of the pre
cincts to be In violation of this clause In the
section, to seek their correction prior to the
ejection^ He ought not after the election has
taken place to b' 1 allowed to Impeach it upon
this pround alone, unless he can show that by
reason thereof a fair election was prevented.
There Is no express provision In the act Of
to^iH^Bi^iMi^m't".' r, to be had
r special elec-
and a con-
, ■ of th»
act leads
the conclusion
such regls-
Is not au-
■. } Section
1 " of the net re- I
the Boards I
Precinct Reg
tlon to meet |
g five
days h"for<> the flay fixed for this act for the
cessation ct registration of electors In said
city and county, and to sit in open session
from 3 o'clock a. m. of »ach lay until the day
Of such cessation. " and by section 12 they are
required to continue registration of voters
within their respective precincts "until the
time provided by law for registration to
cease," and by section 24 to deliver the pre
cinct reelsters to the Registrar "not later than
three full .lays after the cessation of registra
tion, a* provided by law." Section 2S declares:
"Fifteen days before a general election all
registration or enrollment of voters shall
cease, and the precinct registers as they stand
Fhall be the precinct registers for said ensuing
election and until the next general election."
subject only to chances in certain cases: and
Bt the close of this section It Is provided that
changes and additions to said precinct regis
ters for use at other than general elections
Jiiay be made after the general election, and
prior to any special election, "under the reg
ulations fixed hy the Board of Election Com
missioners."
I'nder a proper construction of these provi
sions registration for a peel a] election is to
be made under regulations fixed by the Board
of Election Commissioners, and need not be
ir.a.ie in the several precincts. The provision
in section 33 that th» additional names shall
be "noted upon the reglsti-r for each special
flection thereafter, or add.d In supplements
thereto, nnd confirmatory so far ap the same
Is nppltcahle to the provisions of the law gov
f-rninz the making of the general election reg
ister." hns reference to the manner of prepar
ing the precinct registers for use at the »p •
cl.il elections, nd not to the mode of registra
tion. The provision in this section that after
the voter has been Wally registered In the
pre.-in<n register he may vote i n such precinct
at any election taking place before the next
general election was for the pun»>se ■I' giving
Mm the right to vote at such election without
renewing his registration, nnd not for the pur
pose of defining the place at which be should
vote. His right to rote in the same precinct
Is- subordinate to the right of the Board of
TTl'Ttlon Commissioners to consolidate that
precinct with others, and Is not Impaired by
Fuch f-r.larKement of its boundaries and fixing
n different polling-place within the boundaries
thus extended.
A consideration of the spirit and object of
ihe act of ISTS leads also to the same conclu
sion. The main purpose of the act. as shown
by Its provisions, was to secure a full leglstra
tlnn of the voters of the city, With as little in
convenience tn them as was practicable. For
this purpose the act provides an extended pe
riod for registration at the "ft •■ of the Regis
trar, within which voters may be enrolled, and
that at the close of this pt-riod those who hare
been unable to avail themselves or this oppor
tunity may resort/to some designated place
within thMr respective prvcincts, and there be
registered. To still further accommodate the
voters, they are not required to present them
selves for precinct registration within th* usual
hours for public offices, but the act provides
that the Boards of Precinct Registration shall
Fit in open session each day of their session
until in o'clock p. m.
It must be assumed that in this mode the reg
lMratlonfor^ajrenera^electlon will contain the
H names of all who
H are qualified to
■ vote, and. as the
■ registers thus pre-
H pared Tor use at
H the general elec-
H ttnn are to be used
■ at all special elec
■ tlons that may be
■ held before an
■ other general eIec
■HHHHIIIIIIIIIIIIIIIIIIIM tion, with such
additions as may be made thereto, there is no
manifest reason for requiring precinct registra
tion in connection with any special election
and, In the absence of direct provision therefor'
it should be held that It la not required. The
fpw .changes or additions that may be desired
ar» readily to be made at the office of the Reg
istrar under the regulations of the Board of
Election Commissioners..
The omission of the Board of Election Com
missioners to appoint for each precinct as many
officers of election as it was authorized to ap
point (a proposition upon which we pass no
opinion) does not authorize the election to be
erl aside. Such mission was but an irregu
liritv. and it is not shown that It had any
effect upon the election, either in the number
of votes thftt are cast, or In the correctness of
their canvass and return.
• The Judgment and order are affirmed
Harrison, justice.
AVo concur:
BEATTY, Chief Justice.
' -HKVSIHW
■*• — *
For Registration
and
Special Elections.
4 +
♦ , +.
1
No Reason to I
Disturb
The Charter.
4. 1
ANOTHER WAY
TO THE SAME
CONCLUSION
in Mfir.K.
M. V. FragleT, plaintiff and appellant, vs
BIG FLOODS
of orders followed our last week's announcement Apologies extended
those who were delayed. Additional teams and help insure dispatch now
• Goods and prices for this week, as below, merit equal attention. Do
not miss this buying opportunity.
WASHOUTS.
