Staude v. Board of Election Commissioners

Ross, J.:

The question-in this case is whether, by virtue of the Act of the Legislature approved March 7, 1881, and commonly known as the-“Hartson Act,” an election of the elective officers of the City and County of San Francisco is required to be held at the general election to occur in November of the present year.

That the Legislature intended the provisions of the Act to apply to San Francisco is not denied. Indeed, it could not be successfully denied, for it provides in terms for the election of all elective county, city and county, and township officers, with certain enumerated exceptions; and we know, judicially, that San Francisco is the only “ city and county” within the State. The position of the respondents, however, is that the Consolidation Act of that city and county, which provides that the elections therein shall be held in the odd-numbered years, is unaffected by the provisions of the Act in question. And this, it is said, because of the provisions of the Constitution.

By Section 6 of Article xi. of that instrument it is provided that “ corporations for municipal purposes shall not be created by special laws; but the legislature, by general laws, shall provide for the incorporation, organization and classification, in proportion to population, of cities and towns, which laws may be altered, amended or repealed.” This provision is clearly prospective. But the framers of the Constitution, recognizing the fact that there were municipal corporations *320 already in existence, provided in the same section as follows: “Cities and towns heretofore organized or incorporated may become organized under such general laws whenever a majority of the electors voting at a general election shall so determine, and shall organize in conformity therewith.” And by the succeeding section the provisions of the Constitution applicable to cities, and, also those applicable to counties, so far as not inconsistent or not prohibited to cities, are made applicable to consolidated city and county governments. If, therefore, the legislature has, by a general law, provided for the incorporation, organization and classification, in proportion to population, of cities and towns, or, if not, whenever it shall do so, the city and county of San Francisco may become organized under such general law whenever a majority of its electors voting at a general election shall so determine, and shall organize in conformity therewith. And until a majority of such electors do so determine, the Consolidation Act of the city and county can not be vacated or abrogated by any general act of incorporation. (Desmond v. Dunn, 55 Cal. 242.) But whether the city and county of San Francisco elects to organize under such general laws or to continue its existence under the Consolidation Act, it is subject to and controlled by general laws; for in the same section of the Constitution, in which the then existing city and town organizations are recognized, and the continuance of their existing charters permitted, it is declared that “cities or towns heretofore or hereafter organized, and all charters thereof framed or adopted by authority of this Constitution, shall be subject to and controlled by general laws.”

The framers of the instrument meant something when they inserted this language in it, and we are not at liberty to hold that they did not mean what they said. Giving, as they did, to all cities and towns, and cities and counties, the right to organize under a general act of incorporation, which the Legislature was directed to pass, or to continue their existence under their existing charters, as they might elect, they nevertheless said that whichever course should he pursued, such cities and towns, and cities and counties, should be subject to and controlled by general laws—such general laws as should be passed by the Legislature other than those for the *321 “ incorporation, organization and classification” of cities and towns. The Constitution has provided, in effect, that the city and county of San Francisco shall not be compelled to surrender its present charter for one it does not want; and, further, that its charter shall not be changed by special legislation, directly nor indirectly, under the guise of laws relating to cities, or cities and counties, containing a population of more than one hundred thousand inhabitants. At the same time, recognizing the fact that the city and county of San Francisco remains a subdivision of the State, the Constitution has said, in effect, that it, as well as all other cities and towns heretofore or hereafter organized, shall be subject to and controlled by such general laws as the Legislature shall enact other than those for the incorporation, organization and classification, in proportion to population, of cities and towns. We do not perceive the danger suggested by counsel for respondents, of the Consolidation Act being “ eaten away” by such legislation. It can not, as already observed, be supplanted by a general Act of incorporation without the will of the people expressed at the. polls, nor can it be affected by special legislation; and it is not probable that such general laws as the Legislature may enact in conflict with its provisions will seriously affect it. -- But be that as it may, the Constitution has expressly declared that it shall be subject to and controlled by such laws. Such a law, in our opinion, is the Hartson Act, which simply provides for a uniform system of elections for the elective county, city and county, and township officers in the State on the even-numbered years, commencing in the year 1882.

