I concur in affirming the judgment. The only question to be determined is whether the complaint shows that the members of the board of health authorized by the charter of San Francisco have "usurped, intruded into, or unlawfully hold or exercise any public office." If that board of health has a legal existence, its members *Page 421 cannot be said to have either usurped or intruded into any public office, or to unlawfully hold or exercise such office. The supervision and control of the sanitary condition of a city, and provision for the health of its inhabitants, are, as is shown in the opinion of Mr. Justice Temple, eminently a "municipal affair"; and the establishment of a board of health which shall have the management and control of that "affair" is an appropriate provision of a municipal charter. To the extent that the provisions of the charter upon this subject are within this "municipal affair," to that extent the board of health created by the charter is not an illegal body. Whether any of the provisions of the charter upon this subject are inconsistent with the general laws of the state, or whether there are provisions in the general laws which are not covered by the provisions of the charter, is not involved in this case.
Neither are we now called upon to define the respective authority of the board of health created by the charter and of that authorized by the Political Code. So long as the functions to be exercised by the respective boards are not identical, there can be no inconsistency in permitting each to perform the functions prescribed for it; but to the extent that the functions prescribed for the one authorized by the Political Code are of a municipal character, those provisions have been superseded by the charter.
Garoutte, J., concurred with Harrison, J.