SUGAR — , Extract of Beef. Cudahy's star brand. 2 oz jar
Spreckols' fine dry granulated (limit *2), p..*^ Jar V-' 'V VV. ......"... 35
21 lbs $100 Cocoa - Stollwerck'B best German. 1-lb cans, sr,c;
. Hongkong dry granulated, only in'ieo-'lb s.J'J.. 0 ! 11 ?.""''! VV •••• 30
!. sacks • ' ' 475 Saralnes, 4 tins, imported, for 25
Special Golden Coffee 'sugar! 'sweet '"lbs 106 'S'oj !( j Eastern. choice. guaranteed sound.
oor^n ',g
FLOUR — Prp ' d ln srirne Places as California Ranch.
Any best brand In market, bag 87% c; SOAP —
' O U r b So^on'^r;' b ' a g'7ocrb'arre'i:: $ i 5 B °o "^S^rSf bars brown BOap - „
One bag whole - wheat flour, or Graham. co ; Cream Savon. Jumbo size.' none" finer 05
Our Mothers 50-lb sacks .89 1 Fancy bars, double wrapped, ™:"": 02
RICE — Coffee, our millionaire 40c grade, special this
. Fair. No 3in quality, 8 lbs 25 Tea, our ROc Mara viiia Ceylon' "none finer" Rri°
Fancy Eastern head rice, per lb 6', I clal this week to try .. "
new crop- s To w^i. a K,?"^r:.'™^:.^*ir^! 1Ik 2 !
■ Raisins, In bulk, -lean and good. 4 1b5.... 25 RESERVED
Sunta Clara prunes, per lb 03 »■ u» * .
Walnuts. pap»r-?heli, per lb 20 . Rlßht reserved to limit quantities above to or- !
Almond!!. p3per-thell, per lb 15 ' llnnrv family requirements.
. Citron, I«emon and Orange peel, per lb.. 13 I Free delivery city and three times dally across
berries, few more Cape Cod. gallon.. 25 i tne b * v In any quantity. Ask for price list
French Peas, per tin.. 12U gale of rubber shoes, dress goods hams
Only lot new Baby Tooth Corn In city. sateen*, hosiery and other wearing 'apparel ad
per tin..... 09 vertlsed continues this week. w a "
. New pack, gallon tins, tomatoes 19 tfi fpticivp -mm
. Pure food Jams in large glass jar., our TELEPHONE 1840.
pack 10
New peaches, delicious, whole, per lb 03 '
Pur», fresh, sweet lard, 10-lb tins 85 ; ' L'^ !*JS B 8 B WWW *
Eas-t^rr rolled oats, fr.-sh. 11 lbs 2"i ! t>c''A» BJ^cBI TM&k
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10-lb Mirkp whole wheat or graham flour.. 17 Jitf ffi r A Q Hwe \_BF
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• 5 gallon tins American salad oil 290 /f"^ Ak A 9 ■ '^fxibhi jT%. b««v m*
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Salmon In half-barrels, new, choice 400 j * »^*» «B %& 0 %Jf fT 8.
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James D. Phelan ft al., defendants and re
spondents:. Fan Francisco, No. 8048,
This is an action brought by a taxpayer by
Injunction against the Board of Election Com
missioners and other municipal officers of the
city and county of San Francisco to restrain
the expenditures of certain public moneys for
the conduct and carrying on of an election in
said city and county. The primary and direct
purpose of the litigation Is to test the validity
of the new charter of the city and county of
Pan Francisco, which is to take effect January
1. 1900.
The State Legislature of 1897 placed upon the
statute books an act which may be called "The
Charter Election Act." it is entitled "An act
in relation to elections held under the authority
of section 8 of article XI of the constitution,
to elect Boards of Freeholders or to vote upon
proposed charters or upon amendments to ex
isting- chartcrv" The election to secure a
Board of Freeholders In this city to draft a
charter and the election subsequently held to
ratify the action of that Board of Freeholders,
were" held under the aforesaid act The man
ner of holding and conducting these elections,
while in strict conformity with the act, was
widely at variance with the provisions of the
general law as to the manner and conduct of
holding elections "in the city and county of
Han Francisco; and It Is now claimed that
these elections as held were absolutely void by
reason of the unconstitutinnaltty of the statute
under which they were held, and that the elec
tions |.«lnp void, therefore the new charter 13
a void and barren Instrument.
The parties now attacking the constltutlonal-
Ity of this act of the Legislature rest the entire
results of the litl-
gatlon upon that
H: attack, conceding
I ' in open court that
they have no cms-
j If that statute be
a valid and con-
BtltutlonsJ law.
; They Insist that
H. the act Is uncon
■4- stltutlonal In this
Some Points
of the
Legal Attack.
that It is vlola
tlve of section 6 of article XI of the constitu
tion, of -the State. That part of section 6 arti
cle XI of the constitution here directly In
volved reads: "Cities and towns heretofore or
hereafter organized and all charters thereof
framed and- adopted by authority of this con
stitution, except in municipal affairs, shall be
subject to and controlled by general laws." It
is • now claimed that thes? two elections, to
which reference has already been made were
"municipal affairs" within the meaning of the
constitution, and therefore, not subject to and
controlled by general laws, in this connection
It Is then claimed that said act of 1&97 is a
general law attempting to deal with and con
trol "municipal affairs," and for that reason
vlolatlve of this constitutional prohibition. As
a second contention it is asserted that th!»
statute Is special legislation and also lacking
in uniformity of operation. We at once pass t.i
an examination of these constitutional objec
tions.
