I concur in the judgment. But I am of the opinion that the "framing of a charter" by a city "for its own government" under the authority given by section 8, article XI, is a municipal affair, and I also think there was in the charter of the city and county of San Francisco a provision under which the elections here questioned might have been held. I am, therefore, unable to concur in either of the opinions already prepared.
It is unfortunate that when section 6, article XI, was amended its meaning should be left in doubt. Before amendment it had been the subject of much contention, and we were entitled to expect that when amended there would be no ambiguity left. The clause amended had been construed and its meaning determined by numerous decisions of this court in which there was no conflict. It was contended on one side that the general laws, which the constitution provided should control cities and towns and the charters thereof, were those general laws which operated upon all persons throughout the state, such as the Criminal Code, the Code of Civil Procedure, the statute of frauds, et cetera. But the court steadily ruled against this contention and held that the restriction did not "at all affect the power to control or regulate the charters of all municipal corporations by laws general in their character. This power is expressly recognized by the last clause of section 6, above cited, where it is declared that `cities and towns heretofore or hereafter organized, and all charters thereof framed and adopted by authority of this constitution, shall be subject to and controlled by general laws.'" (Thomason v. Ashworth, 73 Cal. 73.) Many *Page 401 attempts were made to overthrow this conclusion, and in various cases earnest dissenting opinions were filed insisting upon a contrary view. But, nothwithstanding many changes in the personnel of the court, that ruling was never reversed or modified. It was argued by those who favored the view adopted by the court that the last clause of section 6 was put in for the express purpose of showing that, although a novel municipal-organization was authorized which secured some degree of home rule, and which had been made "immune" from attacks by special laws, they were nevertheless subject to general laws which would control and might alter their charters. It was certainly an assurance of legislative power and authority over such charters for some purposes. General laws like the statute of frauds or the Code of Civil Procedure do not and could not control cities and towns as such, and certainly not their charters. And, even if there were any way in which they could indirectly do so, it is impossible to imagine that the members of the constitutional convention apprehended any danger that it could be held that such laws did not prevail in cities and towns. But, if the contrary view was intended, there was reason to fear that the construction would be contended for which actually was asserted notwithstanding the precaution, that such charters could not be controlled by general laws. At all events, this rule was persistently maintained by this court, and in the face of and because of it the clause was amended.
That the form of the amendment is unfortunate is, in my opinion, demonstrated by the two opinions filed in this case. They differ widely as to what are municipal affairs within the meaning of the amendment. The language is in itself quite unambiguous, but the difficulty arises solely from the fact that the exception, construed in the light of the meaning uniformly given to the unamended clause by this court, and also giving the language its obvious import, plainly includes the entire proposition excepted to. I think we must suppose that the author of the amendment had in mind the contention of the justices who dissented from the established doctrine, and that it means that the legislature cannot by any general law add to, modify, or control the charter of any municipality. This is also the natural force and effect of the *Page 402 unambiguous language used. And if it be admitted that all the power in terms granted is expressly denied by the exception, still it must stand as an inhibition upon any legislation which would directly affect cities and towns as municipal corporations. Indeed, the first few clauses in section 6 in substance declare that any purpose for which cities and towns are organized are municipal affairs. The word "affairs" would include all possible laws. Municipal means simply pertaining to a municipality. It is not permitted to construe unambiguous language used in statutes.
If the legislature may still control such charters by general laws in regard to matters not expressly provided for, a wide margin of uncertainty is still left and a charter by such laws may yet be made. "Quite another [municipal] affair." Presumptively that which was omitted was not desired.
The other definition, as I understand it, confines the immunity to municipal business. The phrase conveys no definite meaning to my mind. Does it include such police regulations as might prohibit opium joints, or fast driving in the streets, and a thousand and one other matters which make up the city government?
I submit that there is no warrant in any language found in the constitution for either construction. To hold, notwithstanding the plain language of the constitution, that these charters are to be practically amended in some respects, or by some general laws, in regard to municipal affairs, is to disregard the words of the amendment and not to construe it. It may be found that the municipal offspring was badly crippled in the accouchement.
My views do not require me to discuss at length many matters found important in the other opinions. I think, however, the constitution authorizes the city to frame a charter for its own government by causing fifteen freeholders to be elected who prohac vice represent the city. It is none the less the act of the city, as such, because a referendum is provided to its constituent members, who, collectively incorporated, are the municipality. I think there was a provision in its charter under which the elections called in question could and should have been held, and that the election was not held as this charter provision required. I refer, of course, to the act of 1878. *Page 403
But I think we are neither authorized nor required to determine whether the municipal elections were duly and regularly conducted. That was settled by the legislature when it enacted the charter into a law. This position is admitted in People v.Gunn, 85 Cal. 238, if the legislature, as to the charter, is the law-making power. It is there said, however, that as to the charter the legislature is not the law-making power. This question was again reviewed in Ex parte Sparks, 120 Cal. 395; some of the justices, though not constituting a majority of the court, held that since an amendment was made to the constitution, providing that the charter may be approved by joint resolution, such charter becomes the law of the state through the action of the legislature. It was said: "It prevails and has force as a law of this state, and is not made a law by the people of the municipality or by virtue of authority delegated to them. It is proposed by the municipality, and accepted and passed into law by the legislature, or rejected as it shall see fit." Many reasons additional to these stated in Ex parte Sparks, supra, might be given, but it is unnecessary, for all the attorneys in this case admit that such is the law — that the doctrine laid down in Exparte Sparks, supra, is the true doctrine.
It was necessary for the legislature to determine that the charter had been framed by the city for its own government before it proceeded to enact it into a law. No record was required to be kept which should furnish conclusive evidence as to what was actually done in holding these elections. No private rights were involved. No one had a peculiar interest in the question. The whole proceeding was governmental and political. And the fact that the legislature enacted the charter into a law is conclusive evidence that it made the proper investigation and found the requisite facts which would warrant its action. Many cases upon this subject are cited in Stevenson v. Colgan, 91 Cal, 649, 25 Am. St. Rep. 230, where the principle is fully discussed.
But I contend that even if it were admitted that the function of the legislature is correctly stated in People v. Gunn, supra, still, on principle, the action of the legislature is conclusive. If the action is legislative in its character — that is, something that is within the domain of the legislature as a *Page 404 co-ordinate department of the government — its action is conclusive upon the other departments. This rule applies to each department — to the executive as well as to any other. In the performance of a purely executive act the governor cannot be controlled, and all his determinations of facts which induced his action are conclusive. This is illustrated in the power of the executive to declare martial law, or to suspend the right to issue certain writs in case of insurrection or rebellion. Possibly, in regard to matters where the law requires records to be kept and makes them conclusive on all departments, this may not be so. We may look to see if the governor or the legislature has acted in the mode required by the constitution. That is not the question here. Admittedly, the legislature pursued the method required by the constitution, and the question is as to the effect of legislative action which is regular and valid. There is nothing giving peculiar force to the action of the legislature in enacting a statute rather than any other action which is made a function of that department of the government by the constitution. To approve or disapprove a freeholder's charter is especially committed to the legislature by the constitution. Whether it performs this duty by resolution or by bill, it is equally a legislative act which concludes the other two departments. If the legislature were to refuse to act at all upon a proposed charter no power could compel it to do so, simply because it is a peculiar function of the legislature. It approves or disapproves as a legislature, a co-ordinate department of the state government.