Wood v. Board of Election Commissioners

Sharpstein, J.:

The question which has to be determined in this case is whether the special act of April 2d, 1866, as amended March 7th, 1872, which fixes the times of holding elections for city and county officers of the City and County of San Francisco, is repealed by an amendment of the Political Code approved March 7th, 1881.

It is necesgary in the first place to ascertain and determine the political status of the “ City and County of San Francisco” under the Constitution and laws of this State. Section 1 of article i of the act of April 19th, 1856, commonly known as “ the Consolidation Act,” declares that, “ The corporation, or body politic 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 perpetual succession, may sue and defend in all Courts and places, and in all matters and proceedings whatever, and may have and may use a common seal, and the same may alter at pleasure, and may purchase, receive,'hold, and enjoy real and personal property, and sell, convey, mortgage, and dispose of the same for the common benefit.” It then proceeds to define the boundaries of said city and county, and transfers all the property and effects of both the late city and county to the corporation formed by the consolidation of both.

Section 6 provides for the election of officers for said city and county, and fixes their terms of office. This section has been repeatedly amended, but the provisions of the preceding-sections have never been changed.

It is as clear as language could make it, that the present “City and County of San Francisco” is a continuation of the late municipal corporation known as the “ City of San Francisco.” Under the Consolidation Act and the acts amendatory thereof, it is nothing more nor less than a municipal corporation, and the question whether a general law affects it or not must be solved by rules which have been established for determining when a general law does or does not apply to a municipal corporation. Ordinarily, a general law, when it relates to a matter concerning which no provision is made in the charter of a municipal corporation or any special act relating exclusively thereto, applies to such corporation the same as to any other political subdivision of the State. But “ it is a principle of very extensive operation that statutes of a general nature do not repeal by implication charters and special acts passed for the benefit of particular municipalities.” (1 Dill. Mun. Corp., § 87.)

Such repeals are not favored. And it has accordingly been held that where the provisions of a city charter and the general law upon the same subject were conflicting and irreconcilable, the provisions of the former were not repealed by the latter. (S. S. Bank v. Davis, 1 McCarter, 286; State v. Minton, 1 Dutch. 529; State v. Clark, id. 54; Walworth Co. v. Whitewater, 17 Wis. 193; Janesville v. Markoe, 18 id. 350; State v. Branin, 3 Zab. 484.) And a clause in the general statute repealing all acts and parts of acts in conflict with it, although sufficiently comprehensive to include any repugnant provision of law wherever found, has been held not to repeal provisions of city charters which were repugnant to such general law. (Walworth Co. v. Whitewater, Janesville v. Markoe, and State v. Branin, supra.)

It is true that in the title and in the body of the act of 1881, city and comity officers are mentioned in connection with county and township officers. But the significance of that is not so important as it might at first blush appear.

It is only in cases where the charter of a municipal corporation contains provisions upon a certain subject, that a conflicting general law upon the same subject, is inoperative, within such municipal corporation. If neither the Consolidation Act nor any special statute relating exclusively to the City and County of San Francisco had provided at what time elections should be held for the officers of said city and county, the general statute upon that subject would have had the same force and effect within said city and comity as it has elsewhere. It doubtless applies to municipal corporations whose charters contain no provision in conflict with that of the general statute upon that subject. And to none other, I think. (State v. Mayor, 33 N. J. Law, 57; Cross v. Mayor, 18 N. J. Eq. 305.) The reason of the rule is doubtless this: Whether a general law repeals a charter or other special act in conflict with it, depends upon the intention of the Legislature; and the Courts have always assumed that if the Legislature intended by a general statute to divest a municipal corporation of any right, privilege, or power conferred upon it by a special act, the latter would be in some way unmistakably referred to in such general statute. . Perhaps a clause in the latter repealing all special acts in conflict with it might be sufficient. (Bank v. Bridges, 30 N. J. Law, 112; State v. Morristown, 33 id. 57.) But in the absence of any reference whatever in the general statute to charters or municipal corporations or special acts relating exclusively thereto, the rule is well settled that the provisions of such charters and special acts are not affected by the provisions of a general statute repugnant thereto. (Noy’s Maxims, 19; Gregory’s Case, 6 Co. 20.)

There is another circumstance which seems to me entitled to some consideration in the discussion of this question. The act of 1881 is entitled “An act to amend section 4109 of ‘An act to’ establish a Political Code,’ approved March 12th, 1872, relating to the election of county, city and county, and township officers, and to repeal sections 4024, 4027, and 4111 of said Political Code.”