The solution of the questions thus presented
largely revolves around the meaning of the
v ■ r«ls "except in
H m v n 1 c I pal a: -
H'.l:> " as these
are used in
h e constitution
H': (he State. The
Hi'hrnse formed by
1 words has a
Hni';u'i!'!>; and a
H:>- st significant
■nnr. This is ap
|l';n'"!U when We
pause a moment to consider that this single
phrase forms the subject-matter of an amend
ment to the constitution of the State. The
relationship existing between a State and it*
municipalities Is bo close that it may be said
every city ordinance and every State statute is
a matter of interest to both State and municipal
ity. It may be said that all State affairs are a
matter of substantial interest to the mu
nicipality, nnri that likewise all municipal af
fairs ire a matter of concern to the State.
Yet those interests are Identical and Indirect,
and the meaning of this phrase necessarily
takes a narrower scope. Indeed, in the very
wording of the constitutional provision itself
we find that all matters of legislation per
taining to and bearing upon municipalities do
no' come within t'«? significance of the words
What Certain
Words
Really Mean.
"municipal affairs. " as used in the constitu
tion. A mere glance at the provision demon
strates this fact. The constitution provides
that cities and towns, "except as to municipal
affairs." shall be subject to ..n 1 controlled by
general ':.■' It Is I ere plainly indicated that
a" vast amount of legislation pertaining to
cities and towns dees not come under the
classification of "municipal affairs."
For the purpose of setting at the true sig
nificance of these words then Is no brighter
light to he shed upon them than I? disclosed
by a consideration of the reasons which moved
the legislature to propose the amendment and
the pei.ple to adopt It. What was the evil to
be remedied? What was the good to be gained
by this amendment? The answer Is common,
everyday history. It was to prevent existing
provisions of charters from being frittered
away by general laws, which would repeal
these provisions by Implication. It was to en
able municipalities to conduct their own busi
ness and control their own affairs to the full«s.t
possible tent in their own way. I; was en
acted upon the principle that the municipality
itstelf knew better what it wanted and needed
than did the State at large, and to give that
municipality the exclusive privilege and right
to enact direct legislation which would carry
out and itisfy its wants and neefs. These
are a few of the reasons wnich give
occasion for this concise but all-significant
amendment to section 8 of article XI of the
constitution of the State. This amendment,
then, was Intended to give municipalities the
sole right to regulate, control and govern their
internal conduct independent of general laws;
and this internal regulation and control by
municipalities form those "municipal affairs"
spoken of in the constitution.
Municipal affairs, as those words are used
in the oraitnic law. refer to the Internal busi
ness affairs of a municipality. It was the in
ternal business affairs of municipalities then ex
isting and those of municipalities to be here
after created that the constitutional amend
ment was framed to meet. There Is absolutely
no sound reason why Freeholders' charters
should not be framed and ratified under gen
eral laws. There Is a multitude of sound rea
sons to be urged why the conduct and pro-
lure of elections for the election of Free
holders and ratification of charters should be
held under general laws. No Bound policy ex
ists demanding special legislation upon such
a subject-matter. As far as there has been
given us light to nee, neither the Legislature
nor the people ever thought of such a thing as
the adoption Of charters when they placed the
words "municipal affairs" in the organic law.
In defining the phrase "county affairs" the
court said In Hawkins vs. Mayor, 84 N. V.. 22.
"County affairs are those relating to the county
in It? organic and corporate capacity and In
cluded' within Its governmental or corporate
powers." Tested by this rule elections held as
preliminary steps toward the creation of a
Freeholders' charter are not municipal af
fairs.
The city and county of San Francisco Is a
municipality. The municipal affairs of this
B^B^B^B^B^B^B^B^B^B^B^B^BJ municipality are
■ a multitude, cor
■ f-rlng its business
■ trans actions.
■ These business
■ matters are the
■ municipal affair?
■ of the present mv
■ nicipality, but th*
■ drafting an 1 rat)
--■ ficatlon of a new
■ charter Is not one
The Will of the
People
Must Prevail.
THE SAN FEA^CISCO CALL, TUESDAY, OCTOBER 24, 1899.
of Its business .matters. The conduct of the
present municipality's business affairs has
nothing to do with the question of the creation
of a new municipality. The new municipality
will have municipal affairs of its own after it
Is created, and not before. The old munici
pality performs its functions when it ( \rries on
the business intrusted to It. A* a mi (clpallty
It has no voice In saying whether or ot there
shall he a new charter. In that ms .ter It is.
wholly passive. If its inhabitants sny to It,
"Stay with us yet a while," it slays. ; If they
Bay, "Your days are ended; you have outlived
your usefulness; stand aside." it makes no pro
test. The decree of the people Is its will. A
municipal affair pertains to something ..which
may be done by the municipality. The creation
of a new charter is a matter not placed in the
hands of the municipality, but in the hands of
the inhabitants thereof, with the consent of the
State. *
As the Legislature alone has the power to
approve a charter, it Inherently, in . the ab
sence of constitutional prohibition; must have
th. power to prescribe the terms, conditions and
mode upon which it will give its approval; and, !