It is unnecessary here to speak of the further provision contained in Section 8 of Article xi., giving to any city containing a population of more than one hundred thousand inhabitants authority to frame a charter for its own government, consistent with and subject to the Constitution and laws of this State, by causing a Board of fifteen freeholders to be elected to prepare and propose a charter, etc.

With respect to the offices of Police Commissioners and Chief of Police, we are of opinion that the doctrine of the case of People v. Provines, 34 Cal. 520, establishes the validity *322 of the Act of the Legislature approved April 1,1878. By that Act the judges of the- late Fifteenth, Twelfth, and Fourth Judicial Districts of the State were empowered and required to meet and choose three citizens of the City and County of San Francisco, householders in good repute, without respect to their politics, who, together with the Chief of Police, were constituted the Board of Police Commissioners for said city and county. The Act prescribed the powers and duties of the Board, and further provided that from and after the official term of the then Chief of Police, his office should “ cease to he elective, and shall be filled by the Commissioners, whose appointment is herein provided for.”

The objection urged to the Act is that the judicial officers of the State could not he charged with the duties or powers prescribed, because of the Third Article of the then existing Constitution, which was in these words: “ The powers of the government of the State of California shall be divided into three separate departments—the Legislative, the Executive, and Judicial—and no person charged with the exercise of powers properly belonging to one of these departments shall exercise any functions appertaining to either of the others except in the cases hereinafter expressly directed or permitted.”

In People v. Provines, the Court reviewed all of the cases in this Court in which this Article of the Constitution was under consideration, from and including Burgoyne’s Case in the fifth to and including Sanderson’s in the thirtieth of California Reports, “for the double purpose,” as expressed by the Court, “of ascertaining precisely what has been said in relation to the present question, and of stating our conclusions in relation to the soundness of each case, in order that there may be, hereafter, no doubt as to which are to be regarded as law, and which not.” And the conclusion of the Court in Provines’ Case was, that the departments of which the Constitution speaks, “ and in respect to which it provides that no person employed in one shall be employed in ■ either of the other two, are the Departments of the State Government, as expressly defined and limited in the Constitution; and its meaning is, that no member of the Legislative Department, as there defined, shall at the same time he a member of the Executive or Judicial Departments, as there defined, and vice *323 versa. That is to say, no judicial officer shall he Governor, Lieutenant-governor, Secretary of State, Controller, Treasurer, Attorney-general, or Surveyor-general, all of whom, and none others, in the sense of the third Article of the Constitution, belong to and constitute the Executive Department of the Government; or a member of the Senate or Assembly, which two bodies, and none other, in the sense of the third Article of the Constitution, constitute the Legislative Department. So of each officer of the Executive Department—he cannot belong to the Judicial or Legislative Department. That is to say, he can hold no judicial office, nor the office of Senator or member of the Assembly. And so of Senators and members of the Assembly—they can hold no judicial or executive offices comprised within the Executive and Judicial Departments, as defined in Articles v. and vi. In short, the third Article of the Constitution means that the powers of the State Government, not the local governments thereafter to be created by the Legislature, shall be divided into three departments, and that the members of one department shall have no part or lot in the management of the affairs of either of the other departments, ‘except in the cases‘hereinafter expressly directed or permitted.’ ”

As thus expounded, it is obvious that the powers conferred and duties imposed on the District Judges'by the Act of April 1, 1878, did not come within the constitutional inhibition. This exposition of the Constitution by the highest Court in existence under it, and acted on by the Legislature, should be accepted by us in regard to laws so passed, without regard to our own views in respect to the correctness or incorrectness of the doctrine. It results that the Police Commissioners and Chief of Police are not elective officers.

Demurrer overruled.

Thornton, J., and Morrison, C. J., concurred.

McKee, J., concurred in the judgment.