If it was the intention of the Legislature to amend or repeal the provisions of any other statute than that specified, it is difficult to conceive of a title more repugnant than this is, to that provision of the Constitution which requires that the subject of every act shall be expressed in its title. The subject of this act, as expressed in its title, is the amendment and repeal of certain specified sections of the Political Code. That is its full scope and object, as expressed in its title. And as to any subject embraced in the act, and not expressed in its title, the act is void. (Const., art. iv, § 24.) If it was the intention to amend or repeal any of the provisions of any other statute or statutes, it should have been expressed in the title. As it is not, the Constitution limits its operation to the subject expressed in the title. Expressio unius est exclusio alterius. If intended to repeal or amend any special act relating exclusively to the City and County of San Francisco, no title could be more misleading than the one chosen to express that intention. And the test which Courts, in determining whether the subjects of acts were sufficiently expressed in their titles, have applied to them, is whether such titles were of a character to mislead the public or the members of the Legislature, as to the subjects embraced in such acts. As I view it, the Legislature has not in the body of the act of 1881 attempted to repeal the special act relating to the election of officers, for the City and County of San Francisco, and that if such intention were manifest in the body of the act, the failure to express it in its title would render it void.

There is still another reason for holding that the Legislature did not intend by the passage of said general act to repeal said special act. The general act was intended to, and has become a part of the Political Code, and nothing in that code can affect the provisions of the Consolidation Act or any act amending or supplementing it. (Pol. Code, 19.) Upon this question the code is to be construed as it would be if it had been originally enacted in its present form.

An impression, however, seems to prevail, to some extent, that some of the provisions of the new Constitution have a bearing upon this question. Under the Constitution, corporations for municipal purposes can not be created -by special laws, and those organized before as well as those which might be organized after the Constitution went into effect are subject to and controlled by general laws, i. e., general laws relating to such corporations, or relating to subjects not provided for in the charters of such corporations. (Const., art. xi, § 6.) A city or a city and county, by becoming incorporated, does not cease to be a component part of the State. It must have, within it, officers who will perform duties corresponding to those performed by county officers. This was clearly recognized by the Legislature which passed the Consolidation Act of the City and County of San Francisco. Section 4 of that act provides that, “All the powers and duties of county officers, excepting those relating to Supervisors and Boards of Supervisors, so far as the same are not repealed nor altered by the provisions of this act, shall be considered as applicable to officers of the said City and County of San Francisco, acting or elected under this act.”

It is contended, however, that a general law, fixing the time for the election of county officers, applies to a consolidated municipal government, because it is provided in section 7 of article xi of the Constitution, that the provisions of it “applicable to counties, so far as not inconsistent or not prohibited to cities, shall be applicable to such consolidated government.” This probably means that any provisions of the Constitution applicable to counties, which are not inconsistent with any provision of the Constitution, applicable to cities, shall be applicable to a consolidated government, unless such provisions are prohibited to cities by the Constitution. But the provisions of this section are clearly prospective, and have reference to such city and county governments as might be merged into one municipal government after the Constitution went into effect. This is made apparent, not only by the language of that section, but more clearly so by a special provision in section 6, applicable to cities incorporated and organized prior to the adoption of the new Constitution, to which the option is given to organize under general laws, when such shall he passed for their incorporation, or to continue to be municipal corporations under the charters or acts of incorporation passed prior to the adoption of the Constitution. This, as was said in Desmond v. Dunn, 55 Cal. 242, is clearly implied, and it would require very plain language to convince me that such was not the intention of the framers of the Constitution.

Neither the act of April 2d, 1866, nor of March 30th, 1872, provides for the election of a Police Judge at the time of the election of other officers of said city and county; and the office of Chief of Police is no longer elective.

Section 4109 of the Political Code before the amendment of March 7th, 1881, contained a special clause in which the time of the election and term of office of the Assessor of the City and County of San Francisco are fixed. Neither as originally enacted, nor as amended, does that section provide for the election of Assessor this year. It clearly follows that an Assessor is not one of the officers to be elected this year in said city and county.

With the exception of Police Court Judges, Chief of Police, and Assessor, all the elective officers of the City and County of San Francisco must be elected at the time .fixed by the acts of April 2d, 1866, and March 30th, 1872. I think the writ should issue as prayed.