If an election la made necessary by the consti
tution as a condition precedent to the validity
of the charter, the legislature has -the power
to say what shall be the nature of that elec
tion, and how it shall be conducted. And such
power it gives It the right to • say how* many
voting precincts shall be used upon election day.
and what shall be the manner and time for
registration. ,
Viewing this question from another angle. It
seems that the creation of a charter is not
■JPJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ • . sontiai'.y a " 1
Hal":'.'- a municipal
■ aiTulr. It is a
■ State affair, and
H that fact Is rec-
Hcpnized in unmls
■ takable terms by
■ the State when
■ the constitution
■ demands that the
Bsi,'.;- Legislature
approve the In
strument by a majority vote; and until such
approval it has no life. Notwithstanding all
the people of the municipality with a single
voice may ask for a new charter, yet the
State, by and through its Legislature, may
deny that request. The Legislature stands as
the representative of the sovereign power of
the State, and has the arbitrary right to grant
or refuse charters to municipalities. A grant ]
of a charter to a municipality is a grant of
no such power. It la a delegation of a certain
amount of power to the municipality
theretofore vested in the State. It la
a parting with a portion of its sover
eignty. It la for this reason that the
State through Its Legislature must breathe into
the charter th% breath of life; and If the State
withhold its breath such action Is beyond all
review. When the constitution vested this om
nipotent power in the Legislature, it would
seem that the frarners of that Instrument
deemed the creation of a municipal corporation
a State affair of the greatest import.
In speaking of the general principle here in
volved Judge Conley says, in People v. Hurlbut.
24 Mich., 14: "There is no doubt of the right
of the State to do any of these things; not by
virtue of any general authority to take to its -if
the management of the local concerns, but be
cause the Inauguration and modification of
local government ran only be provided for
without confusion and Injustice by the aid of
the guiding and assisting hand of the authority
that creates and modifies. The right In the
State is .i right, not to run and operate the
machinery of local government but to provide
for and put it In motion." This seems to be
the very principle recognized by the framers
of the constitution and carried into effect by
the aforesaid amendment to that instrument.
And it may well be said that while general
legislation as to municipal affairs is there pro
hibited, yet. at the same time the very same
Beet ton ot the constitution reserves to the State,
not the right "to run and operate the machin
ery of local government," but the right to pro
vide for and put the machinery Into motion.
In •■ pie vs. City of Oakland, 123 Cal., 604, It
is held that a general law providing for the
manner of annexing adjacent territory to a
municipality did not deal with "municipal af
fairs," and was, therefore, without constitu
tional objection. It would seem that the add
ing of adjacent territory to a municipality and
bringing the Inhabitants of that territory with
in the government of the municipality was a
matter of great moment and interest to the
municipality. Yet it was held not to be such
a municipal affair as contemplated by the con
stitution. Thip court there said: "As the
Legislature alone has the power to authorise
such annexation, it must have the power to
prescribe the terms, conditions and mode of
annexation." This language applies with full
force to Che question under discussion In the
case at bur.
The charter act of 1*97 Is neither special legis
lation, nor does It lack uniformity of operation.
_________________________________ The title of the
H act Itself stamps
■ the law as gen
■ eral legislation.
H The title purports
H upon its face to
H deal with a class
■of municipalities
H created by section
■ s of article XI of
■ the constitution.
ijIJIJIJIJIJIJIJIJIJIJIJ Legislation bear-
Ing upon a constitutional class of municipali
ties Is not special legislation. The authorities
In this State without exception bo declare the
law. Again, the act applies to all municipali
ties that are authorized to adopt freeholder
charters. Such municipalities Intrinsically
constitute a class In themselves and probably
even in the absence of constitutional classifi
cation could be dealt with by general laws,
but In view of the constitutional classification
It cannot be denied for a moment but that
legislation relating to such a class Is both
general and uniform. iMintr.er vs. Schilling, 117
Cal., mi. > .
It Is not a light thing to set aside an act
of the Legislature, and the rule Is elementary
that, unless It is perfectly plain that such act
is vlolatlve of constitutional provisions, a court
will uphold It. With the policy of the legislation
found In the act the court has nothing to do.
This legislation may be wise or unwise. That
Is a matter with which the court has no con
cern. It Is for us alone to deolare the law
void or valid and that declaration must rest
upon the test, namely. Is this act clearly viola
tlve of some constitutional provision? In other
words, the real question here Is. Does it plainly
and clearly appear that these two elections con
stituted "municipal affairs," within the mean-
Ing of these words as used In the constitution?
In view of what has been said, we are not
prepared to make that declaration.
The judgment and order are afllrmed. '
We concur: GAROUTTE, J.
VAX DYKE. J.
McFARLAND, J.
t— : — ♦
The Charter Was
Created
by the State.
■
4 1
4 <•
No Reason to
Disturb
The Enactment.
* i
THE COUNTY
OFFICIALS
MUST ALL GO
In Bank.
Henry S. Martin r-t al., appellants, vs. The
Board of Election Commissioners of the City
and County of Pan Francisco et al., respond
ets. B. F. No. 1974.
This action is in some measure connected
with that of Fragley vs. Phelan, S. F. No. 204,.
involving the validity of the Freeholders' char
ter. Just decided.
In the complaint of the plaintiffs it is stated:
"That this action is not designed or intend
ed to impeach the validity of the said charter
in any respect other than to have it adjudged
herein that the provisions of said charter, con
cerning the county officers of said city and
county of San Francisco, are in open and fla
grant conflict with the constitution of the
State of California, are an invasion of and an
infringement upon the sovereignty of said
State, are a revolutionary usurpation of power,
and are a palpable violation of the law adopted
by the Legislature of said State, in obedience
to the constitution, and entitled. "An act to
establish a uniform system of county and town
ship government,' approved April 1, • 1857."
A demurrer to the complaint was sustained by
the court below, and plaintiffs declining to
amend Judgment was entered In favor of the
defendants, from which Judgment this appeal
Is taken.
The provisions of the Freeholders' charter
concerning the so-called county officers in
whose behalf this action is prosecuted were
Inserted in said charter In pursuance of the
amendment to article XI of the constitution,
concerning counties, cities and towns, and Is
entitled section * : 2 , adopted in 1896. By that
amendment It in declared: "It shall be com
petent, in all charters framed under the au
thority given by section 8 of article XI of
this constitution, to provide. In addition to
those provisions allowable by this constitution
end by the laws of the State, as follows: 4.
• • • "\Vher« a city and county government
has been merged- and consolidated into one
municipal government it shall also be compe
tent in any charter framed under said section
8 of said article XI to provide for the manner
In which, the times at which, and th» terms
for which the several county ofilcers shall be
elected or appointed, for their compensation,
and for the number of deputies that each shall
have, and for the compensation payable to
each of such deputies. •
By the act of the first legislature dividing
the State into counties, passed February 18,
b^b^b^b^b^b^b^b^b^b^b^bb l^A the County
■ of San Francisco
■ was bounded on
■ the north by the
■ San Franelsquito
■ Creek, and from
■ the head of said
■ creek due west
■ to the ocean, an.;
■ three miles there
■ In; and on the
■ northerly end in
cluding all or tne present city and county
counties lying to the south being Santa Clara
and Branclforte; the latter was chanced sub
sequently to the county of Santa Cruz. » *
At the name session of the Legislature an
act was passed, April 15, 1850, to incorporate
the city of San Francisco. The southern boun
dary line of said city, as thus • incorporated t
waß two miles distant from the center of
Portsmouth square, and "parallel to the street
known as Clay street," and the western boun
dary was a line a mile and a half in a west
erly direction from Portsmouth square, "and
parallel to a street known as Kearny. street."
The act provided for a : complete organization
and a full set of officers for the city, inde
pendent of the county officers of the county of
San Francisco. The acts creating the county,
and also the city, were amended at subsequent
t r
How the Counties
Were
First Created.
— _ f
seßsioDS of the Legislature, and, April 19. 1856.
an act was passed "tv repeal the several char
ters of the city of San Francisco, to establish
the boundaries of the city and county of Pun
Francisco and to consolidate the government
thereof." By the first section of said act it
is> provided that "the corporation or body poll
tic and corporate, now existing and known as
the city of San Francisco, shall remain and
continue to be a body politic and corporate In
name and in fact, by the name of the city and
county of San Francisco, and by that name
shall have perpetunl succession, may sue and
defend in all courts and plac.-s, and in all
matters and proceedings whatever, and may
have and may use a, cummon seal; an 1
the same may alter at pleasure, and may pur
chaso, receive, hold and enjoy real and per- |
sonal property, and sell, convoy, mortgage and I
dispose of the same for thS common benefit."
By the second section it is provided that "the
public buildings*, lands and property, all rights
of property and riphts of action, and all
moneys, revenues and Income belungins or
appertaining either to the corporation of the
city of Pan Francisco, or to the county of San
Francisco, are hereby declared to be vested
in, and to appertain to, the .;ald city and coun
ty of San Francisco; and the moneys in the
treaesury of said city, and in the treasury of
said county of San Francisco, and all the reve
nues and Income from whatsoever source aris
ing, including delinquent taxes upon persons
and property appertaining to the t-ald city or
to the said county, shall be handed over, paid
and received Into the treasury of the city and
county of San Francisco as a part of the gen
t-ral fund."
The boundaries of the new municipal corpo
ration designated as the city and county of
S a n Francisco
were fixed as at
present, and there
was formed out of
the southern por
tion of the county
of Sun Francisco
the county Of Ban
Mateo, and the
eighth section of
the act dividing
1 "t
City and County
Made
One Corporation.
| 1
the State into
counties, providing for the formation of the
county of San Francisco, was repealed. It waa
further provided in said act that the existing
provisions of law defining the powers and
duties of county officers, excepting those relat
ing to Supervisors, so far as the mime were
not repealed or altered by Bald act, should be
considered an applicable to the officers of said
city and county of San Francisco, and among
the enumerated officers to be elected for said
new municipal corporation were, In addition to
purely city officers, the officers formally desig
nated as county officers.
From the passage of the consolidation act to
the Constitutional Convention of 1878-9, the
city and county of Sen Francisco had been a
subdivision of the State, and as such, and by
that name and style organized and existing
as a body' politic and corporate. Its charter—
the consolidation act— had been added to and
amended, but the general form and substance
of the municipal government had not been
changed. And sine* the passage of the con
solidation act the county of San Francisco hnd
ceased to exist as a body politic or corporate,
Independently of and separate from the mu
nicipal corporation created by that act, and
known and designated as the city and county
of Pan Francisco.
One of the contentions on the part of the ap
pellants la that although the former city and
county were con
■♦ 4- soltdated t h •■> v
were not "merg
ed" within the
meaning of the
constitution. As
already shown,
the consolidation
act repealed the
various acts ere-
"Merged" as Meant
by the
Constitution.
4. L.
Ing the charter
of the city of Pan Francisco, as well as the pro
visions of the act creating the county of San
Franrisro: anil nil the funds and property of
every kind theretofore belonging either to the
rity or county became vested In and belonged
to the new municipal corporation knowji a* the
city and county of San Francisco. It would
ELATED OVER
THE DECISION
ON THE CHARTER
Great Republican Vote
Now Assured.
There was great rejoining- at Republi
can headquarters ln?t evening over the
newa thai the Supreme Court of the State
had sustained the new charter of San
Francisco. The chairman of the cam
paign committee remarked that the de
< isi<m would add 5i»M) names to the Repub
lican roll of voters.
The decision of the court clears the
political atmosphere. All doubt as to the
validity of the charter has been removed.
Pending the decision a little coterie of
demagogues without known political
principles assumed Borne sort of proprie
torship of the charter, but the court
knocks the last prop from under the pre
tended ownership. The charter now be
longs to the people. It is true that the
Intelligence and patriotism of Republi
cans were Invoked in tin- framing of the
charter; that Republican districts gave
the organic act the largest majorities, and
It is true likewlst that the charter was
ratified by a Republican Legislature.
Nevertheless, it now belongs to the whole
people, bearing in this respect the same
relation to the community that the consti
tution of the United Btates bears to the
whole country.
At th polls on November 7 the people
will-elect officers to administer atfairs of
government under the local constitution.
The party that succeeds at the polls will
1»- held responsible for th«- administration
of the city government The Republicans
have put forward Horace Davis for the
honor f serving .is the tlrst Mayor under
th.- new charter. The Democratic follow
ers of the Committee ol One Hundred
have placed James D. I'hrlan in the fteld
for the Mayoraltj and the People's party
enters the municipal contest under the
leadership of Dr. Cleveland. Democrats
an- divided in their allegiance. Some es
pouse the cause of Phelan and olhers Sup
port Cleveland. The Republicans are
solid for Horace Davis. There was some
wavering before the decision of the co'irt
was handed down, but now all Republi
cans appreciate the importance of the
contest and will lend their energies to
elect Horace Davis and the entire Repub
lican ticket.
The Democrats are divided now, but
trades may be made before election day
which will bring many of the wavering
Into line. Phelan and McNab counted fio
confidently on non-partisan and Repub
lican support that they did not, in mak
ing up the ticket, consult the delegateb
elected to the Democratic convention, but
on the contrary prepared the ticket as
early as September 15. The Call on that
date published the ticket. Before the
convention adjourned Democratic aspir
ants who did not take orders from McXab
knew that they had been duped and be
trayed. Many resolute Democratic voters
and especially those who rally around
the free silver standard of Bryan, believe
now that Democratic defeat in this
municipal contest would be better for the
party In the coming great campaign of
1900 than the success of the McNab-
Phelan dynasty. It Is highly probable,
therefore, that Dr. Cleveland, the nominee
of the People's party, will receive a large.
Democratic vote.
Phelan is already hard at work In his
efforts to conciliate the straight-out Dem
ocrats. Before the primary election he
declined to attend a meeting of the Demo
cratlc Central Club, on the ground that It
was a Buckley Democratic organization.
Since he learned that the Republicans
were everywhere lining up for Horace
Davis he has consented to address the
Central Club.
The Republicans are conducting a vig
orous, united and effective campaign. If
the leaders succeed in bringing out a full
Republican vote. Horace Davis will se
cure a handsome plurality for Mayor on
election day. The attendance at the great
Republican mass meeting at Metropolitan
Temple last Saturday night, and the suc
cess of the district meetings last night,
indicate that the people are alive to the
importance of the struggle.
To-night Horace Davis and other speak
ers will address the people of the Thirty
second Assembly District at the Pntrero
Opera-house. Mr. Davis will surely se
cure a gnat ovation from the working
men of that quarter of the city, as he is
a toiler himself. He has worked his own
way forward in life, unaided by inherited
millions. He is In touch and sympathy
with his fellow workers and deserves the
support of honest tollers.
A joint meeting of the voters of the
Forty-fourth and Forty-fifth Assemhly
Dletricts will be had at Garibaldi Hail
on Broadway to-night. Mr. Davis and
other candidates will address that meet-
Ing.
seem difficult to more effectively merge two
separate bodies into one. Besides, in the Con
stitutional Convention of ]S7S-!i the city and
county of Can Francisco was referred to and
treated as a merged and consolidated mu
nicipal government, and It was then, as now,
the only municipal government of that kind In
he State.
That portion of section 7 of article XI of the
constitution where merged and consolidated
municipal. governments are referred to has not
been changed Blnce It was reported to the
[Convention by the Committee on Municipal Cor
porations, an,d the debates show that the terms
there used referred to a municipal government
like that of the city and county of San Fran
:isco. During the debate on the various amend
merits proposed to that portion of section 7
referring to the two houses of legislation (since
annulled by constitutional amendment), Judge
Hager. the chairman of the committee, in re
plying, said: "I had no idea that this section
was going to create so much difficulty in the
convention or receive so much apparent oppo
sition. The section as drawn was intended to
be for the city of San Francisco." (Debates of
the Constitutional Convention, p. 1058.)
Those remarks of Judge Hager were not ques
tioned by any member, and it is fair, therefore,
a^ a^ a^ a^ a^ a^ a^ a^ a^ a^ a^ a _ to assume that
the convention
understood that
when using the
term "merged
and consolidated
into one munlcl-
pal government"
HI it had reference
at that lime only
v to tie city ami
county of San
Francisco, and also to any .similar consolidated
corporation that might thereafter be created.
When the following section, eight (then sec
tion 9), providing for freeholders' charters was
under debate, Judge Hager remarked: "This
applies strictly and only to the city and county
of San Francisco." (The section originally re
quired a population of more than 100.00 to en
title the inhabitants to such city to frame such
a charter.) He further said: "I cannot see
that any evil will come from it: we have this
peculiar government there, a consolidated city
and county government. I do not agree with
my friend from Sacramento that the tendency
is" to multiply offices. The tendency is to re
duce the number of offices. Instead of having
a set of city officers and a set of county of
ficer? they are consolidated. We have a Sheriff
who is the Sheriff of the county and of the city.
• • • We have a Tax Collector, and we have
an Auditor that acts for both; formerly we had
one for each. The tendency of an consolidated
government is to reduce the offices! from two to
one in every case, and reduce the expense in
every particular, and not, as the gentleman
said, for the purpose of multiplying offices
It is further contended by the appellant that
section 814 of article XI is invalid, for the rea
son that It was submitted to the people under
the general law passed March 7, 1&83, providing
for the submission of constitutional amend
ments, instead of being submitted specially by
the Legislature proposing the amendment.
(Stats. I&S3, 63.) _.
This contention is entirely untenable. The
amendment to section 6 of the same article, by
Views of the
Late
Judge Hager.
the insertion vi
the words "ex
cept In municipal
affairs," was sub
mitted and adopt
ed at the same
time and in the
game manner as
section 8 1 ,-., now
under considera
tion, and the va
lidity of that
" t
The Contention
Is Not
Well Made.
amendment has been considered and sustained
by this court. Besides, there are many other
amendments that have been in like manner
submitted and adopted since the passage ot the
act of ISS3. There is no constitutional objection
to the passage of such an act. and that bring
the case. It is entirely proper for the Legisla
ture to provide by general, Instead or special,
legislation for submitting constitutional amend
ments to the people.
The causes leading- up to the adoption of con
stitutional amendment section BH are well
known. In the Freeholders' charter of the city
of Los Angeles provision was made for the es
tablishment of a Police Court and the election
of Judges thereof. In People vs. Teal, 85 Cal .
333. it was held by this court that sue* pro
vision of that charter was Invalid, for the rea
son that Inferior courts, Including Police
Courts, could only be established as provided
by article VI, concerning the judicial power of
the State, and that it 18 there provided that the
Legislature may establish Inferior courts in any
incorporated city or town, or city and county;
and this meant that an act must be passed
by the Legislature in the form and manner
prescribed in article IV, legislative department,
and that the. approval of the Freeholders' char
ter by a vote of the two houses of the Leg
islature was not equivalent to the passage of
a Itw as provided in said legislative article.
Hence the new section. Si* of article XI of the
constitution, subdivision 1, confers, in express
terms, the power to provide in Freeholders'
charters "for the constitution, regulation, gov
ernment and jurisdiction of Police Courts, and
for the manner In which,' the times at which
and the terms for which the Judges of such
courts shall be elected or appointed, and for
the compensation of such Judges and their
clerks and attaches." And to remove any
doubt that may have previously existed con
cerning the status of officers of the class prose
cuting this action in merged and consolidated
municipalities It Is further- expressly provided
In the amended section. 8%. that It shall be
competent In a Freeholders' charter of such
consolidated government to provide for the
election of such officers for such municipality.
There Is no room for doubt, therefore, as to the
purpose of the Legislature in proposing said
amended section S>« of article XI, or <•» the
people in voting upon and approving the same.
It Is contended, however, on the part of the
appellants that the provisions of said amended
section *'<>. un-
der consldpratlon,
cannot be carried ;
out, for the rea- i
son that it would
conflict with the
general law of
the State estab
lishing a uniform
system of county I
and township gov-
-► ♦-
No Conflict
With the
General Law.
i — 1
4 •>>
eminent; In other ,
words, that the law (and a Freeholders' char
ter adopted as provided for In th constitution
Is a law of the highest grade) cannot be
passed, although in pursuance of express
power granted by the constitution, because it i
may perhaps Infringe upon some other law.
The rule of construction invoked by appellants
seems to be that a provision in a law or con- I
stitution In reference to a particular matter Is
Inoperative and void if it be inconsistent with
the general provisions of said law or constitu- ;
tion. . The direct opposite is the true con
struction In such cases.
"The more specific provision controls, the gen
eral, without regard to their comparative
dates; the two acts, operating together, and
reither working the repeal of the other."
(Bishop's Written Laws, sections 112-128; Des
mond vs. Dunn." 5."i Cal.. 247; Dwarris on Stat- j
utes. 7CB; ' Cooler's Const. Llm., 63; Common
wealth vs. Council , f Montrose, 52 Perm. St., !
351; Coxe vs. State, I4t X. V., 336; People ex
rel. vs. Keller, 157 X. V.. 9T; State vs. Kelly. '
24 X. J. Law. 75; McOarsh vs. State, etc.. 34 ■■
X. .1. Law, .'O9; State vs. City of Trenton. 38
X. .1. Lew. 64: Crane vs. Reeder, 22 Mich., 323.)
Under this rule of construction it would be
Immaterial whether the general county gov-
• •rnmem act ap
plies to the coun- ■
ty of San Fran
cisco or not; for
although said new i
section B'4. of
article XI. may
conflict with other \
sections of the
same article, pro
viding for a uni
form svatpm nf
County Government
Act Does
Not Apply Here. !
i 1
county and township government. It would still
be valid as to the particular cases for which
It Is intended, for In such case the particular !
and the general both stand together, neither
abrogates the other, the former furnishing the
rule for the Freeholders' charter, the latter
for all other cases.
But the act establishing a uniform system
of county and township government does not !
and never has applied to the county of San
Francisco, in the sense claimed by the appel
lants. The first section provides that the sev
eral counties of this State, as they now exist,
and such others as may be hereafter organized.'
are bodies corporate and politic and as such
have the power specified In said act. Among
those are the power to sup and to be sued, to
purchase and hold land within its limits, to
make contracts, and purchase and hold per- '
sonal property as may be necssary to the exer- '.
cisc of its powers, to manage and dispose of
•its property as the Interests of its, lnhabitants
may require.' to levy and collect such taxes
.as urn authorized by law. Trip county of San
Francisco, as already shown, since the passage
of the consolidation act. has never, as such,
owned or possessed any property or performed
any of the acts of- a corporate body. Further, !
the general law provides that ■ "each county ;
must have a board of supervisors consisting of
five members." The county of San Francisco '
never has had such a board, or any board of
supervisors since, the consolidation act. The
general county government act also provides
for justices of the peace and constables In the ;
several townships of the county, and there are
no justices of the peace or constables in the I
townships of the county of San Francisco, since I
there are no townships In San Francisco. In !
fact. It Is toe obvious for question or argument
that the general law establishing- a uniform
system of county government does not apply to
the city and county of San Francisco. Further,
section 8 of article XI, as it now stands, de
clares that when said charter is approved as !
therein provided, "It shall become the charter i
of such city, ' or if such city he consolidated
with a county, then for such city and county '
and shall become the organic law thereof, arid
supersede any existing charter, and all amend- j
ments thereof, and all laws inconsistent with
such charter." .* A the section originally stood j
it read, "All special laws inconsistent with
such charter." The purpose of the amendment
is In line with other amendments to the other :
section* of the article in question, and would
seem to remove all doubt that such charters are
not subject to existing laws, whether general
or special. Judgment affirmed.
VAN DYKE, J.
We concur:
McFARLAXD, J.,
GAROUTTE. J.,
BEATTY. C. J.,
HARRISON. J.
I concur In the Judgment. . TEMPLE 3
I concur In the judgment solely on the ground I
DR. KILMER'S^SWAMP^ROOT^ -
THOUSANDS HAVE KIDNEY
TROUBLE AND DON'T KNOW IT
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• , — .
ITS MARVELOUS SUCCESS IN ALL KIDNEY, BLADDER
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The only thing that will do this is Dp. Kilmer's Swamp- Root,
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It used to be considered that only urinary troubles were to be
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deflnltelj settles the question Involved in favor
! of the contention of respond)
MfFARLAXD, J.
Improved Order of Bed Men.
Greai Chief of Records Bllsa has re- 1
ceived from Past Grout Sachem Burgman
a fine photograph of the representatives
to the Great Council of the United States,
taken before the once residence of George I
Washington ai Mount Vernon.
The great chief of records has issued a ■
handy directory of all the tribes ami
councils. .The booklet also contains a
l/trTl Sfiakiior-madeW
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1 If you are to get an overcoat this winter it B
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great deal of matter of value to the mem
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Great Junior Sagamore Holder and a
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matter of organizing a new council of the
Degree of Pocahontas. They have already
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which will be called Xakomis, instituted
in a short time.
He — He that courts and runs away will
live to court another day.
She— But he that courts and does no*
wed. may find himself in court